What LGBT Couples Need to Know About Their Parental Rights

What LGBT Couples Need to Know About Their Parental Rights

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By Elizabeth Hoffman

For decades, the LGBT community has proven that love and commitment to a partner or a child is what truly creates a family. The notion that “non-traditional” families are deserving of the same recognition as families formed by the birth of a child to a married, heterosexual couple has not only begun to take hold in the non-LGBT community, but it is also beginning to shape and change state laws that define what constitutes a family from a legal standpoint. This is, and has been, a significant and powerful development for “non-traditional families,” and is particularly significant for Washington state residents.

Many look to our state’s legalization of same-sex marriage as the centerpiece of its progressive approach to family formation. Of course it is, but what some people may not realize is that the courts and lawmakers of this state with the support of dedicated LGBT activists and their allies, have been slowly but surely affording rights to same-sex couples and their children for more than a decade.  It is fair to say that we live in a state where the once-unconventional family is now closer to conventional than it ever has been before.

Prior to the legalization of same-sex marriage, Washington law allowed for the establishment of legally recognized family relationships through a variety of avenues, and some of these avenues remain viable and necessary even in the era of marriage equality. This is particularly true with regard to the doctrine of de facto parentage, a legal remedy which was once one of the few ways that a same sex partner could establish a legal relationship with a non-biological child. In fact, the doctrine was first adopted here in 2005 in a legal dispute between a biological mother and her former partner.

It was during this particular case that the Washington Supreme Court recognized that legitimate family bonds can and do form outside of “traditional” means of family formation (i.e. heterosexual reproduction). The case established that a person with no biological or legal relationship to a child can be considered a parent when that person has in all other ways acted as that child’s parent. For several years, the de facto doctrine was the best available legal remedy for non-biological parents to establish custody of their child after their relationship with the legal or biological parent had ended. This doctrine continues to be upheld by family courts and remains a viable avenue for people, both straight and gay, to establish a legal parent-child relationship even when that relationship was formed in a non-traditional manner.

In 2007, the legislature passed a domestic partnership law which afforded some marriage-like rights to same-sex couples. By 2009, that law had evolved to provide same-sex couples with rights to “everything but marriage,” and likewise broadened the law which governs establishment of parentage in 2011. A now gender neutral statute provides for a legal presumption of parentage for families with children who were brought into the home via assisted reproduction, among other “non-traditional” forms of reproduction. The law also provides an avenue for establishment of parentage in a same sex partnership in which the partners are not married or registered as partners.

With this expansion of legal recognition of, and legal rights to families once considered “non-traditional,” the same-sex family is slowly but surely becoming a new kind of normal.

Sadly, that is not the case in all states yet. This is why it continues to be necessary for same-sex spouses, partners, and parents to take every available precaution to ensure that their relationship with their spouse or child is recognized in other states. If Washington same-sex families are planning to travel to or move to a state that is not LGBT friendly, there are a few important documents that should be kept on hand:

  • All same-sex couples should obtain legal Powers of Attorney for interstate travel.
  • Married same-sex couples should keep a copy of their marriage license in addition to legal Powers of Attorney in case of medical emergency – many hospitals will not let same-sex spouses be involved in their partner’s care without these documents.
  • Same-sex couples who have a child born to them should keep a copy of the child’s birth certificate, and ensure that both parents appear on the document.
  • If same-sex families are considering moving outside of Washington they should also consider a formal adoption for the non-biological parent. This would ensure that both parents have full parental rights regardless of which state they live in.  It is not unheard of for a birth certificate to be rejected as proof parentage; a court order affirming parentage provides greater protection.

Hopefully, as our country’s acceptance and understanding of the diverse nature of “family” continue to grow, “non-traditional” families will no longer have to take extra steps to ensure that the rights they enjoy at home are recognized elsewhere.

Elizabeth Hoffman is an Associate at McKinley Irvin which serves clients in Western Washington and Portland, Oregon. Her practice areas include divorce, adoption and child custody. For more information, visit www.McKinleyIrvin.com.

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