5. Legal Issues for Same-Sex Parents
Increasingly, same-sex couples are raising children, and this has
legal implications.
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.
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. 230 or .
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