Same-sex couples not only form long term committed relationships (regardless of whether the law recognizes their relationship) they often have children, either born during their relationship, adopted during their relationship, or bring children from a prior relationship.
Same-sex couples experience many similar issues as their opposite-sex peers, but they also have unique issues, especially with regard to establishing the legal relationship of the non-biological parent with their child.
One of the biggest issues that same-sex couples and some trans* couples face is that biology itself interferes with the ability for both parents to be biologically related to their child(ren). Couples may adopt a child neither of them is biologically related to, or they can pursue assisted reproduction or surrogacy, which creates issues around the legal relationship of the non-biological parent(s).
Same-Sex Parental Rights in Washington State
There are three ways for LGBT parents to have a legal relationship with their children:
- Same-sex parents can become the legal parents of a child through a second parent/co-parent adoption.
- Since 2009, there is a legal presumption of parentage in Washington, which provides that both people in a domestic partnership or gay marriage are presumed to be the legal parents of children that came into being during the relationship.
- For couples that had children prior to December 2009, it can be determined that the non-biological parent is a de facto parent, which conveys legal parentage status and provide a basis for establishment of residential time if the relationship between the couple terminates.
Outside of Washington State
Because of the patchwork of laws and the discrimination against same-sex families that exists throughout the U.S., the best practice is to do a co-parent/second parent adoption as adoptions are recognized throughout the U.S. and internationally.
The Williams Institute found that in 2011, 20,000 LGBT couples have adopted and are raising approximately 30,000 children in the United States.
Co-Parent & Second Parent Adoption
A co-parent or second parent adoption is similar to a step-parent adoption; it is used to establish a legal child-parent relationship between children who reside with one biological parent and one non-biological parent. In Washington State, it is relatively easy for a partner in a same-sex couple to legally adopt the children they have together. Second-parent adoption is usually permitted even if the couple isn’t married.
A co-parent adoption is important for same-sex parents to protect their parental rights. Even though Washington has a presumption that children born of same-sex couples are both the legal parents, it is unlikely the legal relationship of the non-biological parent will be recognized in a state that does not recognize their domestic partnership or marriage.
Presumption of Parentage
In addition to the 2009 “Everything but Marriage” law, the Washington State Legislature also amended Washington’s Uniform Parentage Act in July 2011, in part to clarify and increase the protections available to same-sex parents. The act provides for the following ways a person can be a presumed parent:
- Presumed Parent: Clarifies that children born of a State Registered Domestic Partnership are presumed to be the child of the both parents. RCW 26.26.116 (1)
- Holding Out Provision: A person is presumed to be the parent of a child if, for the first two years of the child’s life, the person resided in the same household with the child and openly held out the child as his or her own. RCW 26.26.116 (2)
The biggest concern for any couple relying on the presumption of parentage is that the presumption is based on the legal relationship of the parents to each other, and other states may refuse to recognize it. In that scenario, it is likely that those states will not recognize a legal presumption of parentage based on the couple being married or in a state-registered domestic partnership when the child was born.
For example: If a Washington couple has a child during their relationship and does not obtain a second parent/co-parent adoption and they go on a family trip to Idaho, the non-biological parent may now be a legal stranger to his/her child. Idaho does not recognize same-sex marriages or domestic partnerships. Since Idaho does not recognize the relationship that creates the legal relationship to the child, they will not recognize the presumption of parentage based on that relationship.
This means if the couple were travelling by car and got in a tragic accident and the biological parent was unconscious or died, the other parent would have no legal standing to make medical decisions on behalf of the child and may not even be allowed in the hospital with the child.
De Facto Parentage
For couples who had children prior to the effective date of the “Everything But Marriage” law and who have not done a second parent/co-parent adoption, the non-biological parent may be a de facto parent. De facto parentage is established at the end of the relationship and outlines the legal reason why the other parent has a right to residential time with the child(ren).
In 2005, the Washington State Supreme Court affirmed that a non-biological same-sex parent was a de facto parent and entitled to residential time pursuant to the statute regarding parenting plans and division of residential time. The case, In re L.B., 155 Wn.2d 679, 122 P.3d 161 (Wash. 2005), created a four part test for determining whether a de facto relationship exists:
- The natural or legal parent consented to and fostered the parent-like relationship,
- The petitioner and the child lived together in the same household,
- The petitioner assumed obligations of parenthood without expectation of financial compensation, and
- The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Interstate Issues of Parental Rights
The presumption of parentage will likely not be recognized in states with a State Defense of Marriage Act (DOMA), which is a statute or amendment that bans the recognition of same-sex marriages, domestic partnerships or civil unions in that state. Adoptions, however, are recognized and will protect the parental rights of both parents regardless of whether they are together or separated/divorced.
Parenting plans between same-sex couples have been recognized and enforced throughout the United States. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (RCW 26.27), which requires that out-of-state parenting plans be enforced, will likely protect the legal rights of parents once they have a parenting plan.
A Real Life Example
In Miller v. Jenkins, a lesbian couple living in Vermont who entered into a civil union in 2000 decided to have a child together. Lisa Miller is the birth mother and Janet Jenkins is the non-biological mother. In 2002, they had a daughter, Isabella Miller-Jenkins. When the couple separated in 2003, Ms. Miller was granted primary residential time (sometimes called custody) with Ms. Jenkins being granted visitation. Ms. Miller then moved to Virginia with the child, which does not recognize civil unions, and attempted to deny Ms. Jenkins’ rights to visitation.
Ms. Miller availed herself of the Virginia Courts and the district court ordered that she was the sole legal parent. Ms. Jenkins appealed on the basis of the Parental Kidnapping Prevention Act and the prior existence of the Vermont family court order. The Supreme Court of Virginia sided with Ms. Jenkins and ordered in November 2006 that Ms. Jenkins be provided with visitation. Ms. Miller consistently failed to comply with visitation and in November 2009, the Vermont court ordered sole custody of Isabella to Ms. Jenkins.
Ms. Miller refused to comply with the order to produce Isabella. Instead, she fled the country. With the help of Mennonite missionaries she took the child to Nicaragua. Ms. Miller and Isabella are thought to be somewhere in Nicaragua, but their exact whereabouts are unknown.
Issues Surrounding Assisted Reproduction for Same-Sex Couples
Aside from adoption, all same-sex couples who wish to become parents must utilize assisted reproduction methods of causing pregnancy other than sexual intercourse. The term includes:
- Artificial insemination
- Egg donation
- Embryo donation
- In vitro fertilization and transfer of embryos
- Intracytoplasmic sperm injection
These definitions are not entirely clear. For instance, “artificial insemination” is not defined within the law. Same-sex couples using non-traditional methods of conception may or may not fall under the legal category of assisted reproduction.
For example, a lesbian couple could use a man to provide sperm or become impregnated using a doctor or assisted reproduction technologies. The law is unclear whether the “donor” would be considered a “donor” under the statute or if the “donor” would have a legal obligation to pay child support and a legal right to be involved in the child’s life, regardless of the agreements made prior to conception.
These are questions that are not well defined by the law, yet are common concerns for LGBT couples wishing to become parents.