Family Planning Post Marriage Equality
Equality in marriage brings with it new questions and concerns regarding how to make the best decisions for all families. Just a quick reminder—marriage does not equal parentage, and in order to protect each same sex parent’s rights and responsibilities, adoption by the non-biologically related parent remains an important part of the equation.
Imagine a situation in which Bio-Mom gives birth to multiple children, both before and after a legally recognized marriage to Other Mother. What rights and responsibilities does Other Mother have in the event of a divorce or the death of Bio-Mom?
The same principles apply to a child born outside a same sex marriage as in one—the non-biologically related parent needs to adopt the children in order to protect her rights.
If Bio-Mom and Other Mother divorce, Bio-Mom could potentially assert that Other Mother has no parental rights and attempt to deny Other Mother access to the children completely. While Other Mother potentially has “step-parent” standing in a county like Travis, she is unlikely to ever be awarded primary custody (decision-making on residence) or equal rights. And in a more conservative county (we’re looking at you WillCo), there is a chance Other Mother might never get to see the kids again.
Also, if Other Mother is a legal parent, she’s equally on the hook as Bio-Mom is for child support—because with all the rights come the responsibilities too.
If Bio-Mom dies, there is the potential that her relatives or even the state could assert that Other Mother is just a step-parent, rather than a LEGAL parent. While Other Mother has standing under Family Code section 102.003(a)(9) to initiate a custody suit (as someone with actual possession of the child), if she is already a legal parent, parentage is just automatic, no court need determine anything first.
The bottom line is that, even post same sex marriage, adoption of any children by the non-biologically related same sex parent is an important part of family planning and potentially saves future headaches and heartbreaks. It is family insurance!
