Parental Rights of Homosexual Couple May Be Unresolved After Justices’ Ruling

© Michael F. McElroy for The New York Times Jessica, left, and Melissa Tincher, residents of Lexington, Ohio, married last June in Indiana. Because marriage is not fully recognized in Ohio, only one parent — Jessica — was permitted to adopt the four biological siblings who came to them through the foster care system.
© Michael F. McElroy for The New York Times
Jessica, left, and Melissa Tincher, residents of Lexington, Ohio, married last June in Indiana. Because marriage is not fully recognized in Ohio, only one parent — Jessica — was permitted to adopt the four biological siblings who came to them through the foster care system.

When Jessica and Melissa Tincher take the four-hour road trip from their home in Lexington, Ohio, to visit relatives in Indiana, it is a two-vehicle affair: They need car seats for each of their four children — a 4-year-old, a 3-year-old and 2-year-old twins — along with Pack ’n Plays, high chairs, diapers and enough toys to keep everyone entertained. And then there are the two dogs, who together weigh 165 pounds.

But as their caravan crosses state lines, the family’s relationship changes. In Ohio, their marriage is not fully recognized, which is why only one parent — Jessica — was permitted to adopt the four biological siblings who came to them through the foster care system. When they drive into Indiana, where they were both raised and married last June, the couple’s union is valid, but Melissa still does not have any parental rights.

They live in Ohio because Jessica’s job as an air traffic controller is there. So Melissa, who stays home to care for the children, must carry around a permission slip of sorts when she takes them to the doctor or other appointments. “I am with them all day every day,” Melissa said. “I take care of their day-to-day needs, and I have no rights to them legally. It’s hurtful.”

If same-sex marriage is legalized nationwide as part of the monumental case before the Supreme Court — a decision is expected this month — married couples living in states that do not acknowledge their unions will gain significant financial and legal benefits.

But as sweeping as the changes will be, one aspect of marriage may not always be automatically guaranteed: parental rights.

“Marriage does not solve all,” said Emily Hecht-McGowan, director of public policy at the Family Equality Council. “It provides innumerable protections, rights and responsibilities to married couples and parents raising children in a marriage. But it doesn’t come close to solving all of the legal and recognition issues that same-sex couples and their children face.”

Family law varies in different states, which is why the advice to same-sex couples will remain the same: Nonbiological parents wishing to fully cement legal relationships with their children may need to take another step like adopting or securing another court-ordered judgment. Fortunately, if the court rules in their favor, gay couples would for the first time be able to widely adopt children regardless of which state they live in.

The right to adopt would provide a profound sense of relief to the Tinchers, along with same-sex households across the country, because it would largely end the inequality for many couples whose children have legal ties to only one parent.

Now, only individuals or couples whose marriages are legally recognized can generally adopt children in most states. That means same-sex couples can adopt in at least 35 states that issue marriage licenses to same-sex couples, along with the District of Columbia, according to an analysis by the Movement Advancement Project, though a minority of states have allowed unmarried couples to adopt. With a court ruling legalizing same-sex marriage, the report said, married couples would generally be permitted to adopt in all states but one, Mississippi, which expressly bars couples of the same gender from doing so.

National marriage status could also provide another way to create legal ties to children, although it may be more tenuous in some states. Traditionally, children born to a married woman are generally presumed to be the legal children of her husband. Many states also have laws that say the husband of a woman who is artificially inseminated with donor sperm is the child’s legal father, if he consents to the procedure. Those laws also apply to two married women in many states, but it is unclear whether all states will adopt that position if same-sex marriage is legalized nationwide.

“There may be some state agencies or others who may challenge that,” said Leslie Cooper, senior staff attorney at the American Civil Liberties Union, co-counsel in two of the marriage cases pending before the Supreme Court.

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SOURCE: The New York Times
Tara Siegel Bernard

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