Parental Rights of Same-Sex Spouses: After Obergefell, Challenges Still Remain

In 2015, the landmark U.S. Supreme Court case of Obergefell v. Hodges established the rights of same-sex couples to legally marry in all 50 states. Many people across the nation rejoiced in the decision, viewing it (rightfully) as a major win for gay and lesbian couples. But many of us may have succumbed to what Huffington Post writer Michelangelo Signorile calls "victory blindness," taking the Obergefell win as a sign that the era of inequality was finally and permanently over. The nationwide legalization of same-sex marriage meant that full equality had arrived, or was, at the very least, inevitable and imminent... right?

It's never that easy, is it? Unfortunately, the Obergefell decision left some major issues unresolved, as Supreme Court cases often (intentionally) do. One major issue that remains largely unclarified is the parental status of non-biological parents in same-sex couples. Here's how it works: in most states, there is a "marital presumption" given to opposite-sex married couples. When a man and a woman are married and have a child together, they are automatically considered the legal parents of that child. However, the same rights are not automatically given to the female spouse of a birth mother, for example - even if her name is on the child's birth certificate.

Here is an excellent profile from NPR about one married couple's experience with parental rights and adoption after Obergefell.

In the currently murky state of same-sex parental rights, second-parent adoption is the preferred choice of many LGBT parents, adoption attorneys, and LGBT advocacy organizations. Although the process can take months, costs money, and can be somewhat intrusive, for now it is the only certain way to secure full parental rights in many cases. Hopefully, one day soon, same-sex married couples will enjoy equal parental rights automatically. Until then, second-parent legal adoption at least provides an avenue to reach that goal.