Just Who Is A Legal Parent?

One key question we get from prospective parents is: Just who is a parent?  That determination is generally controlled by state law. When a person is legally determined to be a parent, that adult has the right to live with the child and has the right to make decisions about the child’s health, education and general welfare.

Without a legally recognized relationship between parent and child, both the adult functioning as a parent and the child are at risk. For example, the legally unrecognized parent may be unable to insure the child on her/his medical insurance plan.  The child may be foreclosed from inheriting as the child of the unrecognized parent who dies without a will, and any inheritance may be subject to inheritance taxes.  Further, the child may not be eligible for benefits such as Social Security, workers compensation and wrongful death claims.

The unprotected adult risks that another adult with a legally recognized relationship with the child could seek to prevent contact with the child and to disavow any bonded, ongoing parent-child relationship. Or, if the adult with the legally recognized relationship dies, the unprotected adult may be precluded from maintaining contact with the child.

In the 21st Century, parents come in a variety of ways.  In addition to co-parenting, single parenthood, same-sex couples having children and multiple parent families are becoming common. Judges and lawmakers are being forced to play catch up in creating laws to reflect new family structures.

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.

What do these different ways of legally recognizing a parent – biology, intent, and function – mean in terms of what you should do when co-parenting or engaging with a known sperm or egg donor?  In all these instances, it is important to:

1)      Have a clear, written, agreement among the parties as to the role each party will or will not have in the child’s life;

2)     Know the laws of the state where you live and how your plans mesh with the laws of the state;

3)     If a new adult is introduced into the life of the child, develop a clear and agreed upon understanding as to that adult’s role; and

4)     Make sure that, if legally possible in the state where the parent and child reside, any adult functioning as a parent establishes a legally recognized parent-child relationship.

One important note that FamilyByDesign wishes to emphasize is that any approach to co-parenting should combine planning with flexibility. Even with the best thought- through plans written in advance, the birth of the child will change the lives of everyone involved in the family’s relationships.  Not everything can be predicted.  So, it is important for parenting partners to remain flexible and to be guided by what is in the best interest of the child.