WHAT HAPPENS if you’re part of a same-sex couple and you have a child—but you aren’t the adopting or biological parent? Even though same-sex marriage is now legal in all 50 states, parental rights are likely to remain a tricky issue, so be sure to seek advice from a qualified attorney.
Apply for a second-parent adoption. If you aren’t the adopting or biological parent, you may not have any rights if you get divorced or were never married, the other spouse dies or you simply want to visit your child in hospital. As a precaution, you might establish your rights by applying for a second-parent adoption.
Draw up a custody agreement. If a second-parent adoption isn’t an option in your state, consult a lawyer who specializes in same-sex couples. The lawyer might suggest steps to secure your child-custody rights in case, say, you get divorced or your child is hospitalized and the staff prevent you from visiting.
For instance, you might draw up a co-parenting or similar agreement. A co-parenting agreement is a declaration that you both consider yourselves parents of the child. While courts don’t necessarily have to respect such agreements, they should help, as should any evidence that the nonadopting or nonbiological parent has behaved as though he or she is a parent to the child.
Name the other parent as guardian. Your lawyer might also suggest that the biological or adopting parent name the other parent as legal guardian in his or her will. This should secure the rights of the parent in the event the other dies prematurely.
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