Legal Recognition of Parents
Marriage equality does not equal parentage equality. Same-sex couples must take additional protections to ensure their parental rights and responsibilities are protected. A birth certificate is useful for many situations, but it is not enough to protect your rights as a parent. Like marriage certificate, it is an administrative document and states will not necessarily recognize it.
Parents who did not become parents through a joint adoption have options about how to get a court order to protect their rights and responsibilities as parents.
Best options during relationship
- Confirmation of Parentage – A confirmation of parentage is similar to a paternity judgment. Instead of being based in genetics, it is based in other factors, marriage, living together since the birth of the child, and more. It results in a court order that should be enforced throughout the land.
- In a situation where one parent is the biological parent or, for some reason, at adoption, only one parent adopted, second parent adoption is an option. The common name for this kind of adoption is often a “Stepparent adoption.” While the concept of adopting your own child can be hard to handle, adoption is a court order that should be enforced throughout the land. Adoption is also the option that many practitioners believe is the most secure for parents.
- Washington has also granted adoption for more than two parents, this is likely the only tool for families intentionally raising their children with more than two parents to ensure all the parents have a legal relationship to the child as the other remedies are only available if the child does not have two legally recognized parents.
Options After a Relationship Ends
If you and your partner jointly took on the efforts to parent and at the end of the relationship the biological (or if only one of you adopted, adoptive parent) tries to claim you are not a parent, in Washington, you have two major options. The first is if you were in a legally recognized relationship (domestic partnership or marriage) than you may be a legal parent based on the presumption. If you were not in a legally recognized relationship you may be entitled to a presumption of parentage under statute or de facto parentage doctrine.
- Presumption of Parentage – Marriage
- A child is presumed to the legal child of both people in a marriage. Washington has a gender neutral parentage statute that is clear that children born to same-sex couples are the legal children of both spouses. The precarious state of LGBTQ rights means that most practitioners will advise you not to rely on the presumption, but there has been growing success in the recognition of same-sex parents based on the marital presumption. If your child was born during your marriage or domestic partnership, in your dissolution you can establish a parenting plan. Best practice would be to make sure that your order states that both parents are the legal parents.
- On June 26, 2017, the U.S. Supreme Court ruled in Paven v. Smith, that a state was required to put a same-sex married parent on a birth certificate.
- Recently, (September 2017), the NCLR had a victory in Arizona, where the Arizona Supreme Court upheld the legal rights of the nonbiological parent of a child conceived during marriage through assisted reproduction.
- Presumption of Parentage – Holding Out Provision
- If you have been living in the same household with the child since the child’s birth, for at least two years, and openly held the child out as your own, you may be entitled to the presumption of parentage. Side note: this is referred to as the “holding out” provision. Washington had it until 2002, then removed it, and then brought it back in 2011. It is similar to the de facto doctrine (discussed below), but it requires that you are in the home from birth to the first two years.
- De Facto parentage – A de facto parent that the law says is a parent with the same rights and responsibilities as a legal or adoptive parent. Once the court determines de facto parentage the de facto parent becomes a legal parent. It is a high threshold to qualify as a de facto parent, you must establish (1) The natural or legal parent consented to and fostered the parent-like relationship; (2) You and the child lived together in the same household; (3) You assumed obligations of parenthood without expectation of financial compensation; and (4) You have been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.
At JELS, Confirmation of Parentage is the specific area of practice. There are great attorneys who do adoption and can be found at the QLaw Directory (do an advanced member search and search for “family law” and searching from that list).