By Emilee Gehling
A judge in Nebraska has refused to acknowledge two mothers on the birth certificates of their children.
See the news article here:
An Omaha couple whose relationship began and ended prior to the legalization of same-sex marriage in Nebraska had two sons. Each mother carried one child who was conceived through a sperm donor. Since same-sex marriage was not yet legal in the state, the women did not get married. Their romantic relationship ended, but they have continued to co-parent their sons. The women have repeatedly requested the Nebraska Department of Health and Human Services to amend one of their sons’ birth certificate to reflect both of their names as parents. The women are rightfully concerned, as courts have denied the parental rights of non-genetic parents when the parentage was not legally established, even in the case of a married couple. In re T.J.S., 16 A.3d 386, 388 (N.J. Super. Ct. App. Div. 2011). In In re T.J.S., the appellate court in New Jersey did not apply the parental presumption of legal parenthood to the wife of a biological father of a child born via gestational surrogate. Therefore, in many cases, a non-genetic parent is smart to seek a court order confirming his or her parentage through step-parent adoption. Our firm has been successful to establish parentage of the non-genetic parent of children born to the genetic parent and through surrogacy in Nebraska and other states, through step-parent adoption. Confirmation of parentage confirms that inheritance rights between the parent and child exist, and it ensures the child access to a parent’s benefits, such as government benefits, veterans’ benefits, private insurance, and even things like FMLA leave if the child becomes ill. These are really important benefits that most parents are able to take for granted.
The problem in the case of the Omaha couple is that they were not allowed to be legally married when their relationship existed, and so step-parent adoption was not available to them. They have since split up, and so they will remain unmarried to each other. Thus, step-parent adoption will continue to be an unavailable option. The women, with the help of the Nebraska Chapter of the American Civil Liberties Union, sued the Nebraska Department of Health and Human Services, arguing that the state treats unmarried same-sex couples differently than unmarried opposite-sex couples with regard to the issuance of birth certificates, and that this different treatment violates their due process and equal protection rights. A man can sign an Acknowledgment of Paternity, and his name will be placed on a child’s birth certificate, even if he is not married to the genetic mother. A woman had no such path to acknowledge her maternity when these boys were born. Nebraska has since enacted a procedure for acknowledgement of maternity (in addition to the well-established acknowledgement of paternity) for children born via surrogate. However, the Court ruled that the women did not prove that there was a precedent case that adopted their constitutional arguments, and that the issue was a policy decision for the legislature.
For more information about what is best for your 'non-traditional' family to establish legal parentage, contact our firm.