Do Lesbian Mothers Still Have to Adopt

© November 2016 Deborah H. Wald

NOTE:  This article does not address issues for lesbian couples adopting children from outside their unions.  Instead, it addresses the issues facing lesbian couples having children together, as couples.  Changes in family law mean that many lesbian couples having children together automatically are recognized as parents in their home states without a court proceeding; thus the question arises: do I still have to do an adoption, even if my state (and my child’s birth certificate) already says I am a parent?

Now that the United States Supreme Court has determined that same-sex couples have the constitutional right to marry, and that these marriages must be recognized in all 50 states, many lesbian couples having babies can get birth certificates for their children list both women as parents without an adoption or other court action. This is a huge victory for lesbian couples and, especially, for their children.

Given this historic moment, I am hearing from many lesbian clients asking: “Now that we have won the right to marry, do I still have to adopt my own child?”

Sadly, the answer is YES.

Being a parent is a legal status, subject to interpretation under each state’s laws. Many (if not all) states have something called a “marital presumption” which means that when a married woman gives birth, her husband is “presumed” to be the child’s father. In some states this presumption is based on a biological assumption that a woman’s husband probably is the genetic father of her child; in other states, the presumption is a reflection of a public policy position that marital families should be protected from outside interference.

In states where the martial presumption is based on a biological assumption, typically the presumption is disproved by evidence that a woman’s husband IS NOT the biological father of her child. In these states, lesbian couples are unlikely to gain any status from the marital presumption (sine a woman’s same-sex spouse clearly is not the biological father of her child).

And even in states – such as California – where the marital presumption is a reflection of a public policy protecting marital families from interference, the maritial presumption is not entitled to full faith and credit and will not provide any protection outside of California’s borders.

The Full Faith & Credit Clause of the United States Constitution – which is what makes judgments portable from state to state – does not protect statuses. But if you have a judgment saying you are a parent, then that judgment is entitled to Full Faith & Credit in every state in the country and – under international treaties – in many countries around the world.  Therefore, in order to make parental status portable from state to state and from country to country, lesbian and gay parents will continue to need to make certain they have court judgments saying they are parents, even with DOMA off the books.

We have a graphic example in our national community of why court judgments are essential: In Miller-Jenkins v. Miller-Jenkins, the State of Virginia refused to recognize the parental rights of the non-biological mother of a child born to a lesbian couple who entered into a civil union in the State of Vermont before the child’s birth.  The Virginia trial court refused to acknowledge the parent-child relationship despite the fact that the child was born into an intact Vermont civil union.  Thankfully, the Virginia trial court decision was overturned on appeal, since a Vermont family court had already taken jurisdiction over the case and entered custody and support orders prior to the matter being filed in Virginia.  But absent a court judgment from Vermont, entitled to Full Faith and Credit in Virginia, Janet Jenkins would not have been her daughter’s parent in Virginia despite the presumption that made her a parent in Vermont as a result of the civil union.

The bottom line is that lesbian and gay parents cannot rely on recognition of their adult relationships (e.g. marital, civil union or domestic partnership presumptions) as the basis for recognition of their relationships with their children.  Each parent must do diligence to establish an independent legal relationship with his or her child that does not depend on recognition of her/his relationship with her/his spouse/partner.  That is the reality of the world we currently live in and is likely to remain the reality for some time to come.

In a majority of states, lesbian and gay couples are able to complete adoptions (often called second parent, co-parent, or domestic partner adoptions) to formalize their parental relationships with their partners’ adopted or biological children.  Several states also allow same-sex couples to bring parentage proceedings to declare a legal relationship between the non-biological parent and the child before the child is born.  Lesbian couples typically are bringing adoption proceedings after the child is born, especially in states where they are able to get their names on their children’s birth certificates and earn state recognition as parents automatically through application of the marital presumption, and therefore can wait until after birth to secure a judgment that makes their parentage portable.  (Where there is a reason why parentage needs to be adjudicated before the child is born, a parentage action will be the better route.)  But whether by adoption or parentage action, what matters is that the couple obtains a court judgment that states unequivocally that both are parents.

In recent years, California has taken great strides to make our Family Code gender neutral, sexual orientation neutral, and marital status neutral. Lesbian couples now are able to obtain adoptions or parentage judgements regardless of whether or not they are married – although the procedures will differ.

Given the uncertainty of the times we live in, and given the growing chasm between the states that are protecting same-sex families and those that are not, there is no question that same-sex couples who live in states that offer them the opportunity to provide robust legal protections for their relationships – and, most especially, for their relationships with their children – are well-advised to do so.  By bringing an adoption or parentage action, and obtaining a final judgment, they can create a legal parent-child relationship that is not dependent on their adult status as domestic partners or spouses, and avoid the heartache of litigation in a hostile jurisdiction at some later date that can prove financially and emotionally devastating for all involved.

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at The Wald Law Group, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.