Securing
Equal Parental Rights Together
"Psychological
Parenthood"
Parenting
Agreements
Same-sex
couples who are raising children together, or plan to do
so, should take advantage of any opportunity available to
secure the parental rights of both parents. Many lesbian
and gay parents who have not done so find themselves locked
out of their children’s lives after the couple’s
relationship ends or their partner dies. This is obviously
devastating for both parent and child.
Up until
relatively recently, same-sex couples who were raising children
together could not both be legally recognized as their children’s
parents. Now, courts in a number of states have recognized
and protected these parent-child relationships through adoption
and other means. The options available for establishing
parental rights vary greatly from state to state, and even
within states.
Securing
Equal Parental Rights Together—Second-Parent Adoption
and Other Options
In a
number of jurisdictions, lesbians and gay men (as well as
unmarried heterosexuals) can petition a court to adopt their
partner’s biological or previously adopted child.
In these jurisdictions, courts will grant such adoptions—often
referred to as “second parent adoptions”—if
the legally recognized parent consents, and the adoption
is deemed to be in the child’s best interest. When
a second-parent adoption is complete, the adoptive parent
has full and equal parental rights and responsibilities.
This option, if available, is the safest course to secure
both parents’ parental rights. In order to obtain
an adoption, you will need to get a lawyer.
Second-parent
adoptions vary from state to state, depending on the local
courts’ interpretation of the state’s adoption
statutes. In some states, appellate court rulings have established
that second-parent adoptions are available statewide. In
others, appellate rulings bar judges from granting second-parent
adoptions anywhere in the state. And in still others, the
availability of second parent adoptions varies from county
to county or even from judge to judge.
In some
states, alternatives to adoptions exist, such as court declarations
of parentage or guardianships. And in some states where
gay couples can marry or enter into civil unions or domestic
partnerships, children born into the family will be automatically
considered the child of both spouses/partners.
Click
for a state-by-state guide to laws.
“Psychological
Parenthood”
Establishing
both parents’ parental rights through adoption or
other means while they are living together as a family is
ideal. However, for couples who live in areas where that
is not possible, or who never went through the applicable
legal processes, there are ways to protect the non-legally
recognized parent’s relationship with his or her children
in the event the couple separates or the biological/adoptive
parent dies or becomes incapacitated.
Ordinarily,
individuals who are not biological or adoptive parents are
not entitled to petition for child custody or visitation.
However, in an increasing number of states, adults who function
as parents to children despite the lack of a legal relationship
with the child—often referred to as “psychological
parents” —may petition for visitation, and in
some cases, custody. To establish “psychological parenthood”
in these jurisdictions, the courts have typically held that
the individual must show that:
-
she or he lived together with the child in the same household;
-
she assumed the obligations of parenthood without expectation
of financial compensation;
-
the legally recognized parent consented to and fostered
the parent-child relationship; and
- a
bonded, parent-child relationship has developed.
While
the trend in the courts has been toward recognition of “psychological
parenthood” and the protection of children’s
relationships with their psychological parents, the courts
in some states have rejected this doctrine. In those states,
if you are not a biological or adoptive parent, you generally
cannot seek child custody or visitation. In many states,
this is still an open question that has not been addressed
by the courts.
Click
for a state-by-state guide to laws.
Parenting
Agreements
While
courts generally do not enforce contracts concerning the
care of children, co-parenting agreements can still be valuable,
particularly in jurisdictions where there is no way to gain
formal recognition of both parents’ parental relationships.
Co-parenting agreements typically spell out both partners’
understanding and expectations regarding their parental
roles and their intentions regarding custody, visitation
and support in the event the couple breaks up. Having these
intentions set out in writing can be helpful when the flaring
emotions and antagonism that often accompany separation
impair memory and cloud judgment. Moreover, in jurisdictions
that recognize “psychological parenthood,” a
co-parenting agreement can be strong evidence of some of
the elements necessary to establish that someone is a psychological
parent.
|
