Marriage equality for all LGBT married couples was solidified with the June 26, 2015 Supreme Court decision of Obergefell v. Hodges. The Court held that the right to marry is a fundamental right inherent in liberty, and that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex married couples cannot be “deprived of that right and that liberty” which is “central to individual dignity and automonoy.” Many of us rejoiced at this decision. Nonetheless, it is unclear exactly how the Court’s decision will impact same-sex couples looking to have a child together. Consequently, these families must still take extra steps to ensure their parental rights.
Despite the significance of the Obergefell decision, it remains to be seen how LGBT parental rights will be recognized, particularly in an adoption and if marriage alone is enough for the recognition of those rights. This statement may come as a surprise. Even though adoption, ironically, was at the heart of the Obergefell marriage equality decision, marriage equality does not herald adoption equality.
Same-sex couples can now marry in any state in the United States, and their marriage will be recognized by all other states. That said, states might still deny same-sex parents the legal protections of parenthood despite their marital status. Even in a state where the marital presumption exists—the spouse of the person who delivers the baby is the presumed other legal parent, assuming the applicable state statute is read in a gender -neutral fashion—that is not sufficient to protect your parental rights. Some jurisdictions may refuse to recognize the co-parent as a legal parent unless he or she is recognized as such in a formal adoption or court decree.
Ensuring Legal Recognition of Both Parents
Because there are major legal risks inherent in raising children together when only one partner or spouse is legally recognized as the parent, all same-sex parents, whether married or not, should confirm and protect their rights. As before Obergefell, LGBT parents will do so by completing a second-parent (or step-parent) adoption or, in a gestational surrogacy case, usually by obtaining a parentage court order. Many states grant second-parent adoptions to same-sex couples; others grant step-parent adoptions. Such adoptions will benefit the parent who does not have a biological connection and will ensure that the child has two legal parents, which is particularly important if one parent dies or is incapacitated.
Any final adoption order is entitled to be recognized and honored in any other state under what is known as the full faith and credit clause. This clause ensures that once rendered, judgments are final nationwide. This was confirmed recently by the Supreme Court in a unanimous decision addressing Alabama’s attempt to deny recognition of a lesbian couple’s adoption order from the State of Georgia. In that case, the partner of the biological parent adopted the three children born during their relationship together (they were never married). The decision provides further safeguards for the rights of LGBT families and reinforces the need for such a final order.
Note that, with respect to adoption in general, many states only permit married couples to jointly adopt. In those states, any married couple will be permitted to adopt together. In the past, a state that did not recognize same-sex marriages would only legally recognize one of the parents as the parent. Now, both parents may be legally recognized, of course depending on the state. Unmarried couples, however, are in the same place they were before the Supreme Court’s ruling: State laws vary widely in how non-biological parents are treated. There are several states that do not allow any unmarried couples to adopt, and there are states where the law is not clear and the practice varies from judge to judge.
Yes, we now have marriage equality, but there are still additional steps necessary for all LGBT couples to protect your parental rights. Make sure you do not skip these steps, so that you and your children will be secure in knowing that both parents are legally recognized.
Meryl B. Rosenberg, Esq., is an attorney in private practice who specializes in second/step parent adoption and assisted reproductive law in Potomac, Maryland. She is also the director of a surrogacy program, ARTParenting (artparenting.com).