• 29
  • September
    2011

Previously we have blogged about how, despite the passage of the Marriage Equality Act, same-sex couples in New York will continue to face challenges when it comes to having their marriage recognized in other states. Implications also existed for same-sex couples divorcing and enforcement of those decrees.

Those are not the only family-law related challenges faced by gay couples in New York -- another major battle occurs when it comes to parental rights.

Currently, the law is such that when a same-sex couple has a baby and an unknown donor is involved, the non-biological parent has no parental rights. To secure those rights, that parent must apply for a second-parent adoption. The legalizing of same-sex marriage in New York now raises the question of whether this second-parent adoption is necessary.

When a child is born into a heterosexual marriage, there is a presumption by the courts of legitimacy -- that is, it is presumed that the married couple are the biological parents of the child. In New York, the question now is whether this presumption would also apply to married same-sex couples.

But even if New York does determine that the presumption of legitimacy holds true for children born into same-sex marriages, same-sex couples may still want to extra steps to secure parental rights.

If the family were to move to a state that does not recognize same-sex marriages, then there could be danger in having the parental rights tied to the marriage, because that state might also not recognize parentage. It is best, then, if you are not the biological parent, to fully protect your own legal rights by discussing a second-parent adoption or other options with an experienced family law attorney.

Source: Creative Parenting Agreements Still Needed With Same-Sex Marriage