Love makes a family, but what makes a legal parent?

LGBT families have spent decades fighting for legal recognition and protection. Many of us recall a time not that long ago when children in our Commonwealth could not have two legal parents of the same sex. On August 20, 2002, the Pennsylvania Supreme Court in In Re Adoption of R.B.F. and R.C.F. held that a person may adopt the legal child of his or her unmarried partner without the first parent terminating his or her parental rights. While this process is similar to stepparent adoption, the Court did not apply the stepparent exception of the Adoption Act (which allows a stepparent to adopt without the existing legal parent having to terminate his or her parental rights) because, at the time, same-sex partners could not marry due to the Pennsylvania Defense of Marriage Act (Pa DOMA). 

The federal court decision in Whitewood v. Wolf, which legalized same-sex marriage in the Commonwealth in 2014, opened the door for stepparent adoptions for married same-sex couples in Pennsylvania. After the Whitewood decision, on May 31, 2016, the Pennsylvania Department of Health issued guidance to hospitals advising them that both mothers should be listed on the original birth certificate where a child is born to a married same-sex female couple. Since that time, throughout the Commonwealth, birth certificates issued to children with married female parents have listed both women’s names on the original birth certificate. This is also true when a child is born to a married couple when one parent is transgender and one parent is not biologically related to the child. For male couples using a surrogate, a pre-birth order must be obtained to name both fathers on the original birth certificate.

While issuing birth certificates in this manner appeared to be a major step forward to securing the parental rights of both same-sex parents to their children, it has, instead, created a false sense of security for parents who are not biologically related to their children. Although a birth certificate is a state-issued document, it is not a legal determination of parenthood.

Sadly, the fiercest attacks on LGBT families often come from members of our community when they are engaged in custody battles. In my practice, I have often defended a nonbiological parent against a biological parent’s challenges to the legal parental rights of the nonbiological parent, even when the couple had planned for and raised the child together. 

The word “parent” is not defined by in any Pennsylvania custody statute. There is no question that a “parent” includes those who are biologically related to, or who have adopted, a child. C.G. v. J.H., the most recent Pennsylvania Supreme Court case to examine this issue, suggested that an individual may also be a parent by a presumption of parentage created through marriage or a contract where a child is conceived through assisted reproduction. However, in the C.G. case, the court found that there was neither a contract nor marriage; thus, whether a same-sex partner is a parent through the “marital presumption” or by being a party to an assisted reproductive contract is a question that has not been definitively answered in Pennsylvania.

For this reason, I always recommend that nonbiological parents confirm their legal rights through adoption. Although few anticipate that their legal rights may ever be challenged by the other parent, governmental entities or other family members, an adoption ensures that the adopting parent’s rights will be recognized. This is simply the best “insurance policy” to protect against a challenge to one’s parental rights. A judgment of adoption is recognized not just in Pennsylvania, but in every state in the country. Because state laws vary and parenthood is determined in the state at the time the question is raised, it is important to know that your parental rights will be protected no matter where you live in the future.  

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