Academic journal article The American University Journal of Gender, Social Policy & the Law

Voluntary Acknowledgments of Parentage for Same-Sex Couples

Academic journal article The American University Journal of Gender, Social Policy & the Law

Voluntary Acknowledgments of Parentage for Same-Sex Couples

Article excerpt

INTRODUCTION

The law in all states presumes that a husband is the father of his wife's children and gives him the status of the children's legal father.1 In sixteen states, same-sex couples can marry or enter civil unions or domestic partnerships that give the parties all or almost all the benefits of marriage under state law, including the presumption that the spouse/partner of a legal parent is presumed to be the legal parent of a child born into the relationship.2 The status of legal parent provides crucial protections to the adults and children in a parent-child relationship.3 For example, adults who consider themselves parents but who are not legally recognized as such are not obliged to support the child and are not entitled to see the child if the child's legal parent objects. If a child's legal parent dies or becomes unable to care for the child, there is no guarantee that an adult who had acted as parent but who did not establish legal parentage will be allowed to continue living with, or even see, the child.4

While marriage before a child is born automatically brings legal parenthood to both adults, if an unmarried woman has a baby, only she is automatically the child's legal parent. Unmarried couples5 must take additional steps to confer legal fatherhood on the man. Traditionally, an unmarried father became a legal parent only by later marrying the mother or because of a judgment concluding a paternity suit.6 Today, however, in all states, opposite-sex couples who cannot or do not wish to marry can establish the man as a child's legal father by signing a voluntary acknowledgment of paternity (VAP) and filing it with the state vital statistics office.7 Voluntary acknowledgments have become the most common way to establish the legal paternity of children born outside marriage. In 2009, 1,693,850 children were born outside marriage.8 In the same year, paternity was established by a VAP for 1,167,000 children, compared to 643,000 cases in which paternity was established by adjudicative processes.9

In contrast, same-sex couples who cannot or do not want to marry but who would like to be legal parents together do not have a cheap, simple way of achieving this goal. All unmarried parents, including same-sex couples, need to be able to identify themselves as being in a family with their children and to claim the protections of legal parentage for themselves and their children, even though the unmarried parents are not making the commitment to each other that marriage entails. This Article proposes recasting the voluntary acknowledgment of paternity as a voluntary acknowledgement of parentage, available to all unmarried couples, samesex as well as opposite-sex.

Same-sex couples do have ways of establishing both partners as legal parents, at least in some states. The first section of this Article describes these legal devices and explains why they are inadequate for protecting same-sex couples and their children. The second part of this Article describes voluntary acknowledgments of paternity in some detail and how opposite-sex couples use them. Then, this Article argues that voluntary acknowledgments or their legal equivalent should be made available to same-sex couples as well. This part of the Article includes an analysis of possible arguments against my position and my responses. The last section details a proposed set of statutes that would create the equivalent of voluntary acknowledgments for same-sex parents, appropriately adapted to fit the specifics of their situation.10

I. LEGAL PROTECTIONS FOR ADULT-CHILD RELATIONSHIPS WHERE THE ADULT IS NOT THE CHILD'S BIOLOGICAL PARENT

The law in all states allows at least some adults who are not a child's biological parent to become legal parents by adoption, and statutes and case law in many, but not all, states allow adults who have functioned as a child's parent to be treated, at least to some extent, as the child's legal parent.11 These devices are available to same-sex functional parents in some, but not all, states. …

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