If you are a lesbian with children, and one partner is the birth parent, how do you protect your parental rights? Unfortunately, you need to establish legal parentage even if you are on the birth certificate, due to the lack of certainty throughout the country and overseas. It is incredibly painful to learn you are not considered a legal parent of the child you love. Establishing parentage should be done regardless of whether you are considering leaving your relationship.
Legal parent status: declaration of maternity and second parent or stepparent adoptions
There are different ways to establish parentage. Finding the best approach for you is determined by the circumstances of the child's birth and whether you are married.
Declaration of maternity
This is a decree granted by courts that the non-biological partner is a legally recognized parent. You will need to show you fit into one of the statutorily defined categories. The birth parent does not need to consent in this proceeding. Petitions can be found online.
Adoption decrees: second parent adoption
A second, non-biological parent can adopt a child who has a legally recognized sole parent. The rights of the legal parent are not restricted, and marriage is not required, in contrast to stepparent adoptions. You must complete a background check, home study and be 21 years old or older to adopt.
After the petition is filed and the background check is complete, you have an adoption hearing. The judge signs a Final Decree of Second Parent Adoption, certified by the court and sent to the state department of Public Health and Environment and the Registrar of Vital Statistics. Some additional paperwork is completed with the Registrar, after which a new birth certificate is issued. The court's adoption decree is recognized in every state.
Adoption decrees: stepparent adoption
If you are married or in a civil union, stepparent adoption is available in Colorado as well. The custodial parent has to consent and the noncustodial parent must forfeit their parental rights, either voluntarily or involuntary through a court order. A stepparent adoption is faster and easier to obtain than second parent adoptions in Colorado. After the petition is filed with the court, you have a hearing and are granted a decree as in the second parent adoption process.
Protecting your family is still needed, even though same sex marriage is constitutional
Although same sex marriage is the law of the land, there are still instances where judges seek to limit or deny your rights. For example, in the 2017 Supreme Court case that ruled Arkansas's biology based birth certificate rules as unconstitutional, the dissenting justices argued that precedent under Obergefell was limited to marriage, and did not include biological birth certificate rules. Luckily, they were the minority. However, this reiterates the need to protect yourself and your child by solidifying your legal rights in the event of a split.