Achieving LGBTQ Equality Through Litigation, Legislation, Policy, and Public Education

#Equality4Families: The Facts of Parenting Laws

Didn’t the U.S. Supreme Court marriage decision automatically protect all families?

Unfortunately not. The Supreme Court decision does a lot to protect our families, but there are still many state laws that need to be updated before all LGBT parents – whether they are married or not – will be recognized by the law.

Why doesn’t gaining the freedom to marry protect LGBT parents?

Getting married doesn’t necessarily make you a parent to your children under the law. For example, in most states, you have to be married when your children are born to get any parenting protections. Parents who married after their children were born usually have to adopt to protect their rights. Even parents who were married when their children were born may not be fully protected in every state if they are not biological parents. And unmarried non-biological parents remain unprotected in many states. For information about how to protect your parental rights, visit our Legal Recognition of LGBT Families publication.

Why does every state have different laws about families and parenting?

Every state is allowed to make its own family laws. This means that LGBT parents may be legally-recognized in one state, but not in another.

How bad is this legal problem for LGBT parents?

For LGBT parents who are not biological parents, they can lose their parental rights when they travel across state lines because every state has different family laws. This means they may be unable to make medical decisions for their child if they are in an accident. Other parents may lose custody of their children if their parental rights are challenged in court.

How common are the problems that parents face?

Although many families are fortunate enough to face only minor challenges in being recognized as a family, many others face serious consequences from the lack of adequate legal protections. In one of our cases, a lesbian couple in a civil union who used a known sperm donor to conceive their child had a court order that their sperm donor was their child’s father and that he was entitled to visitation. In another case, a non-biological mother who raised her child with her partner for seven years was denied any ability to seek custody or visitation. In another, a transgender father who has been the primary parent faces losing custody of his child. In yet another, a gay dad who conceived his child through surrogacy, but is not the biological father, is having his parental rights challenged in court.

Although many states have good legal protections for LGBT parents, every state denies legal recognition to some families. For example, some states do not protect unmarried non-biological parents, and some states don’t protect parents using assisted reproduction or surrogacy to conceive.

What is needed to fix these laws?

We need to bring cases and pass legislation to fix these laws and protect all families, no matter how they are formed. We also need to raise awareness about the challenges that LGBT parents and their children still face. We have made a lot of progress, but there is still a lot that needs to be done. We’ll continue to be here doing this work until every family is recognized by the law.

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