Your questions answered by Diana Adams, Esq, LGBT Lawyer and Family Mediator
My partner and I live in a state where same-sex marriage is unconstitutional, and same-sex second parent adoptions are not legal (Michigan). We want to give birth to our child in a state where we both can be listed on the original birth certificate. In what states can both of us be listed as parents on the birth certificate? Does our unmarried status affect being listed on the birth certificate in any state (as in, are only married same-sex partners allowed to be listed as co-parents on the birth certificate)?
I have looked high and low for an answer, and my research skills are exhausted!
By Diana Adams, Esq, LGBT Lawyer and Family Mediator
Unfortunately, no state routinely permits both members of an unmarried same-sex couple to be listed on a baby’s birth certificate. Being listed on a birth certificate often goes hand-in-hand with marriage as a same-sex couple. Married same-sex couples may benefit from the ‘presumption of paternity’ that has traditionally been accorded to the birth-mother’s male spouse, but unmarried couples are left with neither that presumption nor a physical or genetic link to justify immediate listing. Even if you were listed on one state’s birth certificate, states do not have an obligation to recognize another state’s birth certificates for the purpose of identifying the child’s legal parents, so the value of being on the birth certificate together may be entirely symbolic
Let’s dig deeper to get at the underlying goal you may wish to achieve with the birth certificate. Often, this goal is family stability: as the parent who did not give birth to the child, you need to ensure that your parenting rights and responsibilities are acknowledged and respected, and that your role in this child’s life is made clear from the outset.
The best way to protect your relationship with your child as a non-biological parent is through second-parent adoption, in which the non-biological parent adopts the child with consent of the birth mother (or original adoptive parent), without terminating the parental rights of the first parent. (If the genetic father is not an anonymous donor, his consent may be required as well). This process helps many lesbian parents in states that do not allow same-sex marriage. In fact, second-parent adoption is a more powerful protector of your parenting relationship than marriage, because same-sex marriage will not be accepted in all states but states must honor the second-parent adoptions of other states.
Some states permit second-parent adoptions for same-sex couples that have not yet legalized same-sex marriages. The closest state to you in this category is Indiana. However, state laws related to LGBT families are shifting rapidly. In some states, its still unclear whether a lesbian partner could adopt as a second parent- so if you feel brave, you could be a test case! (Get the latest update on your state and others nearby at www.lambdalegal.org/states-regions.) Residency requirements for second-parent adoptions vary, so check with an LGBT friendly adoption lawyer in the state in which you may want to adopt.
Status as a legal parent of your child will protect your rights to make medical and educational decisions for your child, which can be crucial particularly if the birth parent is not available. The greatest risk of not having status is a legal parent is that if you and your partner split up or if your partner dies, you may have absolutely no rights to custody or visitation of your child, even if you’ve been an involved parent and caretaker.
How should you protect your parenting rights if second-parent adoption is not an option?
None of these measures will offer the ironclad legal security of adoption, but they can assist in maintaining and proving a parental role in the child’s life as a non-birth mother. Speak to an LGBT-friendly family law and estate planning attorney in your state to explore the following options.
- Co-Parenting Agreement- A co-parenting agreement is a legal contract that allows a couple (or nonromantic co-parents, or a polyamorous triad or quad) to clearly delineate their intentions about the rights and responsibilities of each parent. A co-parenting agreement may include very general responsibilities, down to minutiae of weekly childcare. A strong agreement will include a custody/ visitation plan before any separation occurs, authorization for the non-biological parent to give consent for the child’s medical care access, and a clear intention for the non-birth mother to share the legal rights and responsibilities of a parent. Please visit my site for more information on co-parenting agreements.
- Pre-birth Order- Some jurisdictions may allow a court proceeding during the course of the pregnancy that declares the parental status of the future baby. This pre-birth order can then be presented to a hospital to have a non-biological parent listed on a birth certificate.
- Wills and Estate Planning- In order to ensure that a child of a same-sex couple stays with the non-birth parent in case of the birth parent’s death, it is crucial to execute a will that leaves the non-birth parent as guardian of the child. You may also wish to execute Power of Attorney documents with your partner to share finances even if you are unable to marry, a health care proxy for medical decisions between partners, and other estate planning documents.
- Guardianship- Petition your local family or probate court for voluntary guardianship of a minor. Some courts will allow a same-sex partner to become a guardian, but this may be difficult to predict. The non-biological mom should then be co-guardian with the legal mother so that she is not “instead of” but “in addition to.” You should get copies of the appointment document to provide to the child’s doctor or school. Even if you’re not allowed to do this by a court, execute a consent to emergency medical treatment for the non-biological parent.
Despite the extra effort involved in legal parenting as a same-sex female couple, keep in mind that you are protecting your relationship with your child and creating precedents that can help protect the rights of other lesbian parents in the future. Best wishes for a happy family!
Diana Adams is an LGBT lawyer mediator who assists in the creation of stable family agreements, including sperm donor agreements, second-parent adoptions, co-parenting agreements, intentional premarital agreements, co-habitation agreements, and respectful collaborative divorce and child custody. Her practice is based in New York City and Albany, NY.
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