Even though gay marriage has been nationally recognized since 2015, there are still many antiquated laws governing marriage. These laws were invented when opposite-sex marriage was the only option, and many of them have not been updated. Across the country, there can still be uncertainty about certain rights and freedoms of a same-sex union.
This is particularly true when it comes to parenting. Like any couple with one or two non-biological parents, there can be confusion and anxiety surrounding the rights of parents. In this article, we will look at many potential scenarios and attempt to clarify the parental rights of same-sex couples.
The Child Has No Legal Parents
In this scenario, parental rights are fairly obvious. If you are fostering or taking guardianship of a child with no legal parents, you have only the rights outlined in your custody agreement. When you want parental rights, you must adopt. Either one or both members of the couple can legally adopt the child. The process is lengthy and complicated, so you may wish to consult legal help as you navigate the red tape.
There Is a Parent Outside of the Relationship
Genders are irrelevant in this scenario. If you are married to one of the child’s parents, and there is another legal parent outside of the marriage, you are a stepparent. You have all the rights and privileges of a stepparent, and there will be limits on your decision-making power.
If the outside parent is unfit to raise a child, you can take steps to have their parental rights revoked. By doing this, you are acknowledging your intention to adopt the child.
A Child Is Born During a Same-Sex Marriage
In legal terms, “paternity” is the word for a man’s full, legal rights as a father. “Maternity” is also a legal concept, but it is much easier to deduce. Unless the woman is a surrogate, there is no confusion that she is the mother. Fatherhood can be less certain.
When a woman has a child while married to a man, that man becomes the full, legal father. Even if he is not the biological dad, he can sign the paperwork at the hospital. In the eyes of the law, genetics don’t matter. He is the father, without question.
If the biological father is outside of the marriage, he must take steps to establish his paternity. He can do so by signing the birth certificate at the hospital or filing paperwork later. Later in a child’s life, a man may discover that he is the father, and another man had been erroneously granted paternity. The biological father can petition for paternity. However, courts always operate in what they deem the “best interest of the child.” If they believe that transferring paternity will be too disruptive for the child, they can deny the petition.
As stated above, when a woman has a child, the law recognizes her as the mother. Her wife will probably be unable to sign the birth certificate at the hospital. Typically, the mother’s wife must go through the adoption process to be recognized as the other parent. If the biological father establishes paternity, then the mother’s wife can be a stepparent to the child.
In a male/male marriage, an outside mother could bear one of the men’s children. In that case, the biological father must establish paternity to have legal rights, and his husband could be the child’s stepfather. The mother could revoke her parental rights. In this case, the father’s husband could adopt, becoming the child’s other father.
Speaking With an Attorney
In any of the above scenarios, the smallest of errors could derail your plans. When you need to adopt, establish paternity, revoke the rights of an unfit parent, release yourself from parental rights, etc., you should always consult a legal professional. They can help guide you through the minutia of paperwork and help prepare you for matters that require a courtroom. Do not attempt to take these steps alone. Allow someone with experience to oversee your progress and help you along the way.
If you need help with parental rights in a same-sex marriage, reach out to our firm today. Our number is (407) 315-2006, and you can reach us online.