In June 2015, the Supreme Court held that same-sex couples have the right to marry. That decision established that states could not define marriage in a way that excluded same-sex couples, but it did not clarify how to secure some of the rights of marriage that heterosexual couples take for granted. For instance, same-sex couples may have to take extra measures to establish that both partners have parental rights.
American law has traditionally presumed that when a man and woman marry, any child born within that marriage belongs to both partners. Unless steps are taken to rebut that presumption, both partners enjoy the legal rights associated with parenthood. However, same-sex spouses are not automatically treated as their children’s parents, with equivalent rights and responsibilities. The Supreme Court has held that a state must include both same-sex spouses on a child’s birth certificate if the state where they live already includes non-biological parents on birth certificates (e.g., the father of a child conceived via sperm donor). However, in some states, that measure does not ensure that both spouses will be recognized as parents under the law. Advocates urge same-sex couples to pursue adoption or some other type of formal judicial declaration to establish and protect their rights in case they move (or even travel) from a state that recognizes their parental status to one that does not.
Many same-sex couples have chosen to undergo second-parent adoption to secure their rights. Second-parent adoption generally refers to the situation when a parent living with, but not married to, the legal parent of a child, adopts that child. The legal parent does not relinquish any rights in this arrangement. The second-parent adoption process varies by state but may look very much like any other adoption process in its thoroughness and complexity. Some parents have had to undergo physicals, medical tests, fingerprinting, background checks and home visits by a social worker. Since adoption can be a time-consuming process, couples may have to wait months to have their adoption status resolved. Second-parent adoption also lays the foundation for custodial arrangements should the marriage fail; adoption ensures that nonbiological parents also have a right to custody.
Some form of second-parent adoption is available in more than twenty states and the District of Columbia, but some states expressly prohibit second-parent adoption. Where second-parent adoption is not allowed, same-sex couples may enter into other types of arrangements, like co-parenting agreements or custody agreements. While these forms of agreements require couples to contemplate the end of their relationship, they can provide some equity and stability in families whose status is otherwise unprotected by law. Further, although the law offers increasing protections for same-sex couples and their families, many laws addressing those protections are still relatively new, and the shelter they provide is only partial. Adoptions or other types of long-recognized contractual arrangements can offer an additional measure of security.
Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.