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30 Hum. Rts. 9 (2003)
Family Matters: Establishing Legal Parental Rights for Same-Sex Parents and Their Children

handle is hein.journals/huri30 and id is 63 raw text is: Family Matters: Establishing Legal Parental Rights for Same-Sex Parents and Their Children By Tiffany L. Palmer ame-sex couples are changing the of the nonlegal parent, become a ward portrait of the American family of the state, or be placed with the child's and the landscape of family law. blood relatives whether or not the child The number of children raised by les- has a close relationship with them. Even bian and gay parents has continued to a legal parent's nomination of the part- increase as reproductive technologies ner as the child's guardian in a will is no advance and as the availability of guarantee that those wishes will be fol- adoption expands. For same-sex parent lowed. Two reported cases involve a families, it is essential to ensure that child with same-sex parents whose legal both parents have a legal parent-child parent died without a second-parent relationship with their children. When adoption in place. In McGuffin v. a married couple has a child together, Overton, 542 N.W.2d 288 (Mich. Ct. both parents automatically have a legal App. 1995), the court denied custody to parent-child relationship with the child, the lesbian coparent after the death of Because same-sex couples cannot cur- the biological mother, despite a power rently marry, this automatic legal rela- of attorney and will designating the tionship is not available, and, in most coparent as the child's legal guardian. In situations when a same-sex couple has another case, the child's maternal grand- a child together, only one parent has a parents denied the coparent visitation legal relationship to the child. after the mother's death and then adopt- This lack of a legal relationship has ed the child without the coparent's very real and important consequences knowledge or consent. The lesbian for the child. Without a legal relation- coparent petitioned the court to invali- ship with the second parent, a child has date the adoption and was ultimately no right of financial support or inheri- awarded custody, but the victory was tance from the nonlegal parent and can- not without legal and emotional cost. In not receive social security, retirement, or re Pearlman, 15 FLA. L. REP. (BNA) 1355 state workers' compensation benefits if (Fla. Cir. Ct. May 30, 1989). the nonlegal parent dies or becomes The vulnerability is also acute if the incapacitated. The child may also be relationship between the parents dissolves. ineligible for health or other insurance Without a legal relationship to both par- benefits supplied by the nonlegal par- ents, in the event of a separation, the child ent's employer, and the nonlegal parent may have no right to child support from could be ineligible for leave under the the nonlegal parent and may also be pre- Family Medical Leave Act if the child vented from maintaining a relationship became seriously ill. Even in an emer- with that parent. Although courts in cus- gency, the nonlegal parent may not be tody cases generally attempt to ensure able to consent to medical treatment or ongoing relationships between children even visit the child in the hospital. and both parents after a separation, this The vulnerability becomes even often is not the case for same-sex parents. more acute in cases where the legal par- In the absence of a legally recognized par- ent dies or becomes incapacitated. ent-child relationship, a second parent may Without a legal parental relationship, be held to be a legal stranger to the child the child may be removed from the care with no right to custody or even visitation with the child. Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian- Mother and Other Nontraditional Families, 78 GEo. L.J. 459 (1990). Given these circumstances, it is vitally important for the parents to take steps to establish a legal relationship between the second parent and the child. Typically, a child who enters a same-sex family already has a legal relationship with one of the partners, either biologically or through adoption. The challenge then becomes how to create legal rights for the parent's part- ner, who often planned and participat- ed in the birth of the child with the intention of coparenting the child. In what ways can the law inhibit or affirm and protect a parent-child relationship that already exists psychologically and emotionally? One of the most common methods of establishing this legal rela- tionship is a second-parent or coparent adoption--categories with which many lawyers are not yet familiar. Adoption laws, which are regulated by state statutes, are the basis for creating legal rights between a parent and a child where there is no existing legal relation- ship. During the past twenty years, sec- ond-parent or coparent adoption has evolved as a method to secure legal rights for same-sex parents and their chil- dren. Second-parent or coparent adop- tions permit the second partner to become the child's second legal parent without requiring termination of the first partner's parental rights. These adoptions protect children being raised by parents who do not have the legal sanctions of marriage, by providing the child the security of two legal parents. Summer 2003 Human Rights

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