What Does Same-Sex Marriage in North Carolina Mean for Parental Rights?

Many gay and lesbian couples have faced several obstacles in obtaining parental rights to their children.  This is because historically only the biological parents received any parental rights without an adoption.  This means that when couples have decided to use in-vitro fertilization or some other type of fertility treatment to have a biological child, the non-biological parent could be at a disadvantage.  In some states a non-married gay or lesbian co-parent could adopt the child in a second parent adoption.  Unfortunately, North Carolina does not allow second-parent adoption.  This has legal ramifications because the non-biological parent in a same-sex couple had no legal parental rights to their children.  This means that if the couple separates, or if the biological parent unexpectedly dies without a will or guardianship arrangement, the non-biological parent does not have any custody or visitation rights for their children.

So what changes now that same sex marriage is legal in North Carolina?  When a child is conceived and born during a marriage, there is a presumption that both parents are the biological parents of the child born during the marriage, and they both receive presumed parental rights.  So, if a same sex couple decided to have a child during the marriage, they now both have presumed parental rights.  This in essence means that most of the time both parents (biological or not) will receive automatic parental rights in their child.  Many states where second parent adoptions are allowed still encourage non-biological parents to proceed with a second parent adoption to cover all of their bases.    So even though parental rights are presumed if you are legally married, they are not guaranteed.  Since North Carolina has yet to allow second-parent adoptions, couples are limited to stepparent adoption procedures.  It is understood that a co-parent is not a stepparent, but at this time this is the best way to ensure legal parental rights to the non-biological parent.  This is still a very new and evolving area of law in North Carolina and this information is based on how other states that have already recognized gay marriage have handled this issue.  Please contact our office at (980) 225-1832 or Info@DuncanLarsonLaw.com today if you have any questions about gay or lesbian family planning legal issues.