LGBTQ parental rights in a post Obergefell world

Legal Eagles: Child’s welfare in custody cases challenging, but workable

If the charming children’s book “Are you my mother?” were remade as a modern  Grimm’s fairytale for LGBTQ parents, it might be named “Are you a mother?” to acknowledge the prolonged struggle of non-genetic, LGBTQ parents to be recognized and to exercise rights to parent their children.

While North Carolina has not been a forerunner nationally in the protection or advancement of LGBTQ parents’ rights, we have slowly and steadily been moving toward recognizing non-genetic parent rights. In October the North Carolina Court of Appeals added another case to its repertoire of cases in support of non-genetic, LGBTQ parents. In Moriggia v. Castelo, the court reaffirmed a non-genetic parent’s standing to maintain a custody lawsuit against a genetic parent. The legal decision in this case is a cause for celebration because it indicates a move toward honoring the intentions of people who seek to become parents.

In this case, the court reiterated its earlier position that an individual who is not genetically related to a child nonetheless has the right to sue a genetic parent for custody under certain circumstances when the genetic parent acts “inconsistently with their constitutionally protected rights.”

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Through a series of cases culminating in Moriggia, the court describes behaviors exhibited by genetic parents which evidence an intent to create a cohesive family unit wherein the non-genetic party was intended to act as a parent and did act as a parent.

Additionally, the court has made clear that all behaviors before and after the birth of a child are pertinent to the assessment of whether or not a parent has acted in a matter inconsistent with her exclusive right to parent. The court also made clear that the genetic parent’s intention to create a family unit with a non-genetic parent has significant weight even if the genetic parent later changes her mind about her desire to co-parent. Finally, the court stated that a party seeking custody does not need to marry a genetic parent or adopt a child to whom they are not genetically related in order to maintain a custody claim.

Moriggia is a solid decision and favorable toward non-genetic parents with regards to custody claims.However, it falls short of providing the non-genetic party or the child the protection of legal parentage. Even though the non-genetic mother in this case will now get to show that she has some custodial rights to the child she has been raising, these are only custodial rights and she will still not be a legal parent to this child.  Even the most favorable custody decision cannot confer the protections of legal parenthood on a child. Rights such as the right to inherit if a parent dies intestate, the right to claim a social security survivor’s benefit and the right to have the financial support of a parent cannot be ordered by a court in a custody hearing involving a non-legal parent.

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Although the court did not require the parties to have taken actions such as getting married, adopting or being on the birth certificate, this may certainly change in the future now that same-sex couples have the right to marry in North Carolina. We are already seeing cases in other states where failure to take these actions has been considered . If you want to protect your relationship with your non-genetic child and become their legal parent, these are some steps you can now take in North Carolina:

  • Get married before the birth of any children.
  • Be clear with any fertility clinic or other medical provider that you are a couple choosing to have a child together. Sign all forms as a couple and never sign as a donor/surrogate for your partner/spouse.
  • List both of you on a birth certificate. As long as you are married, North Carolina will list both of you on any birth certificate, and if you encounter any problems, seek legal advice before completing any forms.
  • Complete a stepparent adoption. Yes, it may seem unfair, but current parentage law in our state is primarily based on biology and without a biological/genetic connection to a child, you will have a tougher time establishing your parental rights.
  • Talk with a lawyer about other documents such as donor/parenting agreements, powers of attorney and wills.

Unfortunately, Moriggia evidences, yet again, that despite our best intentions as a community, people in difficult moments will advance individual arguments that are potentially detrimental to the LGBTQ community at large. While adoption is not necessary to maintain a custody case, it remains the gold standard when it comes to securing the legal rights of parents and children. Adoptive parents have constitutionally-protected rights to parent their children. Any attempts to terminate those rights are subject to the highest legal standard, and the adoptive parent has a right to counsel provided by the state to defend their right to parent.  Adoption is portable and an adoption granted by North Carolina is valid in every state and must be recognized pursuant to the United States Constitution. Fortunately, thanks to marriage equality, adoption is available for married, same-sex couples.

For your children’s well-being and emotional development, honor the commitments you have made in creating a family if you separate. It may be appropriate to ask for more custody for various reasons, but respect the decisions you made in creating a family. Despite how difficult it might be as you go through a separation, don’t deny the bond your child has with his or her other parent and how children can benefit and thrive with love from both of you.

info: Milan Pham and Sharon Thompson are attorneys with NicholsonPham PLLC in Durham, N.C. Visit nicholsonpham.com to learn more.

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