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Are non-biological parents in same-gender marriage granted parental rights?

Ali Katz


Q: Are non-biological parents in a same-gender marriage automatically granted legal parental rights?

-Pondering Parent

A: Dear Pondering:

While same-gender marriage is now legal nationwide, the Supreme Court has yet to rule on the parental rights of a non-biological spouse/parent in a same-gender marriage. This means your parental rights are still governed by state laws, which vary widely.

Some states consider you a legal parent based solely on your marriage, while others do not. Indeed, you could have total parental rights in one state, but be a legal stranger to your child if you move or travel to another state.

Without parental rights, if your spouse dies or becomes incapacitated, your child could even be removed from your care and be placed with your spouse’s family members or become a ward of the state. And in an emergency, you may not be able to consent to medical treatment or even visit your child in the hospital.

To gain parental rights, many non-biological parents undergo second-parent adoption. Yet in some states, adoption agencies can legally refuse to grant adoptions to same-gender couples. Plus, adoptions are expensive and can require demeaning background checks and other invasive tests to determine your “fitness” as a parent.  

However, nearly the same parental rights available through adoption can be achieved using estate planning. From establishing legal guardianship to creating co-parenting agreements, you can attain a wide array of parental rights with an experienced lawyer’s assistance.

Contact a Personal Family Lawyer® or Family Business Lawyer® to learn about the legal protections they can help you put in place to ensure you have as many parental rights as possible.