By Susannah Furnish, Esq.
One of the questions that is frequently asked by same-sex couples with children is what parental rights they have,
and how they can protect or expand those rights. Both married and unmarried same-sex couples face this question, and it is
further complicated by the fact that laws intended to protect the rights of different sex parents are often applied to same-sex
couples but aren't necessarily a good fit. The following is a brief overview of useful methods for protecting parental rights
in same-sex relationships.
Presumption of Paternity:
In Massachusetts, the courts rely on the concept that a child born to a married couple is legally the child of both parents.
The idea is an old one, and basically means that if a woman gives birth while married, her husband is considered the father
of the child based solely on the fact that they were married at the time of the child's birth. This "presumption"
that the husband was in fact the parent of the child can be disproved if, for example, there is proof that the child is not
the biological child of the husband.
This "presumption of paternity"
can arguably be applied to children born to married same-sex couples. The concept that the spouse of a biological parent has
parental rights based solely on the fact that they are married sounds like it should simplify the question of parental rights
for same-sex married couples. However, it is not necessarily that simple. In fact, this presumption of paternity is based
heavily on the fact that a married opposite-sex couple can reproduce children that are biologically the children of both parents.
Same-Sex couples cannot currently have children that are biologically the children of both parents. Unfortunately, this means
that the presumption of paternity is fairly weak when applied to the children of same-sex married couples.
Birth Certificates: Children born in Massachusetts can have a birth
certificate that names two parents of the same gender. Like the presumption of paternity, this initially seems to protect
the parental rights of same-sex couples. However, because a birth certificate is not considered a judgement by a court of
law, it is not entitled to protection under the concept of Full Faith and Credit. In basic terms, because it was not issued
by a judge it does not have to be respected or acknowledged in a court of law.
Co-Parent Adoption: Unlike relying on a birth certificate or a presumption of paternity, filing
for a co-parent adoption does confer legal parental rights to both parents in a same-sex relationship. Both parents are considered
legal parents to the child by the Commonwealth of Massachusetts, and, while in Massachusetts, both parents in a same-sex relationship
have parental rights. Even in the event that the relationship between the parents breaks down, the relationship of each parent
with respect to the child or children legally adopted by both parents is still protected.
Documents When You Travel: Massachusetts allows co-parent adoption by two parents of the same
gender, and this is currently the best way to ensure that the parental rights of both parents in a same-sex relationship are
protected. However, only about 1/3rd of the states in the U.S. give legal recognition to non-biological second parents. Because
of this, it is important to carry a copy of all important documents with you when you travel with your family. Same-sex couples
should carry a copies of Marriage Certificates, Birth Certificates, Adoption Decrees, and Durable Power of Attorney and Health Care Proxy documents with them when outside of Massachusetts. Although the laws are changing, there is no guarantee that other
states will recognize the rights of both parents in a same-sex relationship. Having a wide array of legal documents that protect
those relationships increases the likelihood that your parental rights will be acknowledged.
Please contact us for a consultation about Adoption or your parental rights.