Sharon and Emily Hecht-McGowan on their wedding day
Op-ed: The Many Legal Hurdles to Being an LGBT Family

By Emily Hecht-McGowan

Originally published on Advocate.com July 18 2012 5:00 AM ET

My wife Sharon and I are anxiously awaiting the arrival of our first child, due in early October. We’ve done all of the usual planning – picked out bedding and paint for the nursery, made lists of potential names and scheduled our hospital orientation. 

We also met with our lawyer.

As is outlined in the new report Securing Legal Ties for Children Living in LGBT Families – the new companion report to All Children Matter: How Legal and Social Inequalities Hurt LGBT Families, released by Family Equality Council, the Movement Advancement Project and the Center for American Progress in October 2011 – the patchwork of outdated parental recognition and marriage laws across the country affirmatively harm children being raised by parents who are lesbian, gay, bisexual and transgender.  The definition of “family” has changed dramatically over the last 40 years, and unfortunately, laws and policies have failed to change along with it. Today, just 69% of children live with married, heterosexual parents, down from 83% in 1970.  Approximately 2 million children are being raised by LGBT parents today, and that number is only expected to grow in the coming years. 

Because I am the birth parent to our child, there will be no question regarding my legal status as a parent, and because we live in a state where our marriage is recognized, Sharon will also be considered a legal parent from the day our child is born. However, because the “presumption of parentage” hinges on our status as a married couple, there is high likelihood that should we travel to one of the 33 states that refuse to recognize the relationships of same-sex couples, Sharon will not be considered a legal parent. To absolutely ensure that Sharon’s legal status as a parent is recognized, we will complete the lengthy, costly and highly invasive process of securing a second-parent adoption.

We have also completed a “consent to inseminate” form, drafted temporary guardianship papers, medical powers of attorney and a handful of other legal documents to ensure Sharon’s ability to be listed on the birth certificate and to make medical and other parenting decisions for our child prior to the completion of the second-parent adoption. But make no mistake, an adoption is the only way to absolutely ensure Sharon’s parental rights are recognized in all 50 states because it results in a court-issued “adoption judgment” and establishes a legal parent-child tie protected by the U.S. Constitution’s “full faith and credit clause.”

All of these “belts and suspenders” wouldn’t be necessary if Sharon and I were a straight married couple.  We’d be able to live in any state in the country and have our legal rights as parents and our family automatically respected and protected by law.  Yet, even with all of the additional hoops we have to jump through, Sharon and I consider ourselves incredibly lucky – lucky to live in a state that recognizes our relationship to each other and that provides us with the ability to secure a second-parent adoption. And we consider ourselves especially lucky to have the resources (financial and otherwise) necessary to navigate all of the extra steps we must take to protect our family.  Most LGBT families aren’t so fortunate.

Contrary to stereotypes, children raised by same-sex couples are twice as likely to live in poverty as those raised by married heterosexual parents.  LGBT families are more likely to be families of color than those headed by married heterosexual couples.  We are geographically diverse – living in 93% of all U.S. counties. And while significant numbers of same-sex couples live in states like New York, California and Massachusetts, LGBT parents are most likely to raise children in Mississippi, Wyoming, Alaska, Arkansas, Texas, Louisiana, Oklahoma, Kansas, Alabama, Montana, South Dakota, and South Carolina – states with the fewest protections for LGBT people and their families. 

Most states provide no relationship recognition for same-sex couples. While all states allow married heterosexual couples to adopt jointly, same-sex couples (and unmarried heterosexual couples) face uncertainty in many jurisdictions. Only a handful of states have non-discrimination language on the books that explicitly prevents discrimination based on sexual orientation and gender identity in foster and adoptive placements.  Only 13 states and D.C. allow second-parent adoptions while 32 states effectively prevent same-sex couples from jointly adopting children. These laws affirmatively harm children with LGBT parents by denying them the ability to create legal ties with their second parent. Additionally, three percent of all foster children in the U.S. currently live with lesbian and gay parents.  And while states in need of adoptive homes for foster children consistently report that one of the biggest obstacles is finding qualified families who want to adopt, the majority of them fail to recruit LGBT parents. These practices deny thousands of children the ability to find their forever homes.

This lack of legal recognition harms children in countless ways.  It can restrict a family’s access to health insurance and social safety net programs.  It limits a parent’s ability to make legal or medical decisions for their child and may also restrict hospital visitation.  A child becomes vulnerable if their parents’ relationship ends, sometimes being denied visitation with the non-legal parent. It may also be difficult to collect child support from a parent who is not legally recognized.  A non-legal parent could be denied custody of a child when the other parent dies.  A child could be denied critical disability or survivors’ benefits if a parent dies or becomes ill or injured and depending on state intestacy laws, could be denied the ability to inherit from a parent’s estate. 

All children deserve a safe, stable loving home where their family is recognized, respected and protected.  Securing Legal Ties for Children Living in LGBT Familiesprovides us with a comprehensive overview and a roadmap for how we can go about ensuring that every child, regardless of who their parents are or how their family was formed, can grow and thrive in safe, secure and loving homes.

 

EMILY HECHT-McGOWAN is the director of public policy for Family Equality Council.