Historically, same-sex couples faced multiple obstacles to parenting. In some states, same-sex adoption wasn’t allowed, which resulted in many same-sex couples being unable to parent, or non-biological parents being deprived of their rights at critical moments. On a more routine or daily basis, a same-sex parent could find himself or herself unable to sign field trip permission slips or give medical consent for a child.
After the legalization of same-sex marriage in Obergefell v. Hodges, married same-sex parents around the country are supposed to be able to enjoy the same rights as opposite-sex parents. The majority opinion even noted that a basis for marriage equality is safeguarding families and children. However, some obstacles remain, partly due to social biases towards dual-gender parenting and partly due to the gendered way laws are phrased in some states. For example, states such as Arkansas and Oklahoma have placed obstacles in the path of married same-sex couples who are seeking to put their names on a child’s birth certificate. Unmarried same-sex couples were unaffected by Obergefell v. Hodges with regard to their parenting rights.
Presumption of Parentage
At this point, if a legally married couple has a child during their marriage, they are both presumed to be legal parents of the child, regardless of the state’s laws prior to Obergefell. However, some states continue to resist the application of this presumption to same-sex couples. For example, they may refuse to list a biological mother’s wife on the birth certificate of a child conceived via donor insemination.
In cases of surrogacy, often used by gay men to conceive, some states continue to pass gendered laws that present obstacles for same-sex couples. For example, after the marriage equality ruling, Louisiana passed a law designed to permit gestational surrogacy only for couples that don’t need a donor egg or sperm.
In every state but California, a child is only recognized as having two parents. This means that there may be situations in many states where, for example, it will be necessary for same-sex spouses using reproductive assistance to litigate against a donor who has never been an intended parent in order to ensure that they have full legal custody rights over a child conceived during their marriage.
What is supposed to be a legal presumption may still need to be fought for through litigation in certain parts of the country. It is not entirely clear how much same-sex parents will be protected against challenges to their rights and duties. Depending on where they live, same-sex couples having children after Obergefell may still need to protect themselves by using second parent adoption or obtaining a parentage judgment from the courts.
Second-Parent and Stepparent Adoption
With the legalization of same-sex marriage, married LGBTQ couples in most states have the right to adopt. Adoption gives both parents, regardless of their biological relationship to a child, legal custody rights over a child. If you and your spouse divorce, a non-biological adoptive parent will have equal rights to seek custody and visitation. In many states, child custody is determined based on the best interests of a child, and courts assume that it is in the best interests of a child to be parented by both legal parents.
With second-parent adoption, someone can adopt his or her partner’s biological child. In stepparent adoption, the non-biological spouse can adopt a child that was already born to his or her spouse. However, the child’s other legal or biological parent must not be in the picture; the other legal parent’s rights must never have been recognized or they must have been terminated or the other legal parent must be deceased. Where neither spouse is the biological parent of a child, both may need to adopt a child to ensure their equal legal rights and duties with regard to the child.
It is possible for same-sex spouses to have a non-biological parent function as a parent without ever adopting a child or obtaining a parentage judgment from a court. This may be a safe option in certain states where the parents were legally married when they conceived the child and there are no threats to custody posed by an individual outside the marriage. However, this may be a very risky choice in certain states that did not recognize marriage equality before Obergefell, especially if a child was conceived or born prior to the marriage. If the couple divorces in certain states, the non-biological parent still risks not having custody or not getting any visitation.