Many same-sex couples choose to start families by having or adopting children. In the event the relationship between partners ends, child custody must be determined as with heterosexual relationships. These situations can be complex especially when one parent is the child’s biological parent and the other is not. Each state has individual laws regarding same-sex adoption so it is important to know your state’s laws and the best way to protect your parental status in your same-sex relationship.
In order to protect your parental rights to a child, in a same-sex relationship, you should make sure you are a “legal parent.” A legal parent has a duty to provide for a child, the right to live with the child (full or part-time) and the right to make decisions on his/her behalf. In some states, same-sex couples are permitted to jointly adopt a child therefore they both become legal parents. In cases where one partner is the biological parent, the biological parent automatically becomes the parent. In lesbian partnerships, often one partner is the biological mother and carries the child, making her the legal parent. In gay men partnerships, one partner may be the sperm donor (the child carried by a surrogate) making him the biological or parent. Many states allow the non-biological same-sex partner to adopt the child through the second-parent or step-parent adoption process. The second-parent adoption process allows the same-sex partner to also claim the parent role.
When same-sex relationships end and children are involved, often the courts get involved to determine custody arrangements. If both parents are legally the parents, most courts will handle child custody in the same way they would with a heterosexual relationship. The non-biological parent, who has a legal relationship with the child, will have rights similar to those of a father in a heterosexual relationship. In some cases, the non-biological parent is awarded custody because it is in the best interest of the child. Problems with custody can arise if only one partner is a legal parent. Many courts will say that the non-legal parent has few if any rights to the child in the case of separation. In some cases, the courts have allowed the legal or biological parent to deny the non-legal parent contact with the child. Some more progressive courts will look beyond the legal parental status to examine the history and relationship formed between the child and partner, when determining child custody.
In a few states, same-sex partner adoption is prohibited. It may not be possible for a non-biological parent to gain full parental status. If you live in a state where you are not permitted to adopt your partner’s biological child, you should attempt to protect yourself and your parental role in the event of separation down the road. One way to do this is by establishing a parenting agreement. This agreement will not necessarily stand up in court, but may help you work with your partner in the case of separation. A parenting agreement usually establishes that although only one partner is the legal parent, you both consider yourself equal parents and assume the responsibilities associated with your parental roles. It should include that you intend to co-parent even if the relationship comes to an end. It would be advantageous to also include information about financial responsibility and visitation/custody agreements in case of separation. This parenting agreement can be used in court as ammunition to support a non-legal parent’s quest for child custody/visitation.
If you would like more information about your state’s laws and same-sex couple adoption, you should contact a family law attorney. An experienced family law attorney can inform you of your state’s laws on same-sex adoption and the best way to protect yourself in your same-sex parenting relationship.