Queer Idahoans had their families narrowly defined, excluding a nonbiological parent from the definition in a recent case, Doe v. Doe, 44419; Supreme Court of Idaho; June 7, 2017.
The case involved a nonmarried couple. In the court’s recitation of facts, it alleged that they were not married because the biomom didn’t not want to formalize the relationship with the nonbiomom. The court concluded that because Idaho’s parentage statute (the statute that defines who is a parent and how you can affirm or rebut your parentage) was clear that the presumption of parentage only applied to married couples and since the couple was not married, the nonbiomom wasn’t a parent (despite the fact their appears to be little to no dispute nonbiomom was involved in ever part of the assisted reproduction decision, there at the birth, and involved in the child’s life as a parent up until the biomom excluded her from the child’s life.
Glaringly absent from the court’s analysis was the fact that the couple’s relationship ended in 2012, for those who have already forgotten our history, same-sex couples were prohibited from marrying in the vast majority of states in 2012. In fact, it was at the end of 2012 that several states, including Washington passed marriage equality (or in the case of Washington, we had a referendum affirming the law passed by our legislature in February 2012). Idaho was not one of those states.
It would take until the June 26, 2015 for the U.S. Supreme Court to uphold marriage equality in Obergefell v. Hodges, 576 U.S. ___ (2015) and outlaw all of the state laws discriminating against same-sex married couples.
The Idaho court refused to create a de facto parentage doctrine and limited an existing decision that perhaps opened the door for nonbiological parents who had acted as parents and formed strong parental bonds with the child from accessing legal rights to the care, custody, and control of their children.
This means that same-sex couples in Idaho are particularly vulnerable if they have not adopted or confirmed parentage through a court proceeding.
It is worth noting, that the court did not address whether same-sex married couples would be prevented from being presumed to be the legal parents of their child. The court discussed Idaho’s parentage statute, which is gendered (i.e., references “mother’s husband”). The court seemed to indicate that its decision turned not on the gendered nature of the parentage act, but that the couple was not married, with the implication that had the couple been married, the nonbiomom may have been considered a legal parent in the eyes of the court. However, I wouldn’t hold on to this distinction as some sort of bright hope that married same-sex couples will be recognized as parents of their children. The fact that the court failed to address the fact that the parents could not legally marry in Idaho for the entirety of their relationship speaks loudly of a bias that they wanted to hide so as their decision would be less likely to be challenged as discriminatory.
As I have often comment in blogs or presentations – marriage equality does not equal parentage equality. Decisions like this make all too clear how precarious our legal rights to our children can be in the LGBTQI communities. Any parents who have children together who have not adopted or affirmed parentage should seek advice from an attorney in their state.
There are options available. Many states have parentage statutes that include a holding out provision, which means that if you have been living with the child since birth and taking on the role of a parent with the consent of the other party, you may be able to affirm parentage. If you are married, every state should have some law presuming that the child is a child of marriage, and even if the statute is gendered, you could pursue a parentage confirmation.
Second parent adoption (a/k/a stepparent adoption) is the option that many attorneys who practice primarily with LGBTQI clients recommend. While this option always sits badly with me, I do not think an intended parent should have to adopt their own child. However, adoptions have been tried, tested, and affirmed. If you have any concerns your spouse, or if your spouse were to predecease you, their parents, would fight to have you excluded from your child’s life, an adoption may well be the safest option.
Sadly, homophobia is alive and well and we know with the spate of laws passing trying to allow same-sex couples to be denied adoption and foster care placements that homophobia will defeat the best interest of the child for many people. As such, protecting your relationship to your child is crucial.