Are There Any Legal Solutions That Would Give My Partner Equal Rights with Our Baby?
Answered by Liz Seaton, deputy field director and staff counsel for the Human Rights Campaign. April 1, 2002
Protecting your family
Q: Dear Liz,
I am the birth mother of a 22-month-old baby with my female partner of eight years. We want to ensure that my partner gets the baby if anything happens to me. I have a power of attorney and a will stating that she is to be the guardian. But I have been informed that this will not be enough if a family member comes forward and wishes to take the baby, so we are looking into second-parent adoption.
I am scared to sign a joint-custody agreement because my partner makes more than twice the money I do. Her name alone is on the house and, if we were to separate, I might want to raise my child around family in North Carolina or Tennessee. We currently live in Maryland.
Is there a workable legal solution that would give my partner equal rights with the baby but preserve my rights as the primary parent?
Deborah
A: Dear Deborah,
I admit to being more comfortable with the first half of your question than with the second, so I will address them separately.
I read the first half to be "How can our immediately family best be protected from challenges from extended family members in the event of a crisis?" Without a doubt, the best protection your partner (and, therefore, your child and your family) can have as a nonbiological parent is to complete a second-parent adoption, which is akin to stepparent adoption. (In a few courts, the legal framework might be called joint adoption, where you petition jointly to adopt the baby together.) Then, if something happens to you, your partner would be the other legal parent, and the baby would be hers legally.
The second half of your question raises an entirely different issue, which is how can you apportion parental rights between the two of you so that you can be in a stronger legal position as a parent in case your partner and you break up in the future? This question raises a red flag. Does your partner agree that this is the desired result? And is that result really best for your family? There can't be "equal rights" between you as parents when you are in a stronger legal position. Unfortunately, in our community the nonbiological parents of our children are at greater risk of being cut off from them by partners who are the biological parents and often claim against overwhelming evidence to the contrary that the partner was never intended to be a parent. Again, the best protection for your partner and your family is second-parent adoption.
With that said, if the two of you agree, you may be able to both complete the adoption and write separation and parenting agreements that spell out what will happen in custody, visitation and a range of financial and other matters in case you split up. One question is whether courts in a given state would recognize such agreements. Also, negotiating such agreements may be difficult or easy, depending on how much you agree on things. Couples often struggle with these issues, and you may find it helpful to use a therapist or mediator to work through these issues. I strongly recommend that you hire attorneys experienced in these matters to help with the adoption and any other agreements you may wish to execute. To find an attorney in your state, visit the attorney referral services list.
Best of luck to you and your family.
Sincerely,
Liz Seaton
Seaton is deputy field director and staff counsel for the Human Rights Campaign.
April 1, 2002