You and your partner have a child together. You are raising that child together, and that child knows and loves both of you as parents. One of you is the biological parent, and the other is not. Your child doesn’t know or care about that, and your duties, as parents, are not greater or less, on the whole, because of your biological connection, or lack of the same, to the child. And in general, parenthood is far too exhausting to care about something as esoteric as the legalization of your relationship to the child you care for every day, and love more than life, so why adopt your own child?
To answer a question with another question (or three): What if the bio-parent dies, or divorces you? What if the bio-parent becomes so disabled as to be unable to participate in parenting? What if the bio-parent adopts such bizarre (or even dangerous) behavior that you feel at some point compelled to assert yourself and object? Until the state of the law catches up with the state of society, the better practice for same sex couples, is for the non-biological parent to judicially adopt the child of the couple, so that there is no question as the parental rights of both parents.
The state of the law in New York, and likely in the rest of the country, is still evolving for the LGBTQ community. Birth certificates, for instance, read “father” and “mother.” Laws relating to parental rights when a married woman conceives by insemination refer to her “husband.” Is it as simple as making the nouns gender neutral? Will the courts expand that standard to the non-bio wives of same-sex couples? No answer on those questions yet.
Increasingly, the rights of the non-bio parents are advancing, but they are not guaranteed. In two very recent cases, courts have recognized the standing of unmarried non-bio parents to assert parental rights when the parties split up. Until 2016, non-bio parents were considered parental “strangers” to the child, without standing to assert parental rights, which meant that they had basically no rights at all. However, conferring standing on a non-bio parent just means that he or she has the right to bring a claim to court for asserting parental rights, but the court, after hearing from all the parties, including the bio-parent, makes the final decision.
While the courts also have the same power over biological parents, being that a court is always the final arbiter of what is in the best interests of the child, the bio-parent is presumed to have parental rights until someone else demonstrates that he or she is unfit. The non-bio parent now has standing to assert his or her rights, but there is no similar presumption. The non-bio parent must prove his or her fitness to the court to establish parental rights; the bio-parent has parental rights until someone else proves that he or she is unfit. The parents are not equal before the court. Until they are, LBGTQ parents must go the extra mile, as always.