What Are Your Legal Rights as LGBTQ Parents? Legal Experts Explains.
Photo by Marie Labbancz Photography
By Michele Zavos and Cody M. Perkins
Marriage equality is the law of the land! On June 26, 2015, the United States Supreme Court determined that every U.S. state must recognize and perform same-sex marriages, and couples around the country began to receive the benefits and responsibilities of legally-recognized marriages in their home states. For couples raising children or planning to do so, this new development raises questions about how marriage equality affects them as parents: does marriage equality automatically make them both legal parents to their children? Does it provide additional opportunities to them, such as adoption or getting other court orders? If a couple had married in a jurisdiction that recognized their marriage prior to this ruling, would states which had not previously recognized their marriage count them as married from that prior date, or from the date that state began to recognize their marriage? Would it matter when their children were born or adopted?
Unfortunately, the answers to these questions are not clear, as marriage equality does not automatically update laws regarding parentage. It may be tempting for same-sex couples to rely on a legal principle called the “marital presumption,” which says that one spouse is presumptively a parent to a child born to the other spouse, as long as the parties were married at the time of the child’s birth. Most states have some version of the marital presumption. In theory, this could mean that two women, married to one another, could have one spouse give birth, and that that child would be the presumptive legal child of both women.
Michele Zavos is a partner in the Zavos Juncker Law Group, PLLC, which practices family law in the District of Columbia, Maryland, and Virginia. Cody M. Perkins is an associate and legal fellow with the firm.