According to 2010 US Census data (PDF), there are nearly 600,000 same-sex couples living in the US, and about 25 percent of them are raising children. Adoption and surrogacy, for example, are used more and more by same-sex couples to "complete" their families.
Like other couples and parents, same-sex relationships sometimes breakup. Unlike many opposite-sex marriages and relationships, however, things often get more complicated when it comes to dealing with children of same-sex couples. The states are scrambling to set parental rights for these couples, but there are no bright-line rules. Do you know your rights? You should, as well as some options for protecting them.
In the Courts
State lawmakers and the courts across the US are dealing with the special legal problems raised when gay and lesbian parents fight for parental rights like child support, custody and visitation. The states deal with these problems in different ways. For instance:
In New York, the state's highest court ruled that a lesbian, biological mother could sue her ex-partner for child support. The mother's claims that her ex-partner was a "parent" and responsible for the child's support was enough to support her right to sue for support.
In another case, the same court ruled that a lesbian could sue for child custody and visitation rights of a child. The child was born to her ex-partner through artificial insemination after the couple joined in a civil union in Vermont. The decision rested on the fact that the non-biological parent was in fact a "parent" under Vermont law, so she was entitled to be treated as a parent under New York law.
In Michigan, same-sex marriages aren't recognized and same-sex partners can't adopt each other's children. That set the stage for a battle. A lesbian couple raised three children before their 19-year relationship ended. The mother gave birth to the children after artificial insemination. Her ex-partner and non-biological "parent" filed a lawsuit for custody and visitation.
Ultimately, after about one year of non-stop legal battles, the ex-partner lost. A state appellate court ruled (PDF) that she wasn't a "parent" under state law and had no legal right or "standing" to sue for custody.
A Florida (PDF) judge ruled that a gay man who provided sperm for his lesbian friend's artificial insemination was the child's parent and not merely a sperm donor. The couple carefully planned out the pregnancy and agreed to be parents together, so he may have the right to sue for child custody and visitation.
As you can see, legal disputes between gay and lesbian parents can be complicated. This is mainly because the laws in many states don't specifically address these parents' rights and the courts are left to grapple with the problems. Some states do have special laws, however, so be sure to check the laws in your area for your parental rights and responsibilities.
Nonetheless, in general, some ways gay and lesbian parents may be able to protect their parental rights include:
1. Get married. Take advantage of the laws in your state making same-sex marriages or civil unions legal. Typically, you'll both be considered legal parents of any child born or adopted after the marriage. In addition, your rights as a parent will, typically, be honored in states that don't recognize same-sex marriages or civil unions.
2. Second Adoption or "co-parent adoption." In some states, non-biological parents may adopt their partners' biological or adopted child without terminating the biological parents' parental rights (usually adoption ends all parental rights). This process makes both partners legal, equal parents with all the parental rights and responsibilities that go with it.
This isn't available in all states, but things do change. In Florida, for example, gay and lesbian people couldn't adopt at all because the state had a "gay adoption ban." The ban was thrown out by the courts in late 2010.
3. Parentage judgment or a "paternity" or "maternity" judgment. Again, this isn't available in all states, but non-biological same-sex parents may be able to get a court order declaring them to be their child's legal parent. These actions are most commonly used in states that recognize same-sex marriages or civil unions.
4. Prove it. In some states, non-biological parents can get parental rights by proving they are in fact parents. This is called a de facto parent. You do this by proving you accepted your parental responsibilities, held yourself out as the child's parent with the other parent's permission and lived with the child after birth or adoption and developed a strong emotional bond with the child.
5. Parenting agreement. In any state, you and your partner can sign a parenting agreement where you spell out each other's rights and responsibilities when it comes to caring for and supporting the child, as well as custody and visitation issues. The legal effect of these agreements vary from state to state, though. In some states an agreement is a legally enforceable contract, but in others it may not be.
The important thing to remember is that your child is the most important part of the equation. Everyone can be happy if you and your partner keep this in mind and take some steps to protect and respect each others' rights.
Questions for Your Attorney
- Are second adoptions available in my state? How much will charge to help us with one?
- What should I do if my ex-partner doesn't follow the parenting agreement we signed after our child was born?
- If a grandparent can sue for visitation or custody, why can't a non-biological "parent."