What the heck is a Parentage Order?
So everyone has heard of adoption right? Its been around for ages. Its widespread availability has increased over time, and its process varies from place to place, but it's not a new concept so people are generally familiar with it. But what is a Parentage Order and why would someone want one?? I get this question during consultations at least three times a week, and for good reason. Parentage Orders in many places (including New York) are new. So let's discuss.
A Parentage Order (a.k.a. Judgment of Parentage) is a Court Order legally entitled to full faith and credit that confirms that the intended parent or parents (whether gestating or non-gestating, genetically-connected or not) are the legal parents of a child. The Order can also declare that a donor has only the legal status of "donor", not "parent". And being entitled to full faith and credit (deriving from Article IV of the U.S. Constitution) means that every U.S. State is to respect that Order, even if they wouldn't have issued it themselves. Meaning they need to respect the parentage it confirms (I'm talking to you Southern States!).
In New York, this is something that can be obtained where there is a surrogacy pregnancy, or where a child was otherwise born using assisted reproduction (IVF or IUI), so long as certain criteria are met in terms of residency, age of the parents, etc.). Other than in surrogacy situations, I see it most often used in my practice among lesbian or queer couples where both partners or spouses planned together to have kids, but only one of them actually gave birth (obviously). Unfortunately, that leaves the other parent who didn't give birth in a precarious situation of not being on an equal legal footing with the delivering parent. So we need to fix that. And obtaining a Parentage Order is a streamlined way to do that.
The process is generally a quicker, less expensive and far less burdensome route for families to achieve that legal connection with their child than the alternative of a second or step-parent adoption. It is far more secure than relying on marriage equality or the marital presumption to translate into equal parental rights (hint: it doesn't!). And it secures a same-sex parent's rights and obligations to their child waaaaaaaay more than just being on the birth certificate!!! (See my prior blog post on why just being on the birth certificate is not enough https://www.jpmfertilitylaw.com/post/the-lgbtq-parent-dilemma-why-a-birth-certificate-is-not-enough )
There was a long-standing need to find a better way for families to secure their legal ties to their children when born to same-sex couples. And finally, on February 15, 2021, New York enacted Article 5-C of the Family Court Act which, among many things that get way more fanfare (like allowing for compensated gestational surrogacy to be legal) opened the doors to a more streamlined path to parentage for parents in New York who were seeking an alternative to adopting as a second or step-parent. And obtaining this kind of Order not only is a quicker and less intrusive option, it also differs, meaningfully, in that it is a confirmation of legal parentage (confirming what a couple already knows in their hearts, which is that a bond of parentage already exists between a non-gestating parent and their child) rather than an establishment of the legal bond of parentage. Also, unlike an adoption petition which can't even be filed until after the birth of a child, a petition for a Judgment of Parentage can be filed during a pregnancy and the Court Order can in some cases be obtained prior to a child's birth or shortly thereafter (made effective upon birth).
Sounds great! So what's the catch? Well, it may not be right for everyone. Remember I mentioned meeting certain criteria? For one thing, a Parentage Order isn't available in NY for non-residents or residents who have been here less than 6 months, unless the child is born here/will be born here and the Parties file within a very small window of opportunity. It's also not available where the child was conceived using sexual intercourse or even through assisted reproduction when that occurred before the intended parents were together and planned for it together. And for some people, pursuing a second or step-parent adoption may be a better choice. For those with dual citizenship or who plan to live abroad, pursuing an Adoption Order with it's more universal recognition may be a better option and one to discuss with your attorney.
But whether choosing second or step-parent adoption for your family or securing a Parentage Order, LGBTQ+ New Yorkers who use IUI, IVF or even RIVF (reciprocal IVF) to have their children would be wise to consider making use of one of the available avenues NY offers to secure legal parentage. It may be a risk not to, as we can see from a very recent case (from April 2022!!) in Oklahoma, where during the course of a divorce proceeding, a Judge ruled that a non-gestating lesbian parent should be removed from her child's birth certificate and have no parental rights as she failed to go beyond the birth certificate and obtain some sort of Order of parentage or adoption where the State's laws afforded her that ability and she chose not to pursue it. (See https://kfor.com/news/local/oklahoma-mother-to-be-removed-from-babys-birth-certificate-because-shes-not-the-gestational-parent/ ) New York is certainly not Oklahoma, but we don't live in a stagnant society where people don't move around and travel and we have no idea what our laws will look like ten or fifteen years from now. And relying on just the fact that New York isn't Oklahoma isn't much of a plan for security. I hate that that next step has to be taken for some couples and not others and very much realize the frustration and inequities of it all. But we can only operate within the world in which we live, and for now that's the status of things.
All in all, every situation and every family is different and so it's crucial to discuss your specific family planning and options with a locally-licensed attorney familiar with the law and the needs of your family. But, while we've all heard of adoption, it's no longer the only game in town for New York same-sex families looking for security.
Contact the Law Office of Jennifer P. Maas, PLLC https://www.jpmfertilitylaw.com/contact
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. Attorney Advertising.