As LGBTQ+ families have become more common and more visible, state laws have struggled to catch up. Confusing, complex, and outdated statutes have caused challenges for many queer people who just want to be legally recognized as parents to their own children.
It may not be fair, but it is nonetheless crucial for queer parents to take extra steps to ensure they are legally bound to their children. The best way to do so, however, could vary by state.
Biden said that the LGBTQ+ movement “has grown stronger, more vibrant, and more inclusive with every passing year.”
In a first-of-its-kind report, the Movement Advancement Project (MAP) has teamed up with four LGBTQ+ advocacy groups to outline LGBTQ+ parentage laws across the United States.
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Why parentage matters
With help from Family Equality, the National Center for Lesbian Rights (NCLR), Colage, and GLBTQ Legal Advocates and Defenders, the report explains that of the more than 18 million LGBTQ+ adults living in the United States, almost a third of them are raising minor children.
It calls for states to make it easier for LGBTQ+ parents to gain legal custody of their kids and emphasizes why this is so important: “At the core of maintaining the connection between a parent and a child is a legal child-parent relationship, called ‘parentage”‘… [which] is central to ensuring that children have access to numerous protections.”
Parentage, the report says, is crucial to a child’s social and emotional development, as it helps them feel safe and secure in their relationship with their parents.
“Secure attachment of children to their caregivers is core to physical, neurological, and cognitive development. Abrupt separation from a parent—the disruption of a secure attachment—is damaging for a child.”
The report also explains that parentage impacts everything a parent can do for their child, from day-to-day tasks like daycare pickups to bigger moments like emergency health care and inheritance rights.
Know your options… and don’t wait
The report noted that in many states, it is often costly, time-consuming, and complicated for two LGBTQ+ parents – especially those who used assisted reproduction – to both gain legal guardianship over their children.
Shelbi Day, Chief Policy Officer for Family Equality, told LGBTQ Nation that it is crucial that parents and prospective parents are informed about the steps they should take to protect their families.
“Parents and those hoping to become parents should be proactive in knowing what their options are,” Day said, “and take steps to make sure that their parent-child relationship is recognized and legally protected. Doing so is the best way to protect our children, as this ensures that their child will have access to legal protections and important rights and benefits regardless of what the future may hold.”
The report says there are several pathways to legal parenthood, but Day said the “safest” way is through obtaining a court order, meaning an adoption or parentage judgment.
“These orders must be honored (given full faith and credit) in all 50 states, and that will remain true regardless of what the future holds,” Day said.
But not all options are available to everyone in every state. For example, while married couples in every state can obtain an adoption judgment through the stepparent adoption process, only 20 states and D.C. allow co-parent/second-parent adoptions for unmarried couples.
As the report explains, “These types of adoptions can be used to establish a legal relationship between a parent and a child OR to obtain an adoption decree for someone who is already a legal parent through another pathway to parentage, such as the marital presumption.”
Additionally, 11 states have expanded the availability of Voluntary Acknowledgment of Parentage to both LGBTQ+ and non-genetic parents. This means the parent can sign a form at the hospital for no cost declaring themselves a legal parent. After 60 days, it takes effect and is as solid as a court decree. Federal law says these must apply across state lines as well.
Double your protection
All 50 states do extend the marital presumption of parentage to same-sex couples, meaning if a child is born to a married couple, they are both presumed the legal parents. The Supreme Court has ruled that even states with heteronormative terminology in their laws (like “husband” and “wife”) must grant this right to LGBTQ+ couples.
Nevertheless, Day emphasized that even married LGBTQ+ couples cannot rely on the marital presumption and should take further steps to protect themselves.
She said that the presumption can be challenged in some states and that Family Equality “strongly suggests that parents take additional steps to establish legal parentage to ensure that children have legal stability and access to all of the rights and benefits of legal parentage no matter where people travel and no matter what happens between the parents in the future.”
This is also true even if both parents are on a child’s birth certificate.
“A birth certificate itself does not establish a legal parent-child relationship,” Day said. “While it is very helpful in navigating day-to-day life, it reflects a legal presumption that in some circumstances can be challenged. In other words, there is considerable vulnerability in relying solely on a legal presumption.”
Day repeatedly emphasized the increased importance of LGBTQ+ parents taking every possible step to establish parentage due to today’s hostile climate.
“This legislative session alone, we have seen over 500 anti-LGBTQ bills targeting and attacking all aspects of our lives,” Day said. “Thankfully, due to the tireless work of advocates and allies – especially those on the ground in the states, many of these bills will not pass. However, some have passed and their existence highlights the continued effort to force LGBTQ+ people back into the closet and to erase our existence. In this climate, LGBTQ+ parents and prospective parents need to do everything in their power to protect their children and their families.”
What comes next
The report provides important information to LGBTQ+ parents, but it is also a call to action for state governments.
“What’s needed are clear, equitable legal protections for all children and families, regardless of biology or marital status,” it states.
It called for greater consistency between states; more simple, streamlined, and affordable processes; an increase in the availability of Voluntary Acknowledgments of Parentage; and clear pathways to parentage for parents who use assisted reproduction and surrogacy.
MAP touted the Uniform Law Commission, a bipartisan group of experts that has established the Uniform Parentage Act, a model from which states can craft their parentage laws. The report called the most updated version from 2017 “the most comprehensive model for ensuring all children can have an equitable path to parentage and reflects how families – including LGBTQ families – are formed today.”
Day said that the organizations behind the report, as well as other experts and stakeholders, have been lobbying lawmakers to protect LGBTQ+ families.
“We are advocating to remove legal and economic barriers, allowing individuals and couples to create and expand their family in whatever way makes the most sense for them – be it assisted reproduction, surrogacy, adoption, or foster care. And, we are working to ensure that all families – regardless of the circumstance of a child’s birth or the sexual orientation, gender identity, or marital status of their parents – have avenues for establishing legal parentage.”
“As most family law is left to the individual states, much of this work happens state-by-state. However, we are engaged in national efforts as well, particularly in a post-Dobbs world where reproductive autonomy is under attack. To this end, we are actively engaged in efforts to protect all people’s access to assisted reproduction, fertility care, reproductive choice, and other pathways to parenting, such as adoption and foster care.”
And as anti-LGBTQ+ vitriol continues to rise, Day said one of the best ways to fight back is by sharing our stories.
“Especially the simple joys of parenting and being a family – help others understand our families and our need and desire to protect our children by ensuring that we have equitable avenues to find, form, and protect our families.”
Editor’s Note: This story has been updated to clarify that married couples in every state have access to stepparent adoptions, but only 20 states and DC allow unmarried couples access to co-parent/second-parent adoptions