This post originally ran on the blog of the New York Legal Assistance Group, and was co-authored with staff attorney Anya Mukarji-Connolly.
The historic United States Supreme Court ruling that has legalized same-sex marriage sends a strong message of equality across the country – but that same equality does not exist for many LGBTQ families In New York State, who continue to be denied adequate legal protections.
In 2008, when NYLAG first began providing services to low-income LGBT community members in New York City, much of our work involved drafting wills and health care proxies for clients who were unable to marry their partners, and helping non-biological parents adopt their children to ensure they had legal parental rights recognized under the law.
The passage of New York State’s Marriage Equality Act, in 2011, was a significant milestone. But spousal rights stopped at the border, and could not protect families created in New York who travelled or moved to states where their marriages were not recognized. The bill also did not help families created before the parents married or whose children were raised by non-biological parents unable to marry or adopt. And, despite equal access to marriage and family courts in New York, we still see clients who face barriers to full equality, such as being denied orders of protection or shelter based on the nature of their relationships.
Limited Impact on Parental Rights
In New York, a child born to a married couple is presumed to be the legal child of both parents. For lesbian couples, this means that if one parent gives birth to a child while married to her same-sex partner, her spouse is presumed under the law to be the second parent and will be added to the child’s birth certificate. Until the recent SCOTUS ruling in Obergefell, these families were not guaranteed that their parental rights would be recognized in states that refused to recognize same-sex marriages from New York.
After Obergefell, the non-biological parent should be entitled to the presumption of legal parentage based on the marriage in every state. We do not know yet whether all states will apply this presumption equally.
The Supreme Court’s decision protects married couples, who are now free to travel and live where they choose. But it is important to keep in mind that marriage rights and parental rights are two separate issues. Marriage rights are about the relationship between two adults. The legal relationship that a parent has with a child may be affected by whether he or she is married to the child’s other parent – but it may not.
In all states, including New York, the legal presumption of parentage afforded to married parents is a presumption that can be challenged. And some states make it very easy to challenge that presumption with evidence that the spouse is not genetically related to the child. To protect a non-biological, non-adoptive parent, it is advisable that the family use an anonymous sperm or egg donor or, if a known donor is used, that the family and the donor enter into a valid donor agreement. It is advisable to obtain a second-parent adoption when using an anonymous donor, but it is an absolute must when a known donor is used.
Having a non-biological, non-adoptive parent’s name on a child’s birth certificate doesn’t protect that parent if the parentage is challenged in court. A birth certificate is not a definitive statement of parentage: only an adoption or parentage order will ensure protection.
In the days following the SCOTUS ruling, NYLAG has been hearing from clients who want clarification about just what the decision means for their families. Following are answers to several common questions we are being asked:
My partner and I are not married, but I adopted our son after he was born (my partner is the biological mom). Is my second-parent adoption still valid or do we need to get married? Your second-parent adoption is safe. Obergefell doesn’t address the rights of unmarried same-sex couples at all. In New York, the only way for a non-biological parent in an unmarried couple to obtain parental rights to a child whose pregnancy they planned together, and who is a co-parent of the child, is through a second-parent adoption. New York has allowed unmarried partners to adopt jointly for many years, and this right remains. These adoption orders are recognized in all 50 states.
Can my partner and I now adopt in all 50 states? Yes, but you probably have to be married. Obergefell doesn’t specifically address state laws that forbid same-sex couples from adopting, such as Mississippi, which by statute does not allow two people of the same gender to jointly adopt. Texas and Louisiana do not allow two parents of the same sex to appear on a child’s birth certificate. The Supreme Court did not directly address differential treatment of same-sex and different-sex married couples in its decision. However, it is hard to imagine how states will continue to justify discriminatory treatment of LGBTQ families in the future. Some states, even a state like New Hampshire that has had same-sex marriage for many years, require the adoptive parents to be married in order adopt jointly.
My husband and I want to adopt internationally. Will that be allowed now? Each sending country makes its own rules about what families it will permit to adopt. These rules are unaffected by the Supreme Court’s decision. Currently, South Africa and Brazil are the only countries with international adoption programs that knowingly place children with same-sex couples. If you are able to adopt individually, you would be able to complete a second-parent adoption once you brought your child home to the United States.
The LGBTQ community is diverse, including families with biological children, adopted children, families raising nieces and nephews, single parents, parents who choose not to marry, multiple-parent families, co-parents who are not romantic partners, and multiple configurations of the above. Unfortunately, despite significant legal advancements and full marriage equality, too many of them still have no legal recourse or protections. There are efforts in New York to close part of this legal gap. The Child-Parent Security Act, which has been pending in the New York legislature for several terms, offers a set of reforms that will allow people to be recognized as parents with full rights. We look forward to the day when the State gives LGBTQ families the same rights as every New York family to secure and strengthen the parent-child bond.