As with opposite-sex couples, same-sex couples in committed relationships often choose to raise children together. These children may be adopted, brought from a former relationship, conceived through surrogacy, or carried by one of the partners.
Same-sex and opposite-sex couples often face similar issues; however, same-sex couples do experience unique issues, especially with regard to establishing the legal relationship of the non-biological parent(s) with their child.
Same-Sex Parental Rights in Washington State
There are three ways for LGBT non-biological 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 same-sex 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. Establishment of de facto parentage may also be available in circumstances where a child from a past relationship is brought into the relationship and the non-biological "parent" holds him or herself out as the parent of the child, lives with the child, and has no hope of being compensated for their care and support of the child. De facto parentage cases are highly contextual, and should be discussed with a family law attorney.
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 had adopted and were 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 a child and their 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 domestic partners or spouses are both the legal parents of the child, the legal relationship of the non-biological parent may not be recognized in other states without a second-parent adoption.
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).
An unfortunate reality for any parent relying on the presumption of parentage is that the presumption is based on the legal relationship of the parents to each other. This means that states that do not recognize the parent's relationship to each other may not recognize the non-biological parent's relationship to the child
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 between the parents, they may not recognize the presumption of parentage based on that relationship.
This means if the couple was travelling by car and got in a tragic accident and the biological parent was unconscious or died, the other parent may 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
If the non-biological parent to the child cannot rely on the presumption and has not adopted the child, they may still have grounds to obtain parent-like rights to the child by showing that they are a de facto parent to the child. De facto parentage is established at the end of the relationship between the partners/spouses and provides the legal reason why the other parent (who was not previously a legal 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.
This area of law continues to evolve. It is much better for a non-biological parent to proactively establish his or her parental rights prior to his or her relationship (with the child) being threatened. While de facto parentage is a remedy available in certain circumstances, it is best to clarify your legal relationship with your child soon after your partner/spouse adopts or gives birth to the child.
Interstate Issues of Parental Rights
It is unlikely that the presumption of parentage will be recognized in states with a State Defense of Marriage Act (DOMA). A DOMA 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 their relationship is intact.
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 (a state that did not recognize civil unions) with the child 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.
Legal Issues When Same-Sex Couples Utilize Assisted Reproduction
Some same-sex couples who wish to become parents choose to utilize assisted reproduction methods to have a baby. Assisted reproduction is defined by RCW 26.26.011 as a method of causing pregnancy other than sexual intercourse. These methods may include:
- Artificial insemination
- Egg donation
- Embryo donation
- In vitro fertilization and transfer of embryos
- Intracytoplasmic sperm injection
Same-sex couples using non-traditional methods of conception may or may not fall under the legal category of assisted reproduction. For example, when a lesbian couple uses a male friend to provide sperm, instead of using an anonymous donor, 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.