1. How do we make sure each of us is an equally and legally recognized parent?
Both of you must be able to establish parentage according to the laws of Minnesota. If you don’t establish parentage properly, you put yourself at great risk of having your rights as a parent severely restricted (to visitation only) or denied altogether.
2. What are the ways to establish parentage if you are not a biological parent?
– Marriage (*optional, but helpful)
Because same-sex marriage is now legal in Minnesota and many other states, the bonds of marriage offer a long-standing presumption of parentage if the child was conceived and born during the marriage, and you voluntarily “hold yourself out” to be the parent (in other words, you behave like a parent after the child is born and you don’t formally and timely deny that this child is yours).
Warning: this presumption has not been applied consistently yet to same-sex marriage, and I caution soon-to-be parents not to rely on marriage only to establish parentage. This should become a standard and consistently applied presumption for all married couples very soon as more and more LGBT couples marry and start families.
Additionally, because same-sex marriage is legal, both parents may be recognized on the birth certificate upon the birth of the child.
– Establish Intent by Written Contract, pre-conception
“Intent” to be the parent(s) goes a long way as far as the law is concerned, in recognizing and establishing your parentage (although intent, alone, is not enough). “Intent” may be formalized (and, therefore, recognized consistently) through a written contract, signed by both parties and otherwise properly executed. It is highly recommended that you consult an attorney who can assist you.
– Adoption, post birth
Again, since same-sex marriage is legal in Minnesota, there is always an option to adopt any child born to one partner or born to someone outside the partnership. Obviously, rules of consent apply to biological parents. Some couples even adopt in addition to the two additional steps listed above, just to be certain that parentage is recognized.
– Court Order (“Declaratory Judgment”)
In some counties (each county is different), you may be able to get a court order that establishes parentage for one or both parents.
3) What are the issues with the various methods of becoming a parent?
At least two important issues to address:
1) To avoid future issues with child support, use an anonymous donor with the assistance of a licensed physician.
2) Establish intent by creating a contract, as mentioned above, prior to conception, and ensure its legal validity.
Important issues, of many, to address:
1) All parties involved should have their own attorney who can assist them in understanding their rights and responsibilities throughout the pregnancy and after birth. Complications can arise very quickly because more than one party commonly has “biological” parental rights. And, the laws are not always clear cut – legislators have not always kept up with the science.
2) Again, establishing intent and process by means of a clearly articulated and legally valid document in writing is exceedingly important.
Perhaps the most straight-forward and traditional of the options, but keep in mind:
1) biological parents must consent,
2) marriage creates the need to use a “step-parent adoption” petition,
3) this is a court-supervised process, advisable to use an attorney ($ + time).
In short, there are a number of unexpected traps or unfortunate and unintended outcomes when your planning (or lack thereof) is not complete and thoughtfully anticipating all outcomes to your marriage/partnership. Let an attorney help you think through these choices, these risks and possible outcomes, and assist you in drafting and executing legally binding documents and agreements. There are attorneys who specialize in this area of law, whose interests in and sensitivity to assisting the LGBT community specifically are clear and strong.This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com
ALL READERS: This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.Contact Bridget-Michaele Reischl at: DECORO LAW OFFICE, PLLC 6 West 5th Street, Suite 800-D Saint Paul, MN 55102 (651)-321-3058 [email protected]