Many same-sex couples take it for granted that they are their children's parents. However, there are specific legal steps that need to be taken to be recognized as a child's parent if you didn't give birth to the child. These can help ensure that should the two of you break up or the legally-recognized parent dies, you'll still have all of the legal rights of a parent.
Why the Birth Certificate May Not Be Enough
Even though same-sex marriage is now recognized in every state, the laws around gay parents still vary significantly across the country. For example, even if one of the parents gives birth to the couple's child and both parents' names are on the birth certificate, that doesn't mean that a court will recognize the non-birth parent's rights even though you're legally married.
For heterosexual couples, the law recognizes the husband listed on the birth certificate as a legal parent. However, state laws are still catching up in their gender language involving spouses. Therefore, while it may be a battle you can win eventually, it's best not to rely on the birth certificate alone to establish your parental status.
Ensuring Your Legal Status as a Parent
If you are the non-biological, non-adoptive parent of a child, the best way you can ensure that you're recognized as a legal parent is to adopt the child. You can also obtain a parentage court order. If you get a court order to establish your parentage, it's important to make sure that it's recognized in all states. Otherwise, if you and/or your spouse move, you could find that the courts there won't recognize it.
If you and your spouse decide to have a child using a surrogate, you should talk with an attorney to make sure that you're both legally establishing your parental rights. Surrogacy laws vary widely throughout the U.S.
Qualified same-sex couples are allowed to adopt children together. By doing this, you're both becoming legal parents of the child.
Since no one knows what the new Trump administration will bring when it comes to rights for lesbian, gay, bisexual and transgender Americans, gay couples who want to make sure that the non-biological parent will always be recognized as their children's legal father or mother -- no matter where they live or what happens to them as a couple -- should consult with a family law attorney who can help them take the necessary steps.
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