Children, Parents, Adoption and Legal Rights
If you are not doing everything in your power to protect your child’s rights to be raised by his or her non-legal parent in the event of your death or incapacity, you are putting your child’s well-being at risk.
Although most gay men and lesbians do not have marriage rights, thousands upon thousands enter into committed relationships and many of those partners have or adopt children to complete their family.
Some partners manage to get both of their names listed as parents on their child’s birth certificate through joint or second-parent adoption. Many more create parenting agreements which, depending on their specific state’s law, may or may not be legally binding should the couple break-up, or worse, the legal parent dies.
And, of course, the vast majority of same-sex partners with children do not have any legally recognized relationship with their partner or children at all.
Whatever the situation, one thing is clear – when something bad happens – a break-up or death – children get hurt. And when a child loses both parents simply because no one took the time to create legal protections, it can be devastating.
As of this writing, the District of Columbia and ten (10) states -- California, Connecticut, Illinois, Iowa, Massachusetts, New Jersey, New York, Pennsylvania and Vermont – permit a same-sex couples partner to adopt his or her partner’s child as a second parent without altering the other partner’s parental rights. In other states where second parent adoption rights are not state-wide, district courts have granted second-parent adoption to partners who apply in their specific counties.
If you live in a state or county without second-parent adoption, don’t despair. You can protect your child and your partner’s right to raise your child (in case something happens to you while your child is still a minor) by creating specific legal documents like a Parenting Agreement, Nomination of Guardian and Authorization to Consent to the Medical Treatment of a Minor Child.
A Parenting Agreement is a contract between two partners, one the legal parent and the other the non-legal co-parent (who is usually the legal parent’s partner).
In the Parenting Agreement, the partners agree to raise the child as equal parents, whether or not they stay together as a couple. The partners concur that they are entering into the agreement because they understand it is in their child’s best interest to be raised by both of them – even if the partners no longer live together as a couple.
The agreement requires both partners to support their child emotionally and financially even if state law does not require them to do so. The legal parent should also agree to give the non-legal parent liberal visitation rights in order to maintain and nurture the parent-child relationship.
All of this and more are agreed to because the partners understand that to do otherwise would harm their child.
Other documents necessary to protect your child include a Nomination of Guardian (so that the legal parent can nominate his or her partner to raise the child in case of incapacity or death) and an Authorization to Consent to the Medical Treatment of a Minor Child (so that the non-legal parent can travel with and make medical and educational decisions for the child when the legal parent is unavailable).
Even with all of these documents in place, children may still be unnecessarily harmed when their parents break-up.
If you and your partner have children and decide you are no longer able to stay together as a couple, do your best to make sure you don’t become so angry and resentful that you use your child as a weapon.
Some legal parents (especially those whose partners have no legal rights) will decide that they no longer want their child to visit his or her other parent – not because the ex is unfit but because the legal parent has all of the power when it comes to deciding whether or not to grant visitation rights.
If you behave in this way for no good reason, you may think you are only hurting your ex partner but really, it is your child who will suffer.
Unfortunately, children are used as pawns in a break-up all too often – with straight and gay parents alike.