Ensuring Parental Rights: What to Know If You Were Married Pre-Obergefell

For LGBTQIA+ couples married before the landmark Obergefell v. Hodges decision, securing legal recognition of parental rights is a critical step. This guide outlines key legal considerations and the steps necessary to safeguard your family’s rights.

The Importance of Birth Certificates and Marriage Certificates

Many pre-Obergefell families face gaps in documentation due to varying state laws before same-sex marriage was recognized nationwide. A correctly updated birth certificate ensures both parents are recognized as legal guardians, streamlining parental rights and responsibilities.

Understanding the Marital Presumption of Parenthood

The “marital presumption” is a longstanding legal principle derived from English common law. Historically, it was presumed that a child born to a married couple was the child of both spouses. Now, this presumption can be rebutted with DNA testing, etc. But until there is an affirmative motion in the courts, the presumption will stand. Thanks to Obergefell, the Supreme Court of the United States extended the “Marital Presumption” under Equal Treatment under the Law and Due Process principles to Same-Sex Couples.

In states like Ohio, this presumption was updated post-Obergefell to include married same-sex couples. However, if your marriage from another state predates this ruling and your child’s Ohio birth certificate does not reflect both parents, you may need to take additional legal steps to affirm your rights called a “Second Parent Determination” filed in the Juvenile Courts.

Securing Legal Recognition

Post-Obergefell, many couples worked with courts to update birth certificates and solidify parental rights. Attorneys often relied on surrogacy laws, arguing that the same protections applied to same-sex couples who used assisted reproductive technologies.

Initially, juvenile courts handled these cases, granting second-parent determinations to update birth certificates. Over time, as the legal framework evolved, courts increasingly deferred to the marital presumption and stopped requiring these extra steps if both parents were already listed.

For couples facing discrepancies on birth certificates, probate courts became an alternative option. Through processes like stepparent adoptions or other legal mechanisms, courts can issue orders ensuring clear and indisputable parental rights.

What If Everything Seems in Order?

If your birth certificate and marriage certificate already reflect your family structure, you may wonder if there’s more to do. While legal systems have largely caught up post-Obergefell, it’s still wise

to consider additional protections, such as estate and emergency planning.

Estate and Emergency Planning for LGBTQIA+ Families

Estate planning was a cornerstone of LGBTQIA+ family protection before marriage equality. It remains an essential tool for safeguarding your family today. Consider:

       – Wills and Trusts: Clearly designate your child and spouse as beneficiaries.

       – Powers of Attorney: Establish who can make medical and financial decisions on your behalf in emergencies.

       – Guardianship Documents: Specify guardianship arrangements for your child in case of unforeseen circumstances.

These measures create legal certainty, ensuring your family’s rights and wishes are honored, regardless of external challenges.

Final Thoughts

If you were married before Obergefell and have children, reviewing and updating your legal documents is vital. While marriage equality has improved protections, gaps remain, especially for families formed before these legal changes. Consulting with an attorney experienced in LGBTQIA+ family law can help ensure your parental rights are fully recognized and your family’s future is secure.

By taking proactive steps, you not only protect your family but also honor the legacy of advocacy that made marriage equality possible.

Consultation is Key

Navigating these processes can be complex, and laws vary by state. It’s critical to consult with a family law attorney who is knowledgeable in LGBTQIA+ legal matters to ensure your family’s unique needs are addressed. Ready to meet? Here is a link to my updated Calendar where you can schedule your free 30-minute consultation now:

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