Same-sex couples who are raising children together, or plan to do so, should take advantage of any opportunity available to secure the parental rights of both parents. Many lesbian and gay parents who have not done so find themselves locked out of their children’s lives after the couple’s relationship ends or their partner dies. This is obviously devastating for both parent and child.

Up until relatively recently, same-sex couples who were raising children together could not both be legally recognized as their children’s parents. Now, courts in a number of states have recognized and protected these parent-child relationships through adoption and other means. The options available for establishing parental rights vary greatly from state to state, and even within states.

Securing Equal Parental Rights Together—Second-Parent Adoption and Other Options

In a number of jurisdictions, lesbians and gay men (as well as unmarried heterosexuals) can petition a court to adopt their partner’s biological or previously adopted child. In these jurisdictions, courts will grant such adoptions—often referred to as “second parent adoptions”—if the legally recognized parent consents, and the adoption is deemed to be in the child’s best interest. When a second-parent adoption is complete, the adoptive parent has full and equal parental rights and responsibilities. This option, if available, is the safest course to secure both parents’ parental rights. In order to obtain an adoption, you will need to get a lawyer.

Second-parent adoptions vary from state to state, depending on the local courts’ interpretation of the state’s adoption statutes. In some states, appellate court rulings have established that second-parent adoptions are available statewide. In others, appellate rulings bar judges from granting second-parent adoptions anywhere in the state. And in still others, the availability of second parent adoptions varies from county to county or even from judge to judge.

In some states, alternatives to adoptions exist, such as court declarations of parentage or guardianships. And in some states where gay couples can marry or enter into civil unions or domestic partnerships, children born into the family will be automatically considered the child of both spouses/partners.

“Psychological Parenthood”

Establishing both parents’ parental rights through adoption or other means while they are living together as a family is ideal. However, for couples who live in areas where that is not possible, or who never went through the applicable legal processes, there are ways to protect the non-legally recognized parent’s relationship with his or her children in the event the couple separates or the biological/adoptive parent dies or becomes incapacitated.

Ordinarily, individuals who are not biological or adoptive parents are not entitled to petition for child custody or visitation. However, in an increasing number of states, adults who function as parents to children despite the lack of a legal relationship with the child—often referred to as “psychological parents” —may petition for visitation, and in some cases, custody. To establish “psychological parenthood” in these jurisdictions, the courts have typically held that the individual must show that:

1. she or he lived together with the child in the same household;
2. she assumed the obligations of parenthood without expectation of financial compensation;
3. the legally recognized parent consented to and fostered the parent-child relationship; and
4. a bonded, parent-child relationship has developed.

While the trend in the courts has been toward recognition of “psychological parenthood” and the protection of children’s relationships with their psychological parents, the courts in some states have rejected this doctrine. In those states, if you are not a biological or adoptive parent, you generally cannot seek child custody or visitation. In many states, this is still an open question that has not been addressed by the courts.

Parenting Agreements

While courts generally do not enforce contracts concerning the care of children, co-parenting agreements can still be valuable, particularly in jurisdictions where there is no way to gain formal recognition of both parents’ parental relationships. Co-parenting agreements typically spell out both partners’ understanding and expectations regarding their parental roles and their intentions regarding custody, visitation and support in the event the couple breaks up. Having these intentions set out in writing can be helpful when the flaring emotions and antagonism that often accompany separation impair memory and cloud judgment. Moreover, in jurisdictions that recognize “psychological parenthood,” a co-parenting agreement can be strong evidence of some of the elements necessary to establish that someone is a psychological parent.