Rights of the Non-Biological Parent in Same-Sex Marriage

Mothers having fun with their son and pet. Rights of the Non-Biological Parent in Same-Sex Marriage

Becoming a parent, whether through giving birth, adoption, or surrogacy, is one of the most joyful experiences a person can have. Most parents do not have to think twice about their legal rights regarding their children; they can simply immerse themselves in the joys (and challenges) of new parenthood. Unfortunately, non-biological parents in same-sex marriages do not automatically enjoy those same legal rights.

A non-biological parent can be as involved in planning a family, and as present and active in their child’s life, as the biological parent. The child probably doesn’t make, or even understand, any distinction between their “biological” and “non-biological” parent. It can be easy to forget that a legal distinction between the two parents even exists until a legal issue arises. At that time, when a parent needs to consent to medical care for a child, or pursue custody after divorce, it may be too late to think about non-biological parent rights.

How Non-Biological Parent Rights Can Be at Risk

A non-biological parent in a same-sex marriage is in a similar situation, legally speaking, to a stepparent. Even a deeply involved stepparent does not have the same rights as a legal parent. But a non-biological parent is not the same as a stepparent; they are a true parent, and deserve legal recognition of that fact.

Like a stepparent, a non-biological parent may have some rights that are granted by the biological parent, like the ability to pick up the child from school or communicate with their doctors. However, it is important for all parents to have rights to their children that are not contingent on the choices or whims of another person.

It’s not hard to imagine a situation in which a same-sex couple raises a child together for ten years before their marriage falls apart. The biological parent may have always promised the other parent that they would have access to the child no matter what. But if they divorce, the non-biological parent may find it difficult or impossible to pursue child custody or parent time if they have no legal relationship to their child. If the biological parent is the only legal parent, they can pick up and move the child across the country. The non-biological parent would have no recourse, and might never see or hear from their child again.

So, how can a non-biological parent protect their rights? There are ways, but they involve being proactive. If you are a non-biological parent, don’t wait until there are problems in your relationship with the other parent before addressing this issue.

Protecting Non-Biological Parent Rights

Many states have “second parent adoption” laws, which allow a non-biological parent (whether or not married to the other parent) to adopt their child. After completing a second parent adoption, the adopting parent has the same full legal rights as the biological parent.

Unfortunately, Utah does not offer second parent adoptions, at least not for unmarried couples same-sex or opposite sex), even if they live together. Under Utah adoption law, a child may only be adopted by “adults who are legally married to each other in accordance with the laws of this state,” or a single adult under limited circumstances, such as a family placement.

Parents in a same-sex marriage have the same option available to them as biological parents and their child’s stepparents: the stepparent adoption process. Using that process isn’t perfect; it does not reflect that the non-biological parent is, and has always been, acting as the child’s parent. That said, it yields the desired legal result. Stepparent adoption creates the same legal rights in the non-biological parent that the biological parent has always had.

What about same-sex partners who have chosen not to marry, for whatever reason? Utah law prevents them from adopting from a partner’s child. Unfortunately, in Utah, the partner who is not a legal parent of the child the couple is raising together does not have standing to file a parentage case. The only option for an unmarried non-parent is to file a Petition for Custody/Visitation by a Non-Parent under Utah Code 30-5a.

A Birth Certificate is Not Enough

Is being named as a parent on a birth certificate sufficient to create legal parenthood? The issue has not been addressed in Utah courts, but a 2017 Idaho custody ruling suggests that being named as a parent on the birth certificate does not establish legal parenthood. In that case, the non-biological parent in a lesbian couple was denied the right to pursue custody after the couple’s divorce even though she was named on as the child’s parent on her birth certificate.

The takeaway is clear: if you are a non-biological parent in a same-sex couple in Utah, protect your parental rights as soon as possible in a way that is legally recognized. That means stepparent adoption if you are married to your child’s biological parent.

Remember, parental rights don’t only matter when seeking child custody in a divorce. Being a legal parent protects your rights regarding the child you are raising in the event that their biological parent should die. As a legal parent, you have a right to make decisions about your child’s education, religious upbringing and medical care. As legal relatives, you and your child would inherit from each other under state law. Your child may also be entitled to military or other government benefits through you if you have a legal parent-child relationship.

If you want to learn more about preserving your rights as a non-biological parent, contact Barton Wood at (801) 326-8300 to schedule a consultation.

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Categories: Child Custody