While same-gender couples are gaining matrimonial rights, parental rights are still a legal quagmire. While parental rights are automatically bestowed upon the biological parent of a child in a same-gender couple, the non-biological spouse/parent still faces a host of legal complications and challenges.
Because the Supreme Court has yet to rule on the specific issue of the parental rights of non-biological spouses/parents in a same-gender marriage, there is a tangled, often-contradictory, web of state laws governing such rights.
If you’re a same-gender couple, for example, some states and courts may not consider you a legal parent based solely on your marriage. And even in places where there are some protections under the law, same-gender couples can still experience discrimination and difficulty gaining all the same legal rights as married heterosexual couples. Indeed, it’s a real possibility that you could have total legal rights as a non-biological parent in one state, but drive across the border to a neighboring state and be a complete stranger to your child in the eyes of the law.
Given the murky nature of state laws, most legal experts advise same-gender couples that the best way to ensure you have full rights as a non-biological parent in every state is to obtain a second-parent adoption. The Supreme Court has ruled that the adoptive parental rights granted in one state must be respected in all states.
However, it can be extremely difficult for married same-gender couples even to adopt. In fact, seven states currently permit employees of state-licensed adoption agencies to refuse to grant an adoption if doing so violates their religious beliefs. In other states, however, the state law specifically forbids such discrimination.
Thankfully, there is a work around. Same-gender couples can achieve nearly the same parental rights that are granted through a second-parent adoption by using a combination of estate planning and family law protections. Moreover, gaining such rights in this manner will involve far less—if any—background screening and/or additional legal obstacles.
As your Personal Family Lawyer, I can offer a number of unique legal services to provide a non-biological, same-gender parent with as many parental rights as possible, without a full adoption.
For example, I can help couples name the non-biological parent as a legal guardian of the child, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes.
That way, if the biological parent becomes incapacitated or dies, his or her wishes are clearly known and stated, so the court can do what the parent would’ve wanted and keep the child in the non-biological parent’s care. Beyond that, there are also several other legal protections—living trusts, power of attorney, and health care directives—that can grant to offer the non-biological parent additional rights.
I can also create what are known as “co-parenting agreements,” legally binding arrangements that stipulate exactly how the child will be raised, what responsibility each partner has toward the child, and what kind of rights would exist if the couple splits or goes through a divorce.
If you’re in a same-gender marriage, or even involved in a committed partnership with someone of your own gender, and you want that person to stay in relationship with your kids (or yourself) should you become incapacitated, or you want that person financially provided for if you die, contact me to see what kind of protections we can help you put in place.