Marriage is about love and commitment, but it also comes with a slew of rights, responsibilities, and privileges, including inheritance rights, immigration benefits, and tax and property options, just to name a few. In fact, in analyzing the so-called Defense of Marriage Act (done away with by the successful U.S. v. Windsor case in the United States Supreme Court), the United States Government Accountability Office identified more than 1,000 federal benefits that hinged on marital status. Many more exist by state law.
Opponents of marriage equality, having lost in the Supreme Court, are now attacking the myriad of rights and responsibilities connected to marriage. They argue that that the right to marriage does not automatically mean that same-sex couples have a right to the benefits historically conferred by marriage—that, somehow, marriage and the rights associated with it can be divided. Not surprising, parentage is a favorite subject for these hostile arguments.
Perhaps one of the most important rights associated with marriage for family planning purposes is what is known as the “marital presumption,” a concept embraced by state laws nationwide that says that a woman’s husband is presumed to be the legal parent of any child born or conceived during their marriage.
What does the marital presumption mean for same-sex couples? In theory, the presumption should be applied equally, no matter the gender of the spouses involved. Some courts have reached that conclusion, meaning that when a woman gives birth, her wife is automatically presumed to be the legal parent of the child by virtue of the marriage. However, this is a presumption only, which courts allow to be rebutted.
Opponents are working hard to sever the marriage from the marital presumption. Foes of LGBTQ equality are going to court arguing that rights of marriage, including the marital presumption, should not automatically given to same-sex couples. Some courts across the country have agreed, casting doubt on a non-birth parent’s right her child.
We predict that as a patchwork emerges regarding the marital presumption across the country, this issue will eventually need to be addressed by the Supreme Court. Until then, we advise all of our clients to continue doing second parent adoptions. Legal rights to a child are too important to gamble with, no matter how hurtful and inequitable this reality is.
Before marriage equality, second parent adoptions, to ensure that the non-birth mother had equal rights to the child, were standard practice for lesbian couples having a baby. Now, some people question whether doing a second parent adoption, given the marital presumption, is still necessary. The answer is, absolutely, YES!
It is settled law that an adoption order must be recognized by other states, so second parent adoptions are the best way to guarantee parent-child relationships are protected in any scenario—a health crisis, divorce, or social security, for example. With an adoption order, no matter what state you are in, or how the court in that jurisdiction has ruled on marital rights and benefits, you and your child are protected.
Recently, Rebekah was in court for the second parent adoption hearing of clients, a married lesbian couple. The judge paused to reflect and then commented to my clients, “You shouldn’t have to do this, but you’re doing the right thing. If I were you, I’d do the same thing because it’s the best way you can safeguard your family.”
Rebekah DeHaven is an associate attorney at Zavos Juncker Law Group, PLLC. Michele Zavos is the managing partner and founder of Zavos Juncker Law Group, PLLC.