Cincinnati Family Law & Divorce Blog: Same-Sex Step-Parent Adoption

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If you are in a same sex relationship and you and your partner are raising children together, you may have questions about your rights, especially if you are the non-biological parent. The rights you have may depend on your relationship status at the time you and your partner had your children. If you were married at the time you had your children (in Ohio, this would mean a legally recognized marriage in this state), then your parental rights are already secured. An easy way to be sure is to check your child’s birth certificate. If your name appears, then you have already established parental rights over your child.

For families in who started having children prior to the United States Supreme Court’s decision in Obergefell v. Hodges, and were not married at the time their children were born, the non-biological parent may have no legal right to the children. It was a common practice in Ohio, prior to the Obergefell v. Hodges decision, for gay and lesbian couples to enter into “co-custody” or “shared custody” agreements which allocated custodial rights to both parties. While this a way to obtain some legal rights with respect to the children, custodial rights are inferior to parental rights. Custodial rights may be modified or terminated if a court determines it is in a child’s best interests to do so. Parental rights are constitutionally guaranteed, and therefore very difficult to strip away once granted.

Now that same-sex marriage is permitted in Ohio, many couples who had children prior to Obergefell v. Hodges have chosen to marry. While there is some question as to whether a child born prior to the marriage and raised jointly by the parties might be legitimized by virtue of the marriage alone, the best practice for securing a non-biological parent’s rights is to proceed with a step-parent adoption following the marriage.

A step-parent adoption goes beyond granting custodial rights and grants full parental rights to the non-biological parent in every way as if he or she were a biological parent. The non-biological parent’s name can then be added to the child’s birth certificate and the non-biological parent will have the same rights to custody of the child in the event of divorce as the biological parent. An adoption further ensures that the non-biological custody receives the child in the event of the death of the biological parent and that the child receives all rights of inheritance from the non-biological parent upon his or her death.

Because of the complexity involved in the same-sex marriage legal landscape, we advise you to contact an attorney in our firm if you have specific questions regarding your rights.