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.
NCLR, Lambda Legal, Marriage Equality and many other leading LGBT organizations still 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. 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.”
Being married and having a child born during the marraige does not automatically secure your parental rights or gurantee those rights will be fully respected. They can be challenged as your name on the birth certificate is a rebuttable presumption. An adoption or other court judgment of parentage is the surest way to make certain that you will be respected as a parent in every state, no matter where you travel or move. Without this, you could lose rights to your child if something happens to the other parent or if you break up depending on the circumstances and location. If you have an adoption or court judgment of parentage, every state should recognize it and the Supreme Court recently reinforced that rule of law in V.L. v. E.L., 577 U.S. ___ (2016).
According to www.marriageequalify.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 many adoptions, paternity actions, parentage cases and ART matters, I know that having your name on the birth certificate does not guarantee protections if your legal parentage is 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.
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.