When starting a family, one of the last things you want to think about is a tragic event occurring. However, it is vital for all families with children to at the very least make sure that they have the proper precautions in place should the worst-case scenario occur.
For LBGT families, the law can be complicated, and understanding how to protect your family in the event of a spouse’s death is essential. Unfortunately, the relevant laws of North Carolina, as currently written and interpreted, would not necessarily recognize that your spouse should continue to take care of your child if they are a non-biological parent, even if their name is on the birth certificate.
Securing legal ties for children in LGBT families – What do you need to know?
North Carolina laws dealing with parentage and parental rights were enacted a very long time ago when there one dominant model of an American family (two married heterosexual parents and their genetic offspring). In North Carolina, a child born to a married couple, heterosexual or same-sex, is presumed to be the legal child of the marriage but that status is a rebuttable presumption in regards to the non-biological parent’s parental rights. Simply, being married to a birth parent does not automatically mean your parental rights will be fully respected should there come a time when they are challenged in court. There is no way to guarantee that a court will respect your parental rights unless you have an adoption or court judgment in place. Without this, you could lose any rights to your child if something happens to the biological parent or if the marriage dissolves.
For example, if the biological parent dies and you are not legally recognized as a parent, the child could be taken into foster care or moved to live with a relative instead of being able to stay with you. If you use a known sperm/egg donor, depending on your situation, the donor could be considered to be a legal mother/father unless you terminate any rights s/he may have during the adoption process. If you end up receiving certain government benefits, the government could bring a court case to make the egg/sperm donor a legal mother/father and require her/him to pay for the benefit your child receives.
Individual and joint adoption by LGBT families
Adoptions are widely recognized across all states, and this recognition is required by the Constitution. For this, and many other reasons, it is highly recommended that LGBT parents consider this route to ensure their parental rights are fully protected. If the non-biological parent has legally adopted the child, the non-biological parent’s parental rights are permanently elevated to the same level of the biological parent.
When a child is adopted, the court will issue/order an “adoption decree” or “adoption judgment” that recognizes a legal parent-child relationship. These court-ordered judgments are binding across state lines, meaning that even if the LGBT couple then moves to another state where the law is different, the judgment is protected under the U.S. Constitution’s “full faith and credit clause.” This clause ensures that states respect other states’ court judgments, therefore protecting families nationwide. If you require legal advice on how to start the process of adoption or obtaining a parentage judgment the experienced, professional lawyers at Haas Tharrington can help. Get in touch today for a confidential consultation.