chevron-down Created with Sketch Beta.
July 19, 2023 Feature

Non-Biological Parenting Rights

Valerie L. Moore

A Brief Timeline

  • 1973 Uniform Parentage Act of 1973
  • 1979 first adoption by a gay couple in the country (California)
  • 1996 Defense of Marriage Act (DOMA)
  • 1997 Hawaii first state to provide a classification of Domestic Partnership
  • 2002 Uniform Parentage Act of 2002
  • 2004 Massachusetts first state to legalize marriage of same-sex partners
  • 2013 Obergefell v. Hodges—DOMA ruled unconstitutional
  • 2017 Paven v. Smith—married same-sex partners have the right to have both names on the child’s birth certificate
  • 2017 Uniform Parentage Act of 2017

Same-sex couples had been making lives together for years: cohabitating, owning property, having and raising children, dying, and, of course, breaking up. Family law attorneys excelled at the creative drafting of “partnership agreements,” “co-parenting agreements” and “co-habitation agreements” to end-run the marriage laws and opt-in to general contract law. Obergefell v. Hodges, 576 U.S. 644, 680–681, 135 S. Ct. 2584 (2015), and the recognition that marriage was a fundamental right for all individuals regardless of their sexual orientation, opened the contract of marriage to same-sex families.

Following the rulings in Obergerfell and Pavan v. Smith, 137 S. Ct. 2075, 2078–79 (2017), there was a recognition that the Uniform Parentage Act (UPA) was not keeping step with family dynamics, and a much-needed update to the original UPA of 1973 (revised in 2002) commenced. The purpose of the revision was to adjust language in parenting statutes—recognizing that the family unit could include different permutations than just a father and a mother. In 2012 the U.S. Census Bureau reported approximately 639,440 cohabiting same-sex couples in the United States. In 2020, seven years after the ruling in Obergefell v. Hodges, the U.S. Census Bureau reported that there were 568,110 married same-sex couples in the country as well as 412,166 cohabiting same-sex couples. As these couples are raising families together, a change in the UPA was necessary to protect the rights of children and of their parents.

5 Major Changes with Uniform Parentage Act (2017)

  1. Implementation of gender-neutral language throughout the UPA. Previous versions of the UPA included gendered terms (“father” and “mother”) as the Act assumed all families involved one man and one woman.
  2. The UPA 2017 Section 610 includes the ability for a same-sex partner to acknowledge paternity at the time of birth (similar to that of a heterosexual partner). The comment on the Acknowledgement of Parentage (Section 301) clarifies the importance of this change to “further the goal of ensuring that the act applies equally to children born to same-sex couples, but it also furthers the goal of establishing parentage quickly and with certainty.”
  3. The UPA 2017 Section 609 provides a means for a de facto parent to establish legal parentage through his/her/their actions and history of parenting to ensure that a child’s rights and relationships are protected.
  4. The UPA 2017 Section 614 includes a provision that precludes a perpetrator of sexual assault that resulted in the conception of the child from establishing parental rights. This does not apply if parentage was already established or if the perpetrator already has established a relationship with the child.
  5. Article 8 of the UPA 2017 includes language regarding surrogacy including language referencing gestational surrogacy. Only two previous states adopted any of the UPA language regarding surrogacy under previous version of the UPA, and the hope was this language would.

Currently, only seven states have passed the UPA 2017. That means that most states are still operating under older laws that may or may not provide any guidance for same-sex couples. As such, best practices for an attorney trying to secure rights for same-sex couples would be to create layers of protections for their family. Multiple layers show the intent of the parties and provide another option should one layer fail when laws change. The layers establish parentage and provide for the legal creation of a family and all of the financial and emotional responsibilities that go with a family.

Layers of Protection Attorneys Can Use to Assist Their Clients

  1. Marriage. The legal contract of marriage allows for partners to opt in to most domestic laws, providing a framework to establish custody and support orders. In most states, a child born during a marriage is presumed to be a child of the marriage, making it easier to establish parentage of non-biological children born during a marriage. The other advantage to marriage is that should the family unit fail, the couple is treated the same as any other couple and the court has the authority to order support and parenting time in the best interests of the parties’ children.
  2. Co-parenting Agreements. While states vary in the validity of contracts regarding children, if nothing else, the contract/agreement would show the couple’s intent to co-parent the children. Any co-parenting agreement should include a “waiver of parental preference” so that the non-biological parent can argue that the biological parent knowingly shared their fundamental right to make decisions about the care, custody, and control of the child (see Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). As parentage is a financial as well as emotional status, best practices would be to include some language regarding both parties’ financial responsibility to the child and a desire to share parenting time in some fashion should the parent’s relationship status change.
  3. Parentage Action. Even if a presumption of parentage exists, filing a parentage action and affirmatively declaring the non-biological parent as the legal parent of the children adds another layer of protection. While the ways a parent can be a presumptive parent range greatly from state to state, in states that have adopted some form of the UPA, a person can establish a presumption of parentage if (1) they are biologically related to a child, (2) they are married to (or attempted to marry) the child’s mother/other parent, (3) they are on the birth certificate with the mother/other parent’s permission, (4) they notoriously or in writing recognized parentage of the child, (5) they signed an acknowledgement of parentage, or (6) they have a duty to support the child under and order of support. If one of those items is true, a parentage action can affirmatory establish parentage rights.
  4. Adoptions: If permitted in your jurisdiction, a second parent adoption would allow the non-biological parent to adopt the child with the biological parent, thereby securing both parents rights and responsibilities to the child. Additionally, a stepparent adoption may accomplish the same goals for the family if the parents are married to one another. The advantage of an adoption is that it survives the parties’ relationship and ensures that the parental relationship remains intact regardless of the parents’ relationship with one another.

Until such time as a framework exists in all 50 states regarding the establishment of parental rights, attorneys will need to continue to be creative in securing their clients’ parental rights.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Valerie L. Moore

The Law Offices of Vinton and Moore Attorneys at Law, LLC

Valerie L. Moore is an attorney with The Law Offices of Vinton and Moore Attorneys at Law, LLC in Lenexa, Kansas. She has more than 20 years working in the field of family law, helping families care for themselves, their children, and their elders with a wide range of legal services.