The Respect for Marriage Act... Great But Not Awesome
We are so happy that the Respect for Marriage Act (RFMA) is the law of the land! HOWEVER... it worries us to no end that LGBT families are mistakenly thinking that parentage is now protected by it. Spoiler: It's not!
Unfortunately marital rights and parental rights do not go hand in hand (see our prior blog posts for more on this). Many same-sex parents are still in need of that extra step of adopting their children or obtaining a parentage order so as to clearly establish or confirm a legal relationship with their children born using a donor and through assisted reproduction--such as when using medical procedures like IVF, IUI, at-home insemination such as ICI/IVI and even if Reciprocal IVF is used. For surrogacy as well, it's a necessary legal phase--so both intended parents (if two), or the intended parent (if solo). and not the surrogate are the confirmed legal parents or parent.
The good news on the marriage front: The RFMA protects your marriage if you're married.
The bad: It still doesn't require all U.S. States to allow everyone to marry those they choose.
If Obergefell v Hodges (the federal landmark case of 2015 - https://ballotpedia.org/Obergefell_v._Hodges) is overturned as the present Supreme Court seems anxious to do, U.S. States will then be free to decide not to allow same sex couples to marry. This will in that sense mirror the change in abortion laws and reproductive freedom after the Dobbs v Jackson Women's Health case was decided in 2022, where the decision whether to allow that reproductive care or not reverted to the States, and changed any hope of uniformity and free access cross the U.S. landscape. (https://ballotpedia.org/Dobbs_v._Jackson_Women%E2%80%99s_Health_Organization) . Same with the "right to marry". It will be a decision left up to the States. However if you are married already or in the future in a State where it is legal to do so, your marriage will be given "full faith and credit" (a.k.a. legal respect) in every State--even of that State wouldn't allow you to marry on their soil.
But what does this mean for parental rights for same sex couples? Well, that's not touched by the RFMA. Meaning, that remains unprotected. Just being married does not make each person in the marriage a legal parent of each child. There may be a marital presumption that a child is "of the marriage" and therefore a child of each spouse (as in New York State). But presumptions can be rebutted (very easily in the case of a same sex couple, where the couple cannot usually conceive the child truly "of the marriage" without donor gametes involved) and a mere "presumption of parentage" is not something that you can rely on or take with you as you travel around from State to State.
So despite the RFMA, same sex couples are in the same position today as before its passage. While it is truly great in providing federally-recognized and required respect for marriages that exist or are able to come into existence, it does nothing to protect or create parental rights and responsibilities as to children of the LGBTQIA+ community.
Being married alone or being on a child's birth certificate is not enough and does not establish parental rights for both "parents" as discussed in greater detail in our other blog posts. A birth certificate is not irrebuttable proof of parentage. Unfortunately while people may act in every way as a parent, consider themselves a parent, and socially are considered a parent, in New York (and most states) the person who didn't give birth to a child (in a same-sex female relationship) and the non-genetically-related male (or sometimes both male spouses) when surrogacy is used, is/are not considered a "legal parent(s)". They are in essence a legal stranger--which is usually completely not what they intended. "Parent" actually is, along with being a social concept, more importantly a legal concept as well. Legal Parentage affects many things, such as custody rights, visitation rights, rights to make medical decisions and have conversations with medical staff about a child's health and treatment, inheritance, and more. So it goes beyond how you view yourself and even beyond how others or the child views you.
Therefore, even with the passage and implementation of the RFMA, LGBTQIA+ families are still recommended to pursue a court order to confirm or establish legal parentage. This can be done through a Parentage Order (in many States, like NY) or through an Adoption Order--each of which are entitled to "full faith and credit" across the United States. A voluntary acknowledgment of parentage is another option for families, however there is debate among the legal community serving LGBT families as to how reliable it really is in terms of true, long-term protection, and therefore most practitioners recommend that a court order be obtained for true family protection.
Those in the LGBTQ community wishing to secure their parentage should consult with a family formation attorney licensed in their state to discuss their specific situation. Contact the Law Office of Jennifer P. Maas, PLLC to discuss your options with a New York licensed family formation attorney, should you wish to pursue securing your parentage in New York.
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**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact our office should you wish to discuss the specifics of your situation and to hire our firm to represent you.