The legal challenges of parenting as a same-sex couple

Like any couple here in New York, sharing your lives with a child offers rewards and challenges that those without children struggle to understand. Unlike opposite-sex couples, however, same-sex couples also encounter legal challenges when it comes to parenting.

Assuming that because the state recognizes your marriage, it also recognizes your legal rights as a parent leads to problems down the road. The assumption of parentage in an opposite-sex marriage does not extend to same-sex marriages. The only parent in a same-sex marriage not required to prove parentage of a child added to the family after marriage is the biological mother in a lesbian relationship. Gay men and the other lesbian spouse need to establish parentage through the courts.

How do same-sex couples become legal parents?

Depending on the circumstances, many same-sex couples adopt:

  1. One biological parent: The other spouse could obtain legal parenting rights through either a second parent or stepparent adoption that includes the termination of the other parent's rights.
  2. No biological parent: An adoption through an agency, attorney or some other intermediary allows same-sex couples without any biological connection to the child to become parents.

Draft a parenting agreement

Regardless of whether an adoption occurred, if you plan to parent a child together, you should execute a parenting agreement. In it, you and your spouse outline your intention to parent together (even in the event of a divorce), who handles what responsibilities and what happens if the marriage ends. You should be sure to address financial issues in the agreement as well. This agreement establishes the relationship between you and the child, regardless of biology.

I helped raise my spouse's child without legally adopting the child. What happens if we divorce?

Without an adoption, the non-biological parent's legal rights remain uncertain. However, a case for the non-biological parent obtaining custody and visitation rights based on "de facto parenting" could happen. In order for a court to declare you a de facto parent, it looks for the following factors:

  1. Did you come to an agreement together regarding your intentions to co-parent during and after the marriage?
  2. Did you execute a parenting agreement that includes your intention to parent the child jointly?
  3. How much of the marriage did the child reside with you and your spouse?

Presenting other documentation and evidence relating to your relationship with the child works to strengthen your case and establish these factors.

All of these legal issues require the assistance of an attorney to help ensure the defeat of any legal challenges to your status as a parent. The adoption process alone requires numerous steps, a significant amount of paperwork and time in court. Ordinarily, an adoption will eliminate most, if not all, challenges to your parental rights. However, if problems arise, an attorney can advise you regarding the best way to protect your right to visitation with the child you consider your own.

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Keith B. Schulefand, Esq.
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