For unmarried parents, protecting custody rights gets complicated

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody on Tuesday, March 29, 2011

Missouri is one of the many states in the nation which does not permit second-parent adoption. Second-parent adoption allows an individual to legally adopt their partner’s children and therefore guarantee their parental rights even if they are not the child’s biological parent. Without second-parent adoption, many adults who assume parental roles in children’s lives have few legal rights with regard to those children.

This measure is especially important for unmarried partners who share parental responsibility, and particularly for same-sex couples who are not allowed to list two mothers or fathers on birth certificates or adoption papers. Second-parent adoption allows both partners in a same-sex relationship to have legal custody over their children.

The New York Times recently highlighted the story of one same-sex couple who found themselves in a bind as one of the partners will soon give birth to the family’s third child.

The couple lives in Michigan, another state where second-parent adoptions are not allowed, with their two other children. Due to second-parent adoption laws, only the children’s biological mother is considered their legal guardian, despite the fact that the non-biological mother dedicates her time to raising the kids as a stay-at-home mom.

Like most parents, the couple told the New York Times that the happiness and well-being of their children is their number one concern. Both partners worry that should something happen to the children’s biological mother, her partner-whom the children view as their second parent-might have to fight for legal custody. Additionally, without legal adoption papers, the non-biological mother will have no parental authority over the family’s expected baby and no right to seek child custody should the couple split.

Similar to other unmarried parents, this couple must take special steps to ensure that their custody wishes are protected under the law. For instance, the partners could file for a parental appointment of guardian, which would give the children’s non-biological mother custody priority over the kids’ extended family if the biological mother becomes incapable of caring for them.

The couple could also make sure to grant the children’s second mother the power of attorney over the children. This would allow her to speak for the kids in situations such as the doctor’s office or a school visits.

No couple likes to consider what would happen should their relationship come to an end, but for same-sex partners and other unmarried parents it is especially important to understand how each of their custody rights are protected by state law and what they can do to augment and protect those rights.

Source: New York Times, “The Extra Hoops Gay Parents Must Jump Through.” Tara Siegel Bernard, 23 March 2011

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