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Monday, January 11, 2016

Co-Parent Adoption - Who is a Legal Parent? Part 6

Guest Post by Joyce Kauffman and Patience Crozier both of Kauffman Crozier LLP.  In addition to an extensive divorce and traditional family law practice, Joyce's practice focuses on issues impacting the LGBTQ community.  Patience is a principal of Kauffman Crozier LLP who focuses on all areas of family law, particularly adoption, divorce, dissolution, prenuptial agreements, domestic partnership agreements, assisted reproductive technology, paternity and guardianship.

Co-Parent Adoption

In 1993, the SJC determined that same-sex couples can jointly adopt children in Massachusetts.  Adoption of Tammy.  Since then, thousands of children have been adopted by the adults raising them and enjoy the security that legal parentage brings.  Ten years after Tammy, in another groundbreaking decision, the SJC determined that same-sex couples have the right to marry in Massachusetts. Goodridge.  When married same-sex couples give birth to their children, Massachusetts will recognize both spouses as legal parents because there is a legal presumption that a woman who gives birth and her spouse are the legal parents.  There is also a statute, G.L. c. 46, §4B, that states “any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”  The SJC determined that G.L. c. 46, §4B applies to same-sex couples in Hunter v. Rose, but Probate and Family Courts around the Commonwealth still applied the statute inconsistently in the adoption context.  In early May, the SJC clarified that, for a child born into a same-sex marriage through assisted reproduction, the child’s lawful parents are the mother and her wife; a donor, whether known or anonymous, is not a lawful parent under this statute and therefore, not entitled to notice of any subsequent adoption.  Adoption of a Minor.  

Whether married or unmarried, same-sex couples should adopt their children to ensure that their relationships as parents are legally recognized universally. For unmarried same-sex couples, this is essential – an adoption is the only way to preserve the primacy of both intended parents and to terminate the parental rights of any other individual (such as a known donor).  The non-biological parent of a child born to an unmarried couple will have NO legal parental rights to the child unless there is an adoption.  The lack of a legal relationship can give rise to serious problems for the child down the road: if the couple ends their adult relationship, the child could lose the parental relationship with the non-biological child; the child’s medical care could be compromised if the non-biological parent is not allowed access; the child could be deprived of social security and other benefits of inheritance if the non-biological parent were to die; and, if the biological parent dies, family members could try to prevent the non-biological parent from continuing the relationship. 

Although married same-sex couples may not feel the same urgency to adopt if their children are born into the marriage, adoption remains critical.  If you had children before you were married, getting married does not create a legal relationship with a non-biological (or non-adoptive) parent.  And, although the Supreme Court has authorized same-sex marriage throughout the United States, there remains a great deal of concern that not all jurisdictions will respect the presumption of parentage we enjoy in Massachusetts.  If you travel or move outside of Massachusetts to a more hostile state or country, your relationship to your children may very well be challenged.

If you do not have a legal relationship to your child or the legal relationship you have is not respected, you will be unable to act on the child’s behalf and, if your adult relationship ends when you are residing in a hostile state, you may face a custody battle in which the biological parent challenges your relationship with the child.  Adoption is the only way to ensure that your child’s legal parentage is secure and unassailable.

Adoption of a Minor, in a unanimous decision, provided a victory for all Massachusetts families.  The SJC provides an analysis of assisted reproduction and parentage in the marital context that will ensure uniformity in our courts and greater stability for children, and confirms that married couples using a known donor and ART do not need to provide notice to a donor – known or unknown – of a subsequent adoption.  In so doing, the SJC has made the adoption process for same-sex married couples clearer and more streamlined, and has secured the parentage of all children born into a marriage through assisted reproduction.  There is a great diversity of families in the Commonwealth, and we are lucky that our SJC recognizes and protects that diversity. 
    
© Kauffman Crozier LLP

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