by Joyce Kauffman, Esq.
There is a case being litigated in Texas right now that raises a serious question about whether or not same-sex married couples stand on equal footing with heterosexual married couples. The City of Houston had a policy offering benefits to married same-sex couples and then was sued by a group of same-sex marriage opponents who succeeded in getting a Judge to block same-sex couples from continuing to receive those benefits. Last June’s Texas Supreme Court decision, which determined that all marriage-related matters were not decided when the U.S. Supreme Court established a right to same-sex unions in 2015, leaves room for state courts to explore the limits of gay marriage.
This is a scary thought. If the City of Houston does not prevail, that would mean that Texas employers would be prohibited from providing benefits to same-sex spouses (and maybe families).
This means that same-sex couples would be considered legally “less than” heterosexual couples. Kind of like the days when women couldn’t own property. A public policy that encourages discrimination is not one I want any part of. That aside, there are some things you can do to protect yourself.
We’re fortunate to live in Massachusetts where both married and unmarried same-sex couples are legally entitled to all the benefits of marriage.
The thing I want to talk about here is the one thing all parents can easily understand: if you divorce, you do not want your spouse to try to argue that you are not a legal parent to your children. If you are not considered a legal parent, your relationships with your children will not be protected by the court.
Unmarried same-sex couples must adopt in order for both of them to be considered legal parents. It is not a difficult process and your children will thank you! A recent Massachusetts decision gives hope to unmarried parents who haven’t adopted that they can attain legal parental status. This is great, of course, but you might want to avoid having to litigate whether or not you’re a parent.
And you might think that married same-sex couples wouldn’t have to adopt – after all, there are laws that require both of them to be listed on their children’s birth certificates. One of these laws is called the ‘marital presumption’ which means that if a married woman has a child, her spouse is presumed to be the parent. The other is for married couples who use assisted reproductive technology to conceive (such as IVF or donor insemination); that law says that you are both parents if the spouse consented to the procedure.
It is a wonderful thing to obtain an accurate record of your child’s birth. However, public records are not entitled to respect by other states in the way court judgments are. Remember Texas? What happens if you’re in a state where the law says just because you’re on the birth certificate doesn’t mean you’re a legal parent?
When you get an adoption judgment, that judgment, which says both of you are equal, legal parents, must be respected by all other states.
Even the Supreme Court said so last year when it ordered the state of Alabama to recognize Georgia adoptions by a lesbian couple. In that case, the couple had children together and obtained adoption judgments in Georgia where they lived at the time; this made them both legal parents. When they moved to Alabama and broke up, the biological mother asked the court to sever her former partner’s parental rights. Fortunately, for that mother, the Supreme Court said you must respect the Georgia adoptions. If they had not done the adoptions, that mother would almost certainly have lost all her parental rights.
A knowledgeable attorney can walk you through the adoption process, which is pretty straightforward. And, the court recently instituted a procedure for same-sex married couples doing ‘confirmatory’ adoptions: the procedure can be done administratively without the need for you to go to court.
It makes sense to do the adoption. Protect yourselves and your children. Believe me, they will thank you.
Widely recognized for its cutting edge work in LGBTQ family law, Kauffman Law & Mediation provides assistance in all areas of family law, with a focus on mediation, adoption, assisted reproductive technology law, conciliation, divorce coaching and consultation.