Formalizing Parenting Relationships in LGBTQ+ Families
In the past few years, the LGBTQ+ community has had a great deal of success in obtaining legal recognition of their families. However, changes in the political environment can threaten those hard won successes. In particular, LGBTQ+ and non-traditional families are vulnerable if they are not legally tied to their children or their partners. Take a few moments to talk with your partner(s) about what you can do to formalize parent-child and parent-parent relationships.
Why do it? Co-parent adoptions are a valuable means to provide your children with the protection of two legally acknowledged sources of care and support. If your child is only biologically related to one parent, then a marriage certificate or birth certificate with both parents’ names does not ensure full protection for the child. Co-parent adoption is a tool that grants both parents the right to custody of their children, including the authority to make decisions for their children at the doctor’s office, at school, or if the other parent passes. It also can provide access to health insurance and Social Security disability or survivor benefits. Additionally, LGBTQ+ partnerships can end in separation and divorce, and co-parent adoption can protect the non-biological parent’s relationship with the children.
How it works. Co-parent adoptions consist of a legal process that allows a child with one legal parent to be adopted by a second legal parent without terminating the first parent-child legal relationship. Depending on the state, a second-parent adoption or step-parent adoption (if the person seeking to adopt is married to the child’s legal parent) may be appropriate. Some states also recognize parentage judgments. (In some states and the District of Columbia, a person who meets the definition of parent or de facto parent can petition the court for a declaration of parentage, over the opposition of the legal parent.) Once the adoption is complete, both parents stand on equal legal footing and other states and the federal government must respect the judgement of a court confirming joint legal parentage. Consult an attorney in your state to learn more about what type of adoption may be appropriate for you. Some jurisdictions, including the District of Columbia, permit second-parent adoptions if the child was born here, regardless of where the parents reside.
If your state does not allow you to adopt your partner’s child, or you would be unable to get a parentage judgment, there are other options. You should make sure that the biological or adoptive parent writes a will naming the non-legally recognized parent as the children’s guardian in the event of a parent’s passing. (However, you should know that, if you are not a legal parent, another interested person, such as the deceased parent’s sibling or parent, might challenge your petition to be the children’s guardian.) The legally recognized parent should sign a medical authorization allowing you to consent to medical care for the child. Finally, you should consider entering into a co-parenting agreement stating your intention to jointly parent your children, although, again, you should pursue a legal declaration of parentage through second-parent adoption or by filing a petition with the court if at all possible.
Prepare the “Proof.”
Your legal authority to make decisions for your children could be questioned by schools, doctors, and law enforcement, as well as airline or customs personnel when you travel. It is important to have documented “proof” of your status as a legal parent readily accessible at all times, and copies of that proof can be left at your children’s schools and doctor’s offices. Such documents can include your court order of adoption or parentage judgment, your child’s social security card and passport—with both parents’ names on it—as well as medical consent forms, and co-parenting agreements.
Regardless of the structure your family takes, it is important to think carefully about legally formalizing parent-child and parent-parent relationships.