Understanding the Legal Rights of Same-Sex Spouses of Minor Children

HNWEstate Planning, Guardianship Law

Same-sex familyIntroduction

What is the legal status of a non-birth spouse to a child(ren) born to their spouse during marriage? What happens if the birth mother dies or the couple divorces? Is the child considered a Class A beneficiary under N.J. inheritance tax law? Let’s address these subjects in this blog.

Around 20 years ago a N.J. court considered a case involving two female, same-sex partners who, before same-sex marriage was legalized, held themselves before the world as life partners – a family. As with any life partners, they celebrated their union with family and friends, purchased a home jointly and carefully planned to have a child. One of the two gave birth to the child after being artificially inseminated by an anonymous donor. The non-birth mother/spouse sought to obtain legal parentage of their child. Her argument to this end was based upon the provisions of the “Artificial Insemination Statute,” N.J.S.A. 9:17-44. This statute provides that, if, as part of medical infertility treatment, a woman is artificially inseminated, then her husband is still presumed to be the father of their resulting child, even though he could not be the child’s biological father. This partner who did not give birth successfully argued that, by the same logic, she should be deemed to be their child’s other parent.

In reaching its conclusion, the Court considered that the non-birth mother sought to take responsibility for the child, including providing material support, and this advanced an important policy goal of the Uniform Parentage Act, namely, to “recognize the obligations of parents in any possible combination and permutation of marriage of the parents, method for conception of the child, and arrangements that intended parents make to have children.” The Court also determined that this result best served the interests of the child.

Because of the intervening legalization of same-sex marriage, one would expect that a surviving same-sex spouse would enjoy the presumption that she should be the guardian of a child born of the marriage, just as a surviving opposite-sex spouse would be. This could, of course, be subject to a challenge that the surviving spouse’s guardianship would not be in the best interests of the child. But that is true for an opposite-sex surviving spouse, too.

Although a same-sex spouse can be reasonably certain that they would be appointed guardian of his/her child after the death of his/her spouse, one way to make certain of this outcome is for the spouse who did not give birth to the child to apply for a “second parent” adoption. This form of adoption, once commonly called a “stepparent adoption,” does not abrogate the rights of the birth parent but, rather confirms the adoptive parent as a second parent. That said, if the non-birth parent is listed on the child’s birth certificate, a Court could determine that a legal adoption is unnecessary. Some family law practitioners are hesitant to assume anything. They are reluctant to rely on just the birth certificate. Judges have disestablished the paternity of a non-biological father following blood tests notwithstanding he is identified and named on the birth certificate. Would a judge do something like that in the absence of an order for parentage or adoption? There’s not enough law established on parentage for it to be impenetrable notwithstanding the outcome of the case discussed above.

Family law attorneys believe adoption is the only sure thing. They believe the adoption process is more streamlined these days. Since it will be uncontested, it shouldn’t take more than a few months. Adoption will protect the non-birth mother not just in the event of biological mom’s death, but also in the event the parties break up and a divorce gets nasty.

To discuss your NJ adoption, guardianship and estate planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Planning Attorney

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