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Legal Issues for Same-Sex Parents

Increasingly, same-sex couples are raising children, and this has legal implications.

Stepparent Adoption

When Minnesota began allowing same-sex couples to marry, this created for the first time the possibility of a same-sex couple going through the stepparent adoption process, by which one spouse legally adopts the child(ren) of the other.  (Previously, the only similar option was a "second-parent adoption" -- see below.)  Although the Minnesota Department of Health will, under certain circumstances, list two same-sex spouses on the birth record of a child born to one of the spouses during the marriage, just being listed on the birth record as a parent does not establish a legal relationship.  An adoption process is still recommended by many attorneys to assure that the non-biological parent's relationship to the child is legally recognized.

Second Parent Adoption

In Minnesota, if the same-sex partner of a biological parent wants to adopt the partner’s child, they can petition the court in the county where they live for what’s often called a “second parent adoption.” Legal adoption of a non-biological child establishes a legal relationship between the child and the non-biological parent, and puts the adoptive parent on precisely the same legal plane as the biological parent.

Standby Custodian

If a couple chooses not to pursue legal adoption, they can still take other steps to protect the relationship between the child and the non-biological parent. For instance, Minnesota law recognizes what are called “standby custodians.” Standby custodians are adults that parents (or other already legally-recognized guardians, such as grandparents or others) designate to step in for them should they be unavailable to care for the child. A biological parent can complete a relatively simple form and identify the particular circumstances which would authorize the standby custodian to act, including the biological parent’s debilitating medical problems or even death. Once the triggering event occurs, the custodian will have the authority to act as a parent for such purposes as seeking medical care for the child, communicating with the child’s school, or making most other legal decisions.

The standby custodian form is filed with the county of residence either before, or within 60 days after, the triggering events. The designation lasts for as long as the biological parent desires, and can be revoked in writing. For a nominal fee, a designation can be added to the parent’s driver’s license indicating they have designated a standby custodian.

If the child’s second biological parent is still in the picture, that person must consent to a “third party” being made their child’s standby custodian. Still, a parent determined to take this step over the other biological parent’s objection can petition the court to hold a hearing to determine whether designating this standby custodian is in the child’s best interest. In such a case, consultation with an attorney is highly recommended.

There is a process for getting the designation approved by a court.  The statute explaining that process is Minn. Stat. 257B.05.

Parenting Agreement

Couples can draft what are often called “parenting agreements.” These documents are, in essence, contracts between the partners which spell out each person’s role with regard to the children they are raising, and the partners’ expectations of each other. A thorough parenting agreement will document the role each has played, if any, in the conception, delivery, or rearing of the children involved. Agreements can cover the entire range of parenting issues, such as the role each parent will play in making important decisions, what each will contribute financially to the child’s upbringing, how tasks like transportation will be divided, or how the family will present itself to relatives, schools, day-care facilities, etc.

A parenting agreement can also specify that both partners will include the child in their wills, or direct that in the event the relationship ends, the non-biological parent will enjoy a certain level of ongoing contact with the child.

An important note to couples

Under Minnesota law, any adult who has lived with a child for at least two years in a parent/child-like arrangement can seek visitation of that child if the couple terminates its relationship. In 2007, the Minnesota Supreme Court affirmed the constitutionality of the relevant statute in a visitation dispute between lesbian ex-partners.

In addition, if couples work to establish this type of parental relationship between the non-biological parent and the child, and later the relationship ends, the biological parent could petition the court to order the non-biological parent to pay child support.

This information is not intended to constitute or replace legal advice: always consult your attorney before drafting or signing documents which affect your legal rights. If you need a referral to a GLBT-friendly attorney in your area, please contact the OutFront Minnesota Legal Program at 612-822-0127 ext. 7663 or legal@outfront.org.

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