Parental and paternal LGBT rights in Washington

On behalf of Mark Hodgson at Hodgson Law Office

Same-sex couples are beginning to receive equal treatment under the law. Marriage equality has come to everyone in the U.S.

But that is not to say legal issues do not exist for same-sex couples, especially when it comes to family rights outside of marriage equality. For example, it is still legal for private adoption agencies to refuse to allow same-sex couples to adopt in Washington. In addition, Washington law does not restrict discrimination when it comes to same-sex couples wishing to care for foster children.

Custody issues a developing area of the law

Also common in the state are parental and paternal custody rights issues involving LGBT parents. In Washington, there is no "custody" or "visitation" commonly referred to in other states. Instead, parents agree to a Parenting Plan or Residential Schedule.

But for same-sex couples who have adopted, had children through in-vitro fertilization or other method, or had children by a previous relationship, complications can quickly arise, especially for the non-biological, non-adoptive or non-carrying parent.

If you are in a same-sex relationship and have children, issues of parental rights can become paramount in a split, both for married and co-habiting same-sex couples. Below is a brief overview of some of the rights granted to same-sex non-biological parents in Washington.

My partner carried our child while we were married or registered domestic partners. Do I have "paternal" rights?

Yes. Married couples who give birth to a child are the presumed parents, and have all of the legal rights and obligations associated with legal parentage, including the right to spend time and live with the child, and have the obligation to support the child financially.

My partner carried our child but we are not married. Do I have "paternal" rights?

There is no presumption of parental rights under these circumstances. If you still have a positive relationship with your partner, however, you could be petition for a second-parent adoption, which you grant you all of the rights of legal parenthood.

My partner/spouse has a child from a previous relationship. Am I a legal parent now that we're married?

See above regarding second-parent/stepparent adoption.

But I am a parent to my child in every way but biologically. What are my rights?

Fortunately, it is possible for a parent to show a court that he or she is a "de facto" parent. While this area of the law is still developing and subject to change, if you can show that:

  • You have a "parent-like" relationship
  • The relationship was encouraged by the biological or adoptive parent
  • You lived with the child
  • You cared for the child without monetary compensation
  • You have developed a bonded and dependent relationship with the child
  • You have "fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life"

The Washington Supreme Court established these factors in a case arising in 2005 (In re the Matter of the Parentage of L.B.).

More questions? Contact Hodgson Law Office

At Hodgson Law Office, family law attorney Mark D. Hodgson helps families establish parenting plans, modify existing plans, and adopt children. Contact Hodgson Law Office to discuss your situation and legal options.