Marriage equality has dominated the LGBT news headlines for the past few weeks, but marriage shouldn't be the only right we think about when it comes to protecting our families. Different-sex parents are not required to marry in order for both to be recognized as legal parents. It should be the same for same-sex couples. Several judges and lawyers have shown recently, however, that they may not understand that.
On November 6, the 6th Circuit Court of Appeals said Kentucky, Michigan, Ohio, and Tennessee did not have to allow same-sex couples to marry. For one of the plaintiff couples in the case, the ruling means putting off not only marriage, but also the security of two legal parents for their child. April DeBoer and Jayne Rowse of Michigan had originally only sought second-parent adoptions of their children, LGBT family law expert Nancy Polikoff explained recently at her blog (BeyondStraightAndGayMarriage.blogspot.com). At the urging of the trial court judge, however, they amended their complaint to seek marriage, which would bring with it the ability to do a stepparent adoption instead. The judge said, in essence, that the couple and their children are not injured by the adoption statute per se, but rather by the fact that they can't marry. If they could marry, then they could adopt.
Polikoff rightly, in my opinion, takes the couple's lawyers to task for not maintaining the separate claim that the refusal to grant a second-parent adoption violates the parents’ and children's rights, when the adoption is in the child's best interests. If the lawyers had made that claim, then even if the court ruled against marriage equality (as it did), it would have been forced to rule separately on adoption. DeBoer and Rowse might therefore have had a chance of both becoming legal parents by now — which they have publicly said was their first priority. Because their right to adopt is now wholly dependent on their marriage claim, however, they must wait to see what the U.S. Supreme Court decides regarding marriage, since the case has now been appealed there.
That's bad enough. Just as worrisome, however, is Polikoff's comment in her post that "the anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption."
That’s akin to the companies that refuse to continue domestic partner benefits once their state enacts marriage equality, forcing couples to the altar if they wish to continue benefits. My spouse and I ended up planning and having our wedding within two weeks of her taking a new job at such a company, just so I could be covered by her health insurance.
But although some judges may be denying second-parent adoptions to same-sex couples unless they marry, a judge in a recent New York case denied a second-parent adoption to a married two-mom couple because they were already married. They judge said that because state law allowed both moms to be on their child's birth certificate, the non-bio mom was already a legal parent and couldn't adopt.
The problem is, because the non-bio mom's right to be on the birth certificate is dependent on the recognition of her relationship with the other mom, her parental rights might not be honored in states that don't recognize their marriage. A second-parent adoption, however, is a legal relationship between the parent and the child, and should be respected in all states. The New York court clearly didn’t understand the intricacies here.
In contrast, the Oklahoma Supreme Court on November 12 indicated that it did understand the separation of marriage and parental rights. The case involved a biological mother claiming that her former partner, the non-biological mother, had no right to seek custody of the children they planned and had been raising together. The court ruled that a non-biological same-sex parent can seek custody, as long as such custody is in the child(ren)'s best interests. The court added that, “Just as step-parents may adopt a spouse's child, so may a same-sex partner adopt a partner's child,” without saying they must be married.
Granted, the legalization of marriage for same-sex couples has led to an expansion of adoption rights for married same-sex couples in states such as Arizona, Utah, and Virginia, where adoption was denied to cohabiting unmarried couples, or where second-parent adoption was denied or uncertain. That’s wonderful news, but doesn’t change matters for those couples who choose not to marry (or want to take their time to plan a wedding rather than rush things like my spouse and I did).
Marriage, despite its many benefits to same-sex couples and our kids, is thus not the sole solution to the problem of making sure a child with two parents has legal ties to both of them. Adoption laws need to be clearly separate from marriage laws so that all children of unmarried couples have the same protections as those of married couples. More states should also recognize de facto parenthood (basically, someone who, with the permission of the legal parent, acts as a responsible parent for long enough to develop a parental bond with a child). That will cover the children of parents who have not done an adoption, either because the paperwork is taking time, or because they don’t have the money, or for any other reason.
As marriage equality continues to spread, we must make sure that all of our family laws keep pace.
Dana Rudolph is the founder and publisher of Mombian (mombian.com), a GLAAD Media Award-winning blog and resource directory for LGBT parents.