Imagine the government telling you that the child you’ve raised from birth isn’t legally yours. What if you travelled to another state or country and suddenly you’re told that you’re legally not the parent of your child? Imagine not being allowed input on your child’s medical decisions. It’s a nightmare scenario for any parent, but sadly it’s a daily reality for many queer parents. For queer couples who have their own children, a combination of heteronormative birth certificates and family law means that only one parent could have legal parenting rights over the child. The other parent could be left in the cold.
According to most state birthing records laws, only queer parents who share a biological connection with the child have a natural legal right of guardianship, even if the second parent’s name is on the birth certificate. Since even queer-friendly states like New York have not updated their laws to reflect the realities of marriage equality and the resulting parenting scenarios, many queer people face long, drawn-out adoption processes, simply to be able to enjoy the full legal rights to the child she’s cared for from birth.
Establishing queer parental rights based on existing law is tricky, because only one partner at a time can provide the biological material necessary for an artificial insemination.“You look at a guy and a girl, two heterosexual people, they have a one night stand, the girl gets pregnant. He’s the father. She goes and has the baby and whether he’s there when the baby is born or not, he’s the father,” said Lyndsey D’Archangelo, who has written about her own frustrating experience with second-parent adoption for NBC Out. “He has parental rights the minute they walk out of the hospital. Why is that situation okay but then you have a gay couple like my wife and I who went through this eight months [long] process to even get pregnant, and I’ve raised her. I took two years off to raise her and yet she was not legally my daughter until she was five years old.” Her family’s tedious fight for equal recognition under these laws highlights the flimsy way in which heterosexual parenting is privileged under existing law.
New York state law created an unneeded state of limbo for D’Archangelo’s family that lasted years. With marriage equality as the law of the land, the natural next step in queer family building is raising children, so the need for second-parent adoptions is likely to rise going forward. Birth certificate and family law has always been a matter for individual states, and even individual counties, so the result is a hodgepodge of different legal standards that depends on where you live.
D’Archangelo explained that the only way to guarantee her rights as a mother to her child against any unforeseen future possibilities was by going through the full second parent adoption process. “Across state lines, laws differ. So you can have parental rights through New York state but what happens if you take your daughter out of state or god forbid out of country? You have no legal standing.” Pursuing this legal solution meant two and half years of intense paperwork and even an in-home visit by an official government agency.
According to the National Center for Lesbian Rights, ten states forbid unmarried same sex partners from seeking second parent adoptions, while also granting immediate, rock-solid legal rights to unmarried straight parents. It’s a clear-cut example of how traditional biological definitions of cishet parentage have seeped into and become privileged under the law. When nearly every queer couple would need one, the issue of second-parent adoptions is one that disproportionately affects queer couples, as the only likely scenario for the process to be needed by straight couples is when a step-parent petitions the court for parental rights.
Creating change in this area of LGBTQ advocacy will be slow and plodding due to the local nature of existing family law. Like advocacy for birth certificate changes of gender for trans people, the only way to move the needle on this issue is by going state-by-state to change laws. This leaves gay couples in a legally tenuous position until the courts more fully establish queer parenting rights, even if both parents have their name on the birth certificate. The Human Rights Campaign has a resource to help guide queer couples through the second parent adoption process, while NCLR and GLAD Law seemingly lead the advocacy and legal fronts.
Queer writer Lindsay King-Miller and her partner were worried that Lindsay’s custody rights as the non-gestational parent could be challenged in court. “Theoretically, the birth certificate should be enough. We were married when Charlie gave birth, so I’m on the birth certificate as the mother (actually we both are — they wouldn’t list Charlie as the father unless he had an M on his driver’s license).” Lindsay said in an email. They were stuck in a similar situation as D’Archangelo, however, by virtue of living in Colorado, the King-Miller’s has a much easier time rectifying the situation than their counterparts in New York.
“We did an abbreviated thing, a post-birth parentage order. It was really simple. We filled out some paperwork and it took a few weeks to get the court order back.” While the process was relatively simple in Colorado, the whole thing costs queer families about $1500, a sum that prices many couples out of options.
Queer parents deserve the same equal protection as heterosexual parents. LGBTQ parents shouldn’t face financial or legal burdens simply to be able to claim their children as their own under the law. It’s time to move on from heteronormative definitions of biological parenting and create a space for the new reality that gay couples are having their own kids within their own relationships.
Families should be a place for love to grow and that’s not possible when a queer parent is alienated from their child. From the push to come out and show our families what our love looks like, to upending heterosexual relationship dynamics, to marriage equality — queer people have always had to fight to redefine the dynamics of family to allow the love to grow in our own lives in the face of government and religious opposition.
Queer adoption and second parent adoption reform is the next step to making our families whole and equal in our society.
