Analysis: Adoptions necessary for same-gender married parents

Legal marriage equality doesn’t quite yet solve all families’ legal relationship needs

Now that same gender-couples can get married, they need to learn what marriage means — and what it doesn’t mean.

One thing it doesn’t mean is that both moms or both dads are automatically recognized as legal parents of their child, even if they are both named on the birth certificate. In North Carolina and virtually all other states, being named on the birth certificate is only a presumption that the parent is a legal parent. If the person is not biologically related to the child or did not adopt the child then he or she is not a legal parent, except under specific surrogacy situations where a court has signed a parentage judgment.

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A legal parent has a right to custody of the child and the right to make all decisions about the child, including about the child’s health and medical care, education and well-being. A legal parent is financially responsible for the child. A non-legal parent does not have any of these rights.

Married same-gender parents are being advised to protect their families by having the non-biological parent do an adoption or get a parentage judgment (if available). According to the National Center for Lesbian Rights: “Regardless of whether you are married or in a civil union or a comprehensive domestic partnership, NCLR always encourages non-biological and non-adoptive parents to get an adoption or parentage judgment, even if you are named on your child’s birth certificate.” NCLR also recommends parents have family protection documents such as medical authorization, guardianship agreements, wills, and advance directives.

It isn’t just same-gender married couples who face this unfair situation. If a DNA test shows the husband in a different-sex married couple is not the biological father, then he has to adopt the child to become a legal parent, even if his name was already on the birth certificate.

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While parents should not have to adopt a child they planned for and had with their same-gender spouse, “it is legally advisable for LGBT parents to get an adoption or parentage judgment to ensure that their parental rights are protected,” according to NCLR.

The law simply has not caught up with building families by intention rather than biology. Until it does, an adoption or a parentage judgment (if available) is the only way for a non-biological parent to become a legal parent. : :

— Connie J. Vetter, Attorney at Law, has practiced LGBT Law for over 20 years and is a member of the Mecklenburg County Bar Association, the North Carolina State Bar, the LGBT Bar Association and the Family Law Institute, an invitation-only organization for experienced LGBT Law attorneys. Connie practices law throughout North Carolina and can be contacted at 704-333-4000 or at CJVLaw.com.

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