I listened to a teleconference tonight presented by the National LGBT Bar Association titled, “Cutting Edge Issues in Adoption and Parentage.” The presenters were attorneys experienced in LGBT family law matters. Although it was a brief program, it was most insightful.
The one point that was underscored by literally every panelist was the fact that same-sex marriages/civil unions are not recognized by all 50 states or the federal government. Thus, if a lesbian or gay couple wishes to parent a child together and wants the child to have two legal parents, the non-biological parent should adopt the child.
The issue of Full Faith and Credit among the states was raised with respect to parentage and it was pointed out that unless there is a court judgment of some sort declaring the non-biological parent to be the second parent of the couple’s child, a state that does not recognize same-sex marriages/civil unions does not have to give full faith and credit to the couple’s marital/civil union status — and thus will not recognize the non-biological parent as the child’s second parent.
I practice law in the State of Connecticut where same-sex marriage is available. Connecticut also allowed second parent adoptions by lesbian and gay couples prior to allowing civil unions and marriages. Many same-sex couples ask me why they have to bother with the adoption process if they were married in Connecticut prior to their child being born. The answer is the same one that the panelists gave tonight: not all states recognize same-sex marriage and therefor are not required to view the non-biological parent as the child’s legal second parent.
Clients have told me that upon calling a Probate Court to ask if they are required to petition for their same-sex partner to adopt their child if they are legally married in Connecticut, they have been told that adoption is not required by virtue of their marriage. While that is true in Connecticut, it is only a partial answer — and I find it disconcerting that so many same-sex couples are not given the full answer because they are unwittingly exposing their child (and second parent) to potential disastrous consequences.
That sounds ominous, I know. It’s meant to be. In all seriousness, if you are the biological parent of a child and your intent as a couple has always been to parent the child together, you can’t afford to leave loose ends. If you are traveling in a state that does not recognize your Connecticut marriage and something happens (such as a car accident), your child may be left unprotected if you are seriously injured or killed. Your legal spouse will have no legal rights to the child in that state and will be unable to consent to medical treatment or related issues for your child (or for you).
Horror stories abound in which same-sex couples believed their marriage protected them in all states. It does not. Please hear me.
If you and your partner plan to start a family, consult with a licensed attorney who is experienced in lesbian and gay law first. You’ll be glad you did.
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Co-Parent and Step-Parent Adoption for Lesbian & Gay Couples .pdf (2010)
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copyright 2010 Irene C. Olszewski