Parent-Child Relationships

En Español

Now that marriage is recognized everywhere, is getting married enough to protect our parental rights?

If one of us gave birth to our child after we got married, are we both recognized as parents? Do we still need to get an adoption or take some other action to protect our rights?

If we are married, can we both be on our child’s birth certificate if one of us gives birth? If we are both on our child’s birth certificate, does that mean we are both parents under the law?

One of us gave birth to our child but we weren’t married when our child was born. If we get married now, does that protect our parental rights?

One of us adopted our child as a single parent because our state did not allow same-sex couples to adopt jointly. If we’re married, can we now both be legally recognized as parents?

We would like to jointly adopt or foster a child but our state has not permitted same-sex couples to do so. If we’re married, can we now jointly adopt or foster a child?

What if one of us is transgender and we are considered a different-sex married couple? Do we still need to get an adoption or take some other action to protect our parental rights?

What if we are married and have a child through surrogacy? Will we both be recognized as the legal parents of our child?

We had a child using ovum sharing where we used an egg from one of us and the other carried our baby. Are we both recognized as parents?

If we have children together and are not married, do we have to get married to make sure both of us are recognized as parents under the law?

Q. Now that marriage is recognized everywhere, is getting married enough to protect our parental rights?

A. We strongly recommend that every parent who is not a biological parent—married or not—get an adoption or, if possible, a court judgment of parentage. Depending on your specific circumstances and where you live, marriage alone may not prevent a challenge to your parental rights if you are not a biological or adoptive parent whether you are a same-sex or a different-sex couple. Not all states fully respect non-biological parents, even when they are married, regardless of what the law requires. In addition, even if your parental rights are respected in the state where you live based on your marriage, you may be vulnerable when you travel or if you move to another state.

An adoption or other court judgment of parentage is the surest way to make certain that you will be respected as a parent in every state, no matter where you travel or move. If you have an adoption or court judgment of parentage, every state should recognize it. Marriage equality is a major step forward for recognizing and protecting our families. But at this time, marriage equality alone will not fully protect all LGBT parents. We are working across the country to make sure that states respect all families.  However, until we achieve full equality for all families, an adoption or court judgment is the only way to ensure that non-biological parents will be respected as legal parents in all fifty states.

Contact one of our organizations if:

  • You have questions about protecting your parental rights
  • You are having trouble getting a stepparent or second parent adoption or court judgment of parentage
  • Your parental rights are being challenged

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Q. If one of us gave birth to our child after we got married, are we both recognized as parents? Do we still need to get an adoption or take some other action to protect our rights?

A. The fact that a couple was married when their child was born does not necessarily mean that a non-biological, non-adoptive parent will be respected as a parent, regardless of what the law requires.

In all states, the law presumes that the spouse of a person who gives birth is a parent of the child.   However, depending on your circumstances and where you live, some states and courts may not respect you as a legal parent based only on your marriage. Also, even though these laws should apply equally to same-sex spouses, some families may experience discrimination and difficulty getting these protections, at least at first.

Some states also have laws that say that when a married person gives birth to a child conceived through donor insemination, the person’s spouse is automatically a legally recognized parent, in some circumstances. These laws vary state by state. In some states, you have to use a doctor or sign a form. If you didn’t follow your state’s law exactly, you may not be recognized as a parent under the law. Also, even though these laws should apply equally to same-sex spouses, some families may experience discrimination and difficulty getting these protections, at least at first. Not all states have these laws. But if there is no donor insemination law that protects you, you may still be protected by other laws protecting married parents.

No matter how your child comes into your family, however, there is a possibility that some states may not respect you as a parent if you are not a biological or adoptive parent. Even if you live in a state that respects you as a parent under its laws based on your marriage, you may not be protected if you travel or move to other states.

For these reasons, you should not rely only on the fact that you are married to protect your relationship to your child. We strongly recommend that every parent who is not a biological parent—married or not—get an adoption or, if possible, a court judgment of parentage. Contact one of our organizations for more information about whether your parental rights are protected.
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Q. If we are married, can we both be on our child’s birth certificate if one of us gives birth? If we are both on our child’s birth certificate, does that mean we are both parents under the law?

A. Every state requires that when a married person gives birth, the department of vital records (or similar government agency) must list the person’s spouse as a parent on the child’s birth certificate. These laws should apply equally to spouses of any gender, although it may take some time before all states start doing this for our families. Contact one of our organizations if you had a child after marrying and are having trouble getting a birth certificate for your child naming both of you as parents.

Being on your child’s birth certificate does not make you a parent under the law. If you are not respected as a parent under the laws of your state, the fact that your name is on your child’s birth certificate will not establish a legal tie between you and your child.

Even if you are on your child’s birth certificate, we still strongly recommend that you get an adoption or, if possible, a court judgment of parentage. This is needed even if you are respected as a parent in your home state based on your marriage because this is the surest way to make certain that you will be respected as a parent in every state. Contact one of our organizations for more information about whether your parental rights are protected.
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Q. One of us gave birth to our child but we weren’t married when our child was born. If we get married now, does that protect our parental rights?

A. In many states, you have to be married at the time your child is born (and sometimes at the time your child is conceived) to get any protections if you are a not a biological or adoptive parent. Some state laws protect unmarried non-biological, non-adoptive parents in certain situations, but many do not. If you are a non-biological parent and you were not married at the time your child was conceived and/or born, it is especially important that you get an adoption or, if possible, a court judgment of parentage. Contact one of our organizations for more information about whether your parental rights are protected.
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Q. One of us adopted our child as a single parent because our state did not allow same-sex couples to adopt jointly. If we’re married, can we now both be legally recognized as parents?

A. Yes, if you get an adoption. If you’re married and one of you is the child’s only legal parent, the other parent should now be able to get a stepparent adoption if you meet your state’s other requirements for stepparent adoption. This may include passing a safety screening and home study, and may require that you be married for a certain period of time. Contact one of our organizations if you are having trouble getting a stepparent adoption.
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Q. We would like to jointly adopt or foster a child but our state has not permitted same-sex couples to do so. If we’re married, can we now jointly adopt or foster a child?

A. Yes, you should be able to. If you’re married you may jointly adopt or foster a child if you meet the requirements applied to all married couples. Contact one of our organizations if you are facing barriers to jointly adopting or fostering because you are LGBT.
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Q. What if one of us is transgender and we are considered a different-sex married couple? Do we still need to get an adoption or take some other action to protect our parental rights?

A. Even if a transgender spouse has legal documentation of their gender, if they are not a biological parent, being married may not be enough to protect their parental rights. We therefore strongly recommend that every non-biological parent get an adoption or court judgment of parentage to protect their parental rights.  Additional information for transgender parents can be found here: http://bit.ly/1Kxy4wjContact one of our organizations for more information about whether your parental rights are protected.
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Q. What if we are married and have a child through surrogacy? Will we both be recognized as the legal parents of our child?

A. The laws about surrogacy and gestational carriers are different in every state. Not all states allow surrogacy. In some states it is illegal. In states that permit surrogacy, there are steps that must be taken for the intended parents to be recognized. We strongly recommend consulting with an attorney who is experienced with surrogacy for information about this process.
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Q. We had a child using ovum sharing where we used an egg from one of us and the other carried our baby. Are we both recognized as parents?

A. We believe that both of you should be able to be recognized as parents regardless of whether you are married. However, most states do not have specific laws addressing families in this situation, so we recommend that you get a court judgment recognizing that both of you are parents to make sure that you are protected.
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Q. If we have children together and are not married, do we have to get married to make sure both of us are recognized as parents under the law?

A. It depends on your situation and where you live. If you were able to jointly adopt a child or obtain a second parent adoption for a non-biological parent, your status as a legal parent should be secure whether or not you choose to marry.

Also, some states protect unmarried parents who are not biological or adoptive parents under certain circumstances. For example, some states recognize that unmarried couples using donor insemination can both be recognized as parents, and some states allow unmarried parents to get a second parent adoption.

However, in other states, if you are a non-biological parent and are not married to the biological parent, the only way for you to be recognized as a parent right now is to get married and get a stepparent adoption. Contact one of our organizations for more information about whether your parental rights are protected.
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This guidance is intended to provide general information. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.