Children come into the lives of same-sex couples in a variety of ways. Sometimes they adopt them together. In some cases, one spouse is artificially inseminated and gives birth. In other cases, particularly for male couples, a surrogate is hired to carried the baby. As with heterosexual couples, sometimes a child is already in the picture when they get married. Perhaps one person adopted a child on his/her own while still single.
Whatever the case, it’s essential for anyone who is not the biological or adoptive parent to understand that under the law, they aren’t the child’s parent. That means that if the couple gets divorced or the biological or adoptive parent dies, the other parent may have no rights to custody, visitation or decisions regarding that child.
Those things will be decided by a court if the parent pursues those rights. While Massachusetts courts have a history of being friendly to same-sex couples and parents, if you and/or your partner move to another state, you can’t necessarily count on the same level of recognition that gay parents have the same bonds with their kids as straight ones.
In the current political climate, it’s possible that states could be given more latitude to make laws discriminating against gay couples. That’s why it’s wise to secure your status as your child’s legal parent.
That involves either a formal adoption or a court order that is valid in all states that designates your parentage of the child. Many people think that the fact that their name is on the birth certificate with that of their spouse who gave birth that they are the child’s legal parent. However, that alone isn’t enough. While it’s a good idea to have your name on the birth certificate and it’s important to many parents to do so, it’s no guarantee that you’ll be granted any rights should your relationship with your spouse end, either by divorce or death.
Regardless of how you plan to bring a child into your lives or how the child you already have got there, if you want to secure your rights as his or her legal parent, you should consult with a Massachusetts family law attorney who is experienced with same-sex family law issues.
Source: Marriage Equality FAQ, “Parent-Child Relationships,” accessed Jan. 30, 2017
