With the Supreme Court legalizing same-sex marriage and ruling that same-sex marriages must be treated as fully equivalent to opposite-sex ones, you might assume that LGBTQ+ parents would have all the same rights that heterosexual ones have.
Ultimately, the courts may yet determine that they do. However, there are currently some key differences in how same-sex and opposite-sex parents are treated. This is primarily because one member of a same-sex relationship is generally not genetically related to the child.
When an unmarried heterosexual couple has a child, it typically takes little more than an acknowledgement of paternity for the courts to recognize the identity of the father. Some unmarried same-sex couples have found that acknowledging parenthood doesn’t work the same way for them. Instead, many find that only one member of the couple (the biological relative of the child) is considered a parent. The other member must therefore adopt the child in order to be considered a legal parent.
Another situation where the rights of a same-sex couple can differ from those of a heterosexual couple is when a donor parent makes a parentage claim. For example, an egg or sperm donor might ask for parenting rights. This can lead to one of the members of the same-sex couple being declared not a parent.
What about the ‘marital presumption’?
When a heterosexual couple is married, the law assumes that all children born during the duration of the marriage are children of both members of the couple. No paternity tests are required to prove parenthood in a marriage relationship, although they can be used to prove the husband is not the father of a particular child.
In 2017, the U.S. Supreme Court ruled that the marital presumption applies to same-sex couples. In other words, any children born during the marriage are legally considered the children of both members of the couple.
Unfortunately, the marital presumption is not proof of parentage, but merely a legal presumption. If one member of the couple is more closely related to the child biologically, there is a risk that that person may be considered the “real” parent upon divorce.
It’s also important to understand that the marriage presumption doesn’t apply to unmarried LGBTQ+ couples, and that adoption is not always an option for such couples.
Where adoption is available, such as in Illinois, an adoption meant to confirm your parental rights may be a good investment.
If you are concerned that your parental rights to your child are not fully established in law, talk to an attorney experienced in LGBTQ+ family law for assistance.