Protecting Your Family

November 22, 2007

In my previous article, I talked about the changes to parenting brought about by the civil union bill in New Jersey. For lesbian couples, in particular, the new law is very helpful, since it means that a child born to one spouse in a civil union is presumed to be the child of the other partner. As a result, both women will be named as parents on the birth certificate at birth.

This change in the law not only affects new parents, it can also apply to co-parents with existing children. In a recent case I argued in Passaic County, the court held that both women were entitled to be named as parents on the birth certificate of a child born to one partner before they had entered into a civil union. The court held that the New Jersey Parentage Act, which provided that a "man is presumed to be the father of a child if … after the child's birth, he and the child's biological mother have married and … he has sought to have his named placed on the child's birth certificate," had to be applied equally to civil union spouses.

It's pretty clear that the civil union law protects the parent-child relationship while you are living in New Jersey. However, outside the state, all bets are off, because issues like custody, visitation, and even recognition of your status as a parent on the birth certificate are subject to laws that vary from state to state. Something as simple as a trip to Disneyworld with your children could turn into a nightmare if you are not a legally recognized parent. And a custody battle between parents could become a complex civil rights case when it involves same-sex parents.

If you are a biological parent — that is, you are the biological father or birth mother of a child, you are generally recognized as a legal parent in all fifty states, unless a court has terminated your parental rights. If you are that parent's same-sex civil union spouse, however, you are considered unrelated to your spouse's child in many states, and therefore the parental rights you may have acquired in New Jersey would be unrecognized in many of these states. The only way to ensure recognition as a parent outside New Jersey is to obtain a formal judgment of your parental rights in a New Jersey court. Such formal recognition may be obtained in one of two ways: either through a judgment of parentage or a judgment of adoption.

The reason for this has to do with the full faith and credit clause of the United States Constitution. This clause requires that each state has a duty to respect and enforce the rulings of courts in other states. Judgments of parentage and judgments of adoption are among the kinds of judgments that are entitled to full faith and credit. So long as the judgments doesn't give another state's court reason to question the policy behind the judgment, most states will respect the judgment of a court in another state.

In prior years, adoption has been the most common way of securing the parent-child relationship, and is still the only way to do so if you are a stepparent or co-parent. A judgment of adoption, and the resulting amended birth certificate listing both parents, is likely to be given full faith and credit in most states and countries, even if the same-sex couple would be unable to adopt in that jurisdiction. However, adoption can be a lengthy, expensive, and emotionally invasive process. Furthermore, there have been attempts in some states (for example, Oklahoma) to prohibit recognition of adoptions by same-sex couples.

Second-parent adoption is the most common way of establishing a same-sex partner's parental rights. It is a creation of the courts, which applied the same procedures used in stepparent adoption to same-sex partners who were, at the time, unable to marry. Normally a judgment of adoption terminates all parental rights. Stepparent adoption is an exception to this rule, created to allow a spouse to adopt. That exception has been extended to same-sex couples in many states, including New Jersey.

However, adoption is not the only way in which you can obtain a formal judgment of parental rights. An alternative procedure, and one which I now recommend for couples who are in a civil union (or contemplating it), is to obtain a formal judgment of parentage. Such a judgment of parentage is as likely to be recognized outside New Jersey as an adoption, and is considerably less expensive to obtain. Unlike an adoption, a judgment of parentage does not require a background check, fingerprinting and home study. It is not an option where the relationship is one of stepparent-stepchild, such as where a spouse has children from a prior marriage or relationship.

In either case, you owe it to your children and to your partner to legally ensure that your rights as a parent are secure inside and outside New Jersey. Although the extra step and extra cost of a formal adoption or judgment of parentage is something that opposite-sex married couples may never have to undergo, it is imperative for responsible same-sex parents. Fortunately, the extra cost is reduced by the adoption credit, which allows you to reduce the taxes you owe by over $11,000 per child.

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