The question of who a child’s legal parents are is one that doesn’t come up in most heterosexual relationships, but it is often central to the lives of same-sex partners raising children.
Parentage and the Law
A legal parent is a person who has the right to live with a child and make decisions about the child’s health, education, and well-being. Legal parents have an obligation to care for and support the child financially.
Each state has its own rules establishing who is and who is not a parent. Quite a few have adopted a set of laws called the Uniform Parentage Act (UPA) to govern parentage. In general, when a married heterosexual couple has a child or adopts a child together, both spouses are automatically considered legal parents with equal rights and responsibilities. And when an unmarried heterosexual couple has a child together and the father acknowledges paternity at birth, both partners are legal parents. In either of these situations, if the adults end their relationship, both parents have rights to custody and visitation with their children.
Unfortunately, the same rules don’t always apply to same-sex couples. In most of the marriage equality and marriage-equivalent states, the partners are treated like married spouses and both are considered parents of a child born during the marriage or registered partnership. However, because these rules apply to children “born” into the relationship, they benefit only lesbian couples in which one partner gives birth to a child while she is domestically partnered or married. The nonbiological parent’s name can go on the birth certificate immediately, making the parentage presumption one of the most valuable benefits of getting married or legally partnered.
In states that don’t have marriage or marriage-equivalent relationships, there is no automatic presumption that both partners in a same-sex couple are legal parents. This means that in many cases, only one person has parental rights unless the partners take some legal step, like an adoption, to establish rights for the second parent -- the parent without automatic legal rights. In lesbian couples, the legal parent is most commonly the partner who gave birth, and the nonbiological parent is the second parent. When a gay male couple uses a surrogate to carry a child that is biologically related only to one partner, the biological father will use a legal procedure to establish his rights, but unless his partner is included in that proceeding, the partner is the second parent.
And for couples of either sex when one partner adopts as a single person, the other partner is a second parent.
Taking Steps to Protect Your Parental Rights
The relationships between nonlegal second parents and their children are extremely vulnerable until the parents take steps to establish a legal relationship. If they fail to do so, the second parent may not be able to establish custody or seek visitation if the parents separate. (For more information about child custody issues when same-sex couples separate, see Same Sex Couples: Child Custody Issues.)
If you live in a state that allows second-parent adoption, do it. It’s generally not a very complicated process, and it shouldn’t be extremely expensive. Whatever it costs, it’s worth the security of knowing that your legal status reflects your reality -- and your child’s. You may also qualify for an adoption tax credit that provides a tax break for adoption expenses.
Some states don’t allow adoptions but do have other ways of establishing parentage, using either the UPA or procedures that have been established specifically for that state. However you can make it happen, make it happen.
If you live in a state that doesn’t allow same-sex adoptions or any equivalent procedure, there isn’t a reliable legal solution. In that case it’s important that at a minimum you and your partner sign a coparenting agreement that declares in no uncertain terms that you are both parents and should be considered so legally. Not every court will defer to such a document, but it may make a difference (and has in recent court cases).
In addition to the coparenting agreement, the legal parent should sign a will that grants custody to the second parent in the event of the legal parent’s death, as well as a guardianship nomination that names the second parent as guardian in the event of the legal parent’s incapacity. The legal parent should also authorize the second parent to obtain medical care for the child. Finally, both of you should make sure to tell family, friends, caregivers, teachers, and your pediatrician that you consider yourselves equal parents and you want to be treated that way. Along with your written coparenting agreement and the other documents you’ve prepared, this could serve as evidence in a later court case.
Just like couples who are married or legally partnered, we urge you to honor the agreements you’ve made and the realities of your relationship, and respect parent-child relationships that exist in reality, even if not in the eyes of the law.
For More Help
Because the methods for protecting your parental rights vary so widely from state to state, it is important that you consult a professional who can help you understand the rules that apply to your situation and the options available to you. If you don’t know how to find an attorney with experience in this area, a national organization like the National Center for Lesbian Rights, the ACLU, or Lambda Legal can help.
This article is adapted from Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow.
