Law Column: Do Married Same-Sex Couples Need Adoption?
(Lisa Schmidt, Lisa Schmidt Law, Jan 15, 2016)
The case is over! Marriage Equality advocates won! But that doesn’t mean that LGBT couples don’t still need to protect themselves and their families. If you are a gay or lesbian couple in Michigan you may still need an adoption.
Earlier this month, April and Jayne DeBoer-Rowse, the brave Michigan couple who took their case all the way to the Supreme Court finally got their wish: they were both declared the parents of their three children. “Wait,” you might say, “Didn’t that happen in June when the Supreme Court ruled they had to be allowed to get married?” No. The Obergefell decision opened the door, but LGBT couples in Michigan still need to walk through it by legally marrying and performing second parent adoptions (also called step-parent adoptions) before their families will be fully protected.
Married, But Not Parents
Here’s the problem. Before the Supreme Court decision, the DeBoer-Rowse couple adopted four children before they were allowed to get married. Technically, April had adopted two and Jayne had adopted the other two. In fact, the whole case got started when the couple sought a second-parent adoption to legally recognize each mother’s parental rights to all four children. But the trial court said it wasn’t a matter of Michigan’s adoption law being discriminatory. It was a problem with the state’s marriage law. So DeBoer v. Snyder became one of the many lawsuits across the country challenging gay marriage bans and asserting LGBT couples’ right to get married.
And they won. On Saturday, August 22, 2015, April DeBoer and Jayne Rowse got married. But that made them step-mothers to each other’s children. Legally they were still little better than strangers. If something had happened to one of them, the family could still be torn apart. They still needed the second-parent adoption that started the whole process. That didn’t happen until November 5, 2015, when Judge Friedman (the trial court judge who originally ruled in their favor) granted each mother second-parent adoptions of the other’s children and granted the now-married couple’s joint adoption of a fifth child.
Necessary Legal Hurdles
It may seem like a lot of hurdles to jump over, this is the process that every LGBT couple in Michigan who have children need to follow. First, they must be legally married. Then, if the children were conceived and born before the marriage, they need to petition the court where they live to grant a step-parent adoption. Without this two-step process, the parent who is not biologically related to the child will be out of luck in any custody challenge or guardianship situation down the road.
Children Born During the Marriage
Now that same-sex marriage is legal here in Michigan, this process will begin to change. Children who are conceived or born during a marriage are assumed to be a product of that marriage. That means the mother’s spouse is assumed to be the parent of the child. For lesbian couples having children today, that means a marriage certificate can go a long way to protecting parental rights.
But it may not go far enough. If the couple used a friend, family member, or other “known donor” to contribute genetic material, that person could potentially challenge the non-biological mother’s rights under the Revocation of Paternity Act. Because the non-carrying mother is not genetically related to the child, there could be cases where that donor could assert parental rights to the child and disrupt the LGBT family.
To prevent this, anyone using a known donor should sign a known donor agreement that explicitly waives the donor’s right to file for custody, child support, or parenting time, or to establish paternity. There are some limitations on waiving a custodial parent’s right to child support. However, without that agreement, an LGBT couple is relying on the good will of the donor to keep their family together.
Don’t take a chance with your family. Use a known donor agreement and a formal second parent adoption to make sure your children are legally related to both parents. It may seem difficult going in, but it could save your family a lot of heartache later on.
Lisa J. Schmidt is a family lawyer at Schmidt Law Services, PLLC, in Ferndale, Michigan. She focuses on LGBT family issues and non-traditional family solutions. If you need a known donor contract or are ready to file a second parent adoption, contact Schmidt Law Services today for a free consultation.