The short answer is no, same-sex couples who are legally married (and were married when the child was born) do not need to get a second parent adoption in order to protect both parents’ rights. This issue typically arises when a same-sex couple chooses to welcome a child into their family through some form of Alternative Reproductive Technology where one parent, but not the other, is the actual biological parent of the child (i.e. Artificial Insemination, Surrogacy, etc.).
In 2013, the U.S. Supreme Court found that a provision of the Defense of Marriage Act (DOMA) was unconstitutional because it singled out same sex marriages and refused to treat them equally under federal law. United States v. Windsor, 133 S. Ct. 2675 (2013). As a result, the federal government began to recognize same-sex marriage. In 2015, the U.S. Supreme Court also held that states must also recognize same-sex marriage in the same way as opposite-sex couples. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
What does this mean for same-sex parents in Minnesota?
Minnesota law has a presumption of paternity for married couples. See Minn. Stat. § 257.55, Subd. 1a.. Basically, if a couple is married, and the child is born during the marriage, the law recognizes that they are the biological parents of the child. However, the relevant statute reads:
“[a] man is presumed to be the biological father of a child if […] he and the child’s biological mother are or have been married to each other and the child is born during the marriage…”
Minn. Stat. § 257.55, Subd. 1a. (Emphasis Added).
As the statute shows, the law contains gender specific language that could prevent the presumption of parentage from applying to same-sex couples. Fear not, the Minnesota legislature enacted a statute that requires a gender-neutral reading of any laws that deal with “the rights and responsibilities of spouses or parents in a civil marriage between persons of the same sex under the laws of this state, including those that establish parentage presumptions.” Minn. Stat. § 517.201, Subd. 2.
As a result, same-sex couples or couples within the LGBT community no longer need to pursue a second-parent adoption in most situations. In other words, the presumption of parentage applies to both opposite-sex and same-sex/LGBT parents.
If you have any questions about second-parent adoption or same-sex parent adoption, please call me today at 952-800-2025 or reach out via our online contact form to set up your free consultation.
