After Obergefell: Parental Presumption

The ABA Journal has an article out today looking generally at the state of family law after the Supreme Court recognized same-sex marriage in Obergefell v. Hodges.  The portion that might be of interest to adoption law folks addresses the traditional parental presumption that a child born [or maybe adopted] during marriage is the child of the spouse. In talking about less-than-simple administrative issues like who to include on death and birth certificates, the article says:

When it [who gets listed on birth certificates] involves the presumption of parentage, it serves as the foundation for a lifetime of parenting rights and responsibilities. In most states, parentage presumptions flow from the woman who gives birth to a child, with her husband presumed to be the child’s legal father.

NeJaime contends that the marital parentage presumption is currently the biggest unresolved issue stemming from Obergefell. “In states like California, Massachusetts and others, it’s clear the presumption does apply,” he says. “It had also been litigated in some states like Iowa before Obergefell. But in a lot of other states, where state governments are relatively hostile to same-sex marriage, they’re refusing to apply those presumptions to same-sex couples. They’re refusing to issue birth certificates that list both women as parents. That’s happened in Arkansas, Florida, Indiana and Wisconsin.”

That same-sex couples should get identical parentage presumptions as those of opposite-sex couples seems to NeJaime a “clear and natural result” of Obergefell. But he admits the question is complicated because courts have for decades grappled with determining whether parentage is a function of biology or who’s actually parenting a child. Statutes don’t help when they include terms such as natural father or biological father.

“Does that mean what it says?” asks NeJaime. “In California, courts have said natural parent means legal parent. In other states, natural means biological. The argument in response is that while that might be true, nobody asks heterosexual couples who the father of children born during their relationship is. When there’s a sperm donor, nobody asks if it’s the husband’s sperm.

“States haven’t used the biological definition of parenthood, so it doesn’t seem like they can apply such a definition to exclude lesbian couples the right to the marital presumption of parentage.”

Varying state laws portend state-by-state challenges, and there may not be uniformity anytime soon.

“It’ll have to be recognized individually in each state, and it’ll be a long time before there’s clarity,” Sakimura predicts. “For that reason, we’re recommending same-sex couples having children do an adoption or get a judgment of parentage, which is available in many states.”

This issue may also be resolved at different paces for different-gendered couples. Because parentage presumptions flow from women, NeJaime says cases with male couples could present more challenges.

“For male couples, there’s no woman from whom to provide parentage,” he explains. “It’s an interesting question of how courts will deal with same-sex parentage with male couples. That’ll be decided at a later time.”