When same-sex couples share children together and only one party is documented as the legal parent, problems can arise. For example, in the event that the legal parent to the child dies, a relative of that legal parent, rather than the child’s co-parent, could be appointed as guardian of the child. Or, in the scenario that the couple separates, the legally-recognized parent could attempt to sever all contact that the co-parent has with the child.
Since shortly after same-sex marriage became legal in the Supreme Court’s 2015 Obergefell v. Hodges decision, divorce and child custody battles have highlighted how things can get complicated when new and old laws collide. Traditional laws used in determining parentage are narrowly worded to protect birth mothers and male fathers. However, in a post-Obergefell world, those laws must be interpreted in a gender-neutral way. As sweeping as the changes following the Obergefell decision have been, legal parental rights are still one aspect of marriage that may not come guaranteed for same-sex couples.
Married couples who reside in states where the law is clear that children born into a marriage have legal recognition for both parents might be on solid ground without adopting. Yet, family law varies state by state, which is why advice to same-sex couples may remain the same as before the Obergefell decision came down: that non-biological parents wishing to fully ensure legal relationships with their children may consider taking the extra step of adopting or securing a court-ordered judgment to guarantee their legal recognition as parents. This is especially true if the same-sex couple is not married or if the child became part of the couple’s world before the couple subsequently wed.
Please contact the Domestic Team at Feldmann Nagel Margulis for all of your Family Law needs.