Statistics show that approximately 250,000 children in the United States are being raised by lesbian or gay parents. Yet many states do not legally recognize the relationship between children and the gay or lesbian partner of their legal parents. Gay and lesbian couples face many unique challenges in parenting, and their options depend on the state in which they live. Provided here is a brief overview of the issues that are involved in lesbian and gay parenting.
Same-sex marriage is currently legal in Massachusetts. Children who are born or adopted during a same-sex marriage in that state are automatically considered to be the children of both partners. California and Vermont legally recognize same-sex domestic partnerships, and grant parental status to both partners of any children that are born or are adopted by the partnership. However, attorneys in all three states recommend that the second parent go through a formal adoption process, as the second parent’s status will not be recognized in other states.
Second Parent Adoption
Many states that do not automatically grant parental status to same-sex partners do allow the second parent to legally adopt the child. These states may also allow both partners to adopt a child together, granting them equal parent status from the beginning.
A few states do not allow same-sex partners to adopt children. In these states, one parent is the sole legal parent, and the other has no legal status in regards to the child.
Particularly in states that do not permit same-sex partner adoption, experts recommend that the parents draft a parenting agreement. This agreement should spell out the couple’s intent to raise the child together, to share parenting rights and responsibilities and to be jointly responsible for the child’s financial needs. Although no one wants to consider that their relationship will not last, most experts stress that parenting agreement should specify what will happen in the event of a breakup.
After a Breakup
In the event that the relationship does not last, it is best for the partners to work out their own agreements regarding visitation, financial support and other matters. In many states, the second parent’s relationship with the child is not given any legal consideration, so the court system may not be helpful in assisting the parents with negotiating an equitable agreement.
Some courts do consider the role of the second parent’s relationship with the child. A psychological parent is someone who has taken on the role of parent, including living with the child, providing for his or her daily care and nurturing, and contributed to his or her financial needs. Some courts have found that the second parent is a psychological parent and is entitled to the rights and responsibilities of a legal parent. However, this is never guaranteed.
The Bottom Line
Many same-sex couples are on their own in navigating parental relationships. As state law varies widely on the matter, it is extremely important that same-sex couples who are considering children seek the advice of an attorney in their location. An attorney who is experienced in the unique challenges of same-sex parenting can help the couple to negotiate the laws, draft a parenting agreement and provide the best possible situation for their children.