With the recent U.S. Supreme Court decision legalizing same-sex marriage, comes the issue of paternity and parentage. The question of who a child’s legal parents are is one that doesn’t come up in most heterosexual relationships, but is often central to the lives of same-sex partners raising children.
Each state has its own rules establishing who is and who is not a parent. In Pennsylvania, there is an automatic presumption that both partners in a same-sex marriage are legal parents. In Pennsylvania, when issues of paternity are raised regarding same-sex parents, the court applies the legal fiction known as the doctrine of the presumption of paternity. Under this doctrine, ‘the presumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents.” That is, same-sex spouses are automatically considered legal parents with equal rights and responsibilities.
Conclusive evidence of paternity in heterosexual relationships can be established by the father signing an acknowledgement of paternity, but there is no parallel document such as an acknowledgement of maternity in same-sex marriages. Simply listing the non birth mother on the birth certificate is not sufficient. Currently, for same-sex female parents, a second-parent adoption along with providing supportive documents (sometimes with legal translation) is the only method for protecting against any challenges to the non birth mother’s parentage that may arise. Pennsylvania has allowed same-sex second-parent adoption since 2002, per In re Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002).
To make sure your parental rights are protected, it is important to consult with an experienced family law attorney who can help you understand the rules that apply to your situation and the options available to you.