Who Is The Parent?

A question that comes up often when discussing parenting partnershipss is about the legality of the parents. Who is considered a parent? With so many varieties of parents – single parenthood, same-sex couples, multiple parent families and parenting partnerships being the norm now, Judges and lawmakers are being forced to hurry up and catch up to the rest of the world. When a person is legally determined to be a parent, that adult has the right to make decisions on behalf of their child’s health, educations and general welfare. For a parent who is not legally recognized, this could be very problematic. With so many open-ended options for parenting partnerships, it’s extremely important to discuss the legalities of your State with your partner. Can two people in a non-romantic relationship adopt jointly? Will a known sperm donor be considered the biological father if the procedure is performed at a medical facility or at home? These are just two examples of questions that need to be addressed when considering a parenting partnership.

The below was taken from our “Learn” section of our website.

State laws which determine who is a parent vary considerably, and different states may take different approaches. There are three main ways laws identify who is a parent – biology, intention and function.

Biology.  The most obvious method of proving one’s parentage derives from a provable genetic connection to the child.

Related to the biological connection to parentage is the “marital presumption”.  Someone can be legally assumed to be the parent by being married to the child’s mother. Some states extend this presumption to a couple in a civil union or a domestic partnership. In a further expansion of the law, now a number of states extend this presumption to unmarried cohabitating couples as well.

In addition, even if the mother and the father are not married, if they properly complete and do not rescind a voluntary acknowledgement of paternity with the state authorities where they live, they will be the legal parents of the child.

Intention. The legal rights generally provided by a biological connection can also be erased through the intention of the parties. The agreement to use assisted reproductive technology to create a family, such as artificial insemination, egg donation or embryo donation, can undercut the genetic link as a means of legally establishing parentage.

Under certain circumstances, a sperm donor or egg donor can release all rights to claim parentage. To accomplish that surrender of parental rights, the state laws, if they allow for this option, have to be strictly followed.  The laws from state to state can differ widely. Under many states’ laws and certain fact patterns or state laws, there can be no surrender of a biological parent’s rights by contract.

Some courts and statutes recognize that parentage will be determined by the intent of the parties in creating the child, not by who provided the gametes or embryo or who gestated the child. In these cases, it would be especially helpful to have a written agreement signed by all parties.

Function.  There are the situations where an adult functions as a parent without having any genetic connection to a child and who may not have participated in the initial decision to have a child.  Yet, that adult holds out the child as her/his own, provides the child love and financial support, and bonds with the child with the consent of the legally recognized parent.

Legislators and courts have started to recognize these “de facto” or “psychological” parents and have awarded those parents rights and responsibilities.  Stepparents may qualify in this category.

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