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Growing Your Family: an Overview for Same-sex Parents

Contents

    In June 2015, the United States Supreme Court decided that same-sex couples in all states have the right to marry. All states must also recognize marriages legally performed in other states. Federal benefits that used to be available only to opposite-sex spouses, such as Social Security, inheritance, and immigration status, now apply automatically to same-sex spouses.

    It is also easier now for same-sex spouses in Michigan to ensure that they both have secure legal relationships with their children. Legal parental rights ensure that you can fully participate in school, medical, and other decisions about raising your child. If you have parental rights, your child can inherit from you when you die. Also, if your spouse dies or you divorce, you will have custody and parenting time rights if your parental rights are secure.

    Depending on your situation, there are different steps to establish parental rights, often involving adoption. One exception is if you and your spouse are female and one of you has a child using a sperm donor during your marriage. In this case, you are both automatically legal parents of your child. If this describes your family, you may also want to consider taking extra steps to protect the non-biological mother’s rights through a stepparent adoption.

    This article touches on some of the more common ways same-sex spouses grow their families in Michigan. If you are looking for help and your situation is not discussed here, use Find a Lawyer to find lawyers and legal services in your area.

    Legal Parentage

    Before learning about your options, it may help to understand some things about legal parentage. Every child has a known birth mother who is an automatic legal parent. The only type of automatic legal father is a father who is married to the mother when a child is conceived or born. If he is not married to the mother, a biological father can establish paternity through an Affidavit of Parentage or a court order.

    If you want to adopt a child who is biologically related to your spouse, the parental rights of the other biological parent have to be terminated first. This can be done in different ways. The other parent can give their consent to termination of parental rights in court, for example. Where an anonymous donor is used through a sperm bank, many courts also accept sperm donor contracts.

    If you are adopting children who are biologically unrelated to you and your spouse, both of the biological parents must have their rights terminated before you and your spouse can adopt and become the legal parents.

    Becoming Your Child’s Legal Parent When You Are Married

    Adopting a Child Who Has Your Spouse as a Biological Parent

    Child Conceived Using Sperm Donor (Child Born During Marriage)

    In a same-sex female marriage where one spouse conceives a child with the help of a sperm donor and the child is born during the marriage, both spouses are automatically legal parents. The parents should not have any trouble getting both of their names on the birth certificate. However, legal experts recommend getting a stepparent adoption to protect the non-biological mother’s rights in case the marriage breaks down in the future. That way, the biological mother cannot claim that she intended to be the sole legal parent. Stepparent adoption also removes the risk of the biological mother trying to revoke her spouse’s parentage under the law of a different state. With a stepparent adoption, the spouse’s parental rights will be respected in all states.

    Some lawyers call the stepparent adoption process in this situation a “confirmatory adoption.” This term shows that you are your child’s full legal parent through marriage (not a stepparent), and you are simply confirming your rights through the adoption.

    If your spouse conceived your child through a known donor, a court may require the donor to consent to termination of his parental rights by signing the appropriate consent form. This is true even when the parties have a written agreement. With an unknown sperm donor, most judges will accept the donor contract from the sperm bank.

    At this time, you cannot use our Do-It-Yourself Stepparent Adoption to create the forms you need. However, you may still be able to do the stepparent adoption on your own. Many circuit courts have adoption departments that can provide you with detailed information and forms to help you through the process. If you think you need a lawyer’s help, use Find a Lawyer to find lawyers and legal services in your area.

    Child Conceived Using Sperm Donor (Child Born Before Marriage)

    If you and your spouse are female and your child was born before you were able to get married, you may have gotten a second parent adoption to establish the parental rights of the non-biological mother. If not, parental rights can be established now through a stepparent adoption. Read the paragraph directly above for information about stepparent adoption.

    If you and your wife had a child using a sperm donor and you do not want to get married, your options are limited for establishing the parental rights of the non-biological mother. It may be possible to get a second parent adoption in Michigan or a different state. Use Find a Lawyer to look for legal help in your area.

    Child Born to Surrogate Mother

    Caution: Surrogacy raises several complex legal issues. If it is done incorrectly, you could face criminal penalties. Because of this, if you are considering using a surrogate, it is strongly recommended that you find a lawyer. Use Find a Lawyer to search for a lawyer who specializes in this area of law. The paragraphs below give general information about surrogacy, but you should not attempt to go forward with surrogacy without a lawyer.

    If your spouse’s sperm is used to inseminate an unmarried surrogate, your spouse’s name can be on the birth certificate. In this situation, your spouse can establish his paternity by signing an Affidavit of Parentage with the surrogate after the child’s birth. Then the surrogate mother can voluntarily terminate her parental rights in court. After these things happen, you (the non-biological father) can establish your parental rights through a stepparent adoption. After the adoption is final, you can get a corrected birth certificate naming both you and your spouse as the child’s parents.

    If the surrogate is married, her husband is presumed by law to be the child’s father. Therefore, a judge must also determine that the child is not a child of their marriage before the other steps can take place. Whether or not the surrogate is married, you should not attempt to have a child using a surrogate unless you have a lawyer through the entire process.

    You cannot use our Do-It-Yourself Stepparent Adoption to create the forms you need if you used a surrogate. Use Find a Lawyer to search for legal help.

    Adopting a Child Who Is Not a Biological Child of Either of You

    You and your spouse can jointly adopt a child who is not a biological child of either of you. This type of adoption is typically a direct placement or an agency placement. In a direct placement adoption, the child’s parent or guardian chooses adoptive parents for the child. In an agency placement, an adoption agency, the court, or The Family Independence Agency selects the adoptive parents. An agency or direct placement adoption completed in any state will be valid in every other U.S. state.

    If your spouse adopted a child through a single parent adoption before you were married, you can establish legal parental rights to the child through a stepparent adoption. Once the stepparent adoption is complete, you will have the same parental rights as your spouse.

    Options for Unmarried Partners

    Currently in Michigan, there is no reliable way for a non-biological parent in an unmarried same-sex couple to establish parental rights. If you and your partner want to have a child without being married first, consider contacting a lawyer for advice. If you cannot do so in Michigan, you may be able to get a second parent adoption in a different state. To find legal help in your area, use Find a Lawyer.

    Birth Certificates

    If you and your spouse jointly adopt a child who is not biologically related to you, a new birth certificate will be issued for the child after the adoption.

    If you and your spouse are female and use a sperm donor, the child’s birth certificate should be correct if your child is born after the date of your marriage. If you were legally married before the Supreme Court decision in June 2015 (for example, in New York) and then had a child in Michigan using a donor, you can get an amended birth certificate naming both you and your spouse as parents. To do this, file an Application to Correct or Change a Michigan Birth Record with Michigan Vital Records.

    If you and your spouse are female and had a child using a donor before you got married, you can get a birth certificate listing both of you as parents after a stepparent adoption.

    Male spouses who have a child through surrogacy must wait until after the adoption to get a birth certificate listing both fathers. This is because the surrogate mother is listed on the birth certificate until an adoption is completed.  Married women who have a child using a sperm donor can get a birth certificate sooner because under Michigan law, a biological mother’s spouse is an automatic legal parent when the child is born. 

    Parental Rights When You Are Getting a Divorce or Separation

    If you and your spouse are getting a divorce and you have not established parental rights to your child, consider talking to a lawyer. If your spouse claims you are not your child’s parent, you may be entitled to custody and/or parenting time rights under the equitable parent doctrine. If you were never married and are separating, the equitable parent doctrine does not apply, but you may be able to reach an agreement about custody and parenting time through mediation. To learn more, read Separation and Divorce: An Overview for Same-Sex Families.

    Protection from Abuse

    Domestic violence can occur in families headed by same-sex couples as well as by opposite-sex couples. The same protections are available to all families, and the same rules apply to all parties. If you need protection from abuse, please see the toolkit I Need a Personal Protection Order – Domestic Relationship.