Same-Sex Couples: Do We Still Need a Second Parent Adoption?

On June 26, 2015, the Supreme Court issued its opinion in the case Obergefell v. Hodges regarding the constitutionality of same-sex marriages in the United States. In a 5-4 decision written by Justice Kennedy, the Supreme Court has legalized marriage equality.  Thus, same-sex married couples marriages are recognized in all 50 states for all purposes under federal law. 

Being married when your child is born does not automatically secure your parental rights or guarantee those rights will be fully respected even though your marriage is recognized.  In fact, your parental rights can be challenged even if your name appears on your child's birth certificate because a birth certificate is an administrative document issued based on a marital presumption that can be rebutted.  An Adoption Decree is the surest way to make certain that you will be respected as a parent in every state, no matter where you work, travel or relocate to live.  Without an Adoption Decree, your parental rights to your child could be challenged if something happens to the other parent or if your marriage dissolves depending on the circumstances and location.  If you have an Final Decree of Adoption, every state will recognize the Final Decree and the Supreme Court recently reinforced that full faith and credit shall be given to final decrees entered in other states in its short and clear direction in V.L. v. E.L., 577 U.S. ___ (2016).  

NCLR, Lambda Legal, Marriage Equality Maryland and many other leading LGBT organizations strongly recommend that all non-biological parents get an adoption or parentage judgment from a court recognizing that they are both the legal parents of their child, even if they are married and even if they are listed as a parent on the birth certificate.  Parentage Judgments are issued in cases involving surrogacy.  See Protecting-Your-Family-After-Marriage-Equality from NCLR.  The www.marriageequality.org states that “Depending on your specific circumstances and where you live, marriage alone may not prevent a challenge to your parental rights if you are not a biological or adoptive parent whether you are a same-sex or a different-sex couple. Not all states fully respect non-biological parents, even when they are married, regardless of what the law requires. In addition, even if your parental rights are respected in the state where you live based on your marriage, you may be vulnerable when you travel or if you move to another state.”  According to www.marriageequality.org “marriage equality alone will not fully protect all LGBT parents…until we achieve full equality for all families, an adoption or court judgment is the only way to ensure that non-biological parents will be respected as legal parents in all fifty states.”

Having handled hundreds of adoptions, paternity actions, parentage cases and ART matters, I know that having your name on the birth certificate does not guarantee protection and legal parentage can be challenged.  This is partly because most states have not yet had a history of a gender neutral reading of the marital presumption statutes; some states have no parentage acts that provide for a statutory marital presumption and hostile states will do what they can in the coming months and years to thwart an easy and enforceable path for parentage decisions for child born into same-sex marriages.  Most states, when parentage is challenged, determine parentage based on DNA or an Adoption Decree so a birth certificate may not be sufficient in a challenge to confirm parentage until the laws catch up with reality.  

So, it is also our recommendation that until there are parentage acts that uniformly across the country expand the definition of marital presumptions to include gender neutral or inclusive language a second parent adoption or parentage judgment should be obtained by any non-biological parent. 

For clients who use a known donor this is even more important (it is for everyone but even more so with known donors) as the donor could be considered to be a legal father especially if you and your partner are not married.  In many jurisdictions unless you legally terminate any rights the Donor may have through a court proceeding the Donor may be able to establish rights in the future and seek visitation.  As happened in a case in Kansas, if a parent seeks any kind of government benefit, the government could bring a court case to establish the non-biological parent is not a parent and make the known donor a legal father and require him to pay for the benefit your child receives.

Spending a little time and money doing an adoption or getting a parentage judgment now can save you from being separated from your child and from spending thousands of dollars in legal fees later.   Please contact Jennifer at JFairfax@jenniferfairfax.com to talk about how we can complete your second parent adoption in just a few months after the child is born. 

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax