It’s no secret that laws are biased against folks who don’t fit the cultural majority – whether you’re LGBTQ, a person of color, female, or differently-abled, you have probably experienced this bias at one point or another.
In Colorado, family laws favor those in heterosexual relationships. For example, a couple who both identify as female may choose one person to carry and birth the child. When the child is born that mother automatically has a legal relationship to her child. But what about the other mother? And why does it matter? Here are some things you need to know about parental rights for non-biological parents in same-sex couples.
Why does it matter?
The issue of parents’ legal status is not typically questioned in normal day- to- day life. The main situations where a parent’s legal status would be raised would be (1) if the parents were to separate or get divorced or (2) if the other parent were to die before the child turned 18. In both situations, the court would need to determine who has parental responsibilities for the child, including decision-making authority and parenting time (custody).
When two parents get divorced, they must decide how to co-parent their child – either by agreement or through a court hearing (trial). In that situation, the biological mother could theoretically call into question the other mother’s legal status and therefore her rights to the child.
This would also come into play if one mother were to die while the child was still underage, the other mother would assume full parental responsibilities. However, other people, such as the birth mother’s parents, could try to gain parental responsibilities for the child through the court process and could challenge the non-biological mothers legal status.
If you are a parent or soon-to-be parent who is concerned about your rights, here are some things you can do.
- Make Sure You’re on the Birth Certificate!
If you are a non-biological parent, you can get on your child’s birth certificate in a couple of ways. The first and easiest way is to fill out a Voluntary Acknowledgement of Parentage form in the hospital when your child is born. This form establishes a legal presumption of parentage in Colorado and is enforceable in every state. The second way is to complete a second-parent adoption. This is a simplified adoption process that allows a parent who may have come into the child’s life after birth to establish a legal relationship to the child and be added to their birth certificate.
- Make a Marital or Cohabitation Agreement
Marital agreements (also known as post-nuptual agreements) are agreements you can make with your spouse about what would happen if you get divorced or if one spouse dies. Cohabitation agreements are basically the same thing but for folks who are not married. While these agreements typically apply to financial assets and debts, you could also make an agreement recognizing each other as your child’s parents. And, while you’re at it, you may as well do some financial and practical planning that will benefit your family. *Note that you cannot make an agreement about child support or custody.
- Make a Will
You probably think about wills as a way to let your family and friends know who you want to get your stuff when you die. But if you have children, you can also set up a guardianship provision for your child or children. Same-sex couples can use this to make clear that the other parent should be the child or children’s legal guardian. Bonus because it’s always a good idea to have a will – especially if you have a nontraditional family.
A Note to LGBTQ Families
With everything going on in politics these days, those of us in groups that have historically been oppressed feel especially vulnerable.
Nobody can change the fact that family is family – whether you are bonded by blood or by love.
Consider these legal planning tools to protect your family. If you live in Colorado, book a free 20-minute consultation with me to discuss protecting your parental rights.
*Disclaimer: This article is for informational purposes only and is not legal advice.