Representation of Clients in Same Sex Parenting Disputes: Too Many Questions, Too Few Answers

September 1, 2005

September 2005

Every parenting case brings its own unique challenges. It is difficult enough to meet the needs of the traditional family in crisis where the law is generally well-defined, and the precedent is ample. Even unmarried parents of children can be given some level of comfort and predictability to the extent that is ever possible in a parenting case because the courts have dealt with these matters with at least some uniformity. We know what the issues are; we have handled similar cases before; the courts are comfortable dealing with the controversies presented.

When, however, the children at issue have been parented by a couple of the same sex, so much depends upon where the parties live as the results vary from state to state and county to county. The purpose of this article is to focus on the issues confronting both parents, particularly the parent with no biological connection to the child, and to give some of the author’s personal thoughts on how to minimize the unpredictability of the future for members of the non-traditional family.

Pre-Birth or Pre-Adoption Planning
As attorneys, we so often wish clients would come to us prior to the point of a dispute. How often do we ask clients why they did not seek a prenuptial agreement before the wedding, prepare a trust prior to the need to obtain nursing home care, or consult with counsel before unilaterally modifying child support payments due to a change in circumstances? In the arena of same sex parenting, the need to plan in advance is even greater and can be even more beneficial than in other areas of law. We must convey to our clients and the public at large the importance of preparing and executing documents which can hopefully be used to fill in where the law has not yet gone.

If the decision is to adopt, the first order of business is to check the statutes governing adoption to determine whether they are broad enough to allow both parents to adopt. Even that may not be sufficient. In the author’s own small state of New Hampshire probate court judges reach differing and inconsistent conclusions regarding approval of an adoption by two parents of the same sex. It may be beneficial to speak with the clerk of the court or other counsel with experience in the area to determine whether there are any “unwritten” rules or practices in place in a particular county. It is better to learn this early on because the couple may have no viable option other than to relocate to a different jurisdiction. At last count, at least 22 states have approved second parent adoptions in at least some counties.

If second parent adoption and relocation are not viable alternatives, the option of a dual guardianship should be explored. Although a guardianship may be terminated, it is useful in several respects. First, it establishes a legal relationship between the non-birth or non-adoptive parent and the child. A dual guardianship also allows both parents equal access and responsibility. It is a simple way to make certain that both parents have access to medical and school records and allows both to consent to medical treatment, to sign field trip permission slips and simply to carry on the business of being a parent.

Parents who have not adopted should also be mindful of the fact that intestacy laws will not automatically allow the child to inherit. Therefore, complete estate planning documents are not only important to grant the domestic partner rights to inherit and to make end of life decisions, they are also important to insure the legacy of the child.

In the event the couple makes the decision that one of them will give birth to a child which they will raise together, counsel should encourage the parties and the sperm donor (if known) to sign a written agreement setting forth the terms of the relationship among them. The agreement should address such matters as parental rights and responsibilities (legal and physical custody), waiver of rights by the donor, financial arrangements, the possibility of living apart in the future, and mediation of disputes. Although the enforceability of such an agreement may be limited, which should be stated in the agreement itself, the document is a way for the parties to acknowledge and confirm their intentions as early on as possible. Another important document that is often overlooked is an authorization to be signed by the biological parent to enable the non-biological parent to consent to the care and treatment of the baby if something happens to the birth mother during the delivery making her unable to consent.

Parenting and Visitation Issues
The reality is that families break up for a variety of reasons. If the couple has put protections such as adoption, guardianship or a written agreement in place, disputes may still arise over any number of issues, and litigation may ensue. Where there has been no legal mechanism used to attempt to formalize the relationship of the non-birth parent to the child, the wrangling at the time of the break up may be even more heart wrenching and bitter.

As always, parents should be encouraged to put the child’s welfare first and to honor their agreements unless to do so would compromise the safety of the child. Of course, parents are sometimes unable to do that, and one parent feels the need to resort to the courts for relief. Judges are then faced with making decisions concerning parenting, visitation and child support against a backdrop of inconsistency in state law as well as a political climate adverse to accepting the reality of non-traditional families. Although a few states have recognized same sex marriages and civil commitment relationships, many more have enacted Defense Against Marriage Acts which refuse to recognize same sex marriages.

Although a survey of court decisions addressing such parenting issues is well beyond the scope of this article, the United States Supreme Court decision of Troxel v. Granville, 530 U.S. 57 (2000) must be mentioned. Although the case did not involve same sex parents, there was a clear implication that a nonparent challenging the rights of a fit biological parent to raise his or her children as he or she sees fit, has an uphill battle.

Non-birth parents have used various legal theories to bolster claims for parental or visitation rights. Courts have applied a “psychological parent” test or utilized the doctrine of in loco parentis to determine whether a “third party” should have continued contact with a child in the face of objection by a biological parent. Unfortunately, the outcomes can be very unpredictable.

Some states such as Florida, Illinois, New York, Ohio and Tennessee have denied standing to non-biological parents to seek any continuing relationship with the child. In Vermont, a non-biological parent was denied continued contact with a child based on the theory that she was a “de facto” or “equitable” parent because she did not take measures to protect her rights by adopting the child to whom her partner had given birth. California, which provides the opportunity for second parent adoption, has seen similar results.

Colorado, Maine, Indiana, Minnesota, Missouri, and Washington have allowed non-birth parents to petition for shared parental responsibilities while others such as Connecticut, Maryland, Massachusetts, Michigan, New Mexico, Pennsylvania, Texas and Wisconsin have at least gone so far as to allow a petition for continued contact or visitation with the child.

The good news for children and parents in non-traditional family settings is that they live and function in almost every community in every state in this country. Schools, daycare centers, and medical practices are adapting to the needs of these families. The legislatures, and sometimes the courts, are unfortunately lagging behind. Often judges faced with making painful decisions to deny men and women who have raised children from birth the right to be involved in those children’s lives comment on how unfair and troubling the result may be. However, they are sometimes powerless to make different decisions because state legislatures have not seen fit to recognize the relationships between these parents and children as legal ones.

It is incumbent upon the parents and the attorneys who represent them to be knowledgeable about what their states allow and what protections are available. Once they know, they must take appropriate and definitive measures to make certain that all legal documents are in place and then to honor those agreements in the best interests of their children.

Charla Bizios Stevens is a member of the Domestic Relations Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at 603-628-1363 or The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmout.