Recently my partner and I found out that we are expecting our first child. Since we are married, do we still need to do a second-parent adoption after our child is born?
Congratulations! That’s a great question. Although the landmark decision in Obergefell was a huge win for same-sex couples, questions still remain as to the full implementation and impact of the decision in the area of family law. One such question is whether marital presumption, which allows you parental recognition, should be applied to same-sex married couples as it is to heterosexual married couples. Traditionally, a husband is legally presumed to be the father of a child born to his wife. In most states, this law affords legally enforceable rights to both the father and the mother.
The application of marital presumption is not as simple, however, when applied to same-sex couples, as demonstrated by recent court decisions. Some courts have held that the marital presumption is not based on the marriage itself but the biological reality that the husband and wife conceived the child together. As such, these courts denied same-sex couples this right. Other courts have held that the marital presumption is not genetically based, but provides legitimacy to the children. Thus, these courts applied marital presumption for same-sex married couples and granted them equal protection.
Because this is an emerging area of law and because discrimination unfortunately still exists, LGBTQ families must continue to access the legal safeguards available to ensure they are protected. One such avenue is second-parent adoption. Second-parent adoption ensures that the non-biologically related parent has a legal relationship to the child.
Due to the complexity of case law in this context of family law, it’s best to consult with an attorney with family law experience to discuss not only the law of marital presumption but all the avenues you may have in regards to safeguarding your family and their legal rights. Good luck and I hope this was helpful.
— Yetta Kurland
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This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of their own attorney.