Civil Rights

Same Sex Parenting

Are you and your partner raising a child together? If so you'll want to do everything you can to protect your relationship with the child in the event the partnership ends. There's no magic legal formula for this. Being prepared depends on your relationships with your partner and child, and local laws and customs.

Adoption Creates a Formal Legal Relationship

In some states, same sex partners can jointly adopt a child. If this alternative is available to you, it gives you the same legal status as biological parents have.

If your partner is the biological parent of the child, you might still be able to adopt the child. This is called a "second parent" adoption. Your ability to do this depends on two factors. It must be permitted by state law and the child's other biological parent must relinquish his or her parental rights to the child.

Parenting Agreements

Adoption isn't always possible. If not, one option to consider is entering into a written "parenting agreement" with your partner. A parenting agreement should address such details as:

  • That both of you consider yourselves the parents of the child, with all the rights and duties that come with parenthood
  • That should your relationship not last, both of you intend that the parenting relationship with the child would continue, with regular visitation time with the child and joint parenting responsibilities

If You Break Up: Taking the Dispute to Court

Not all courts agree that a non-biological parent can continue parenting a child once a same-sex partnership ends. Some courts flatly refuse to even consider legally formalizing such a relationship. 

Because of these uncertainties and the tremendous stress any lawsuit brings, it's best to avoid a court fight. Try working out an agreement with your ex-partner. Hiring a mediator to work out a settlement is often a good idea. You can also resolve any property issues at the same time.

Courts that have given visitation and parenting rights to non-biological same-sex partners have tended to place emphasis on:

  • Any written parenting agreements between partners
  • Birth announcements or other documents listing both partners as parents of the child
  • How long the partner has lived with and parented the child
  • The partner's involvement in the child's daily routine, such as schooling, feeding, bathing and so forth
  • The strength of the relationships between the child and the partner's extended family
  • The intentions of the biological parent to allow the former partner to parent the child while the partners were together
  • If the child is old enough, the child's wishes

As with many legal issues, a little planning can go a long way. When you consider the welfare of the child, and the desires of the parents, it's a must.

Questions for Your Attorney

  • Will both partners necessarily have the same adoption rights, or can this be changed by agreement?
  • If our state enacts a same-sex marriage law, will marrying give us stronger adoption rights?
  • If I have a natural child, what are my partner's rights respecting the child?
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