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Parentage and COVID-19

New England FAQs & Resources

Parents are juggling multiple responsibilities and heartbreaking worries during this public health crisis. LGBTQ parents may have specific questions and concerns, especially if there is any uncertainty about their legal status as parents.* To help answer these questions we’ve put together the following FAQ and resources for LGBTQ parents in New England.

For married LGBTQ people whose child or children were born during the marriage, both parents will be recognized as parents within each New England state under a marital presumption of parentage. For non-marital parents, additional steps are needed to ensure the non-birth parent is recognized as a parent. We describe these steps below.

If you are not being recognized as your child’s parent or if you experience barriers to making decisions for your child, please contact our GLAD Answers hotline at www.GLADAnswers.org. You can also contact GLAD Answers for lawyer and other referrals, or if you have a question you don’t see below.  This is just a beginning, and it is no substitute for individualized legal advice.

 

Parentage

What is parentage?

Parentage refers to the legal parent-child relationship, and this legal bond is core to a child’s stability and security. Legal parentage comes with a number of rights such as decision-making, custody, and parenting time, and. It also comes with a number of responsibilities such as providing care, financial support, and health insurance.

Am I a legal parent?  How do I know? 

There are many ways to become a legal parent depending on your circumstances.

Adoption:  If you have adopted your child, and you have a court decree of adoption, you are their legal parent.

Birth:  If you have given birth to your child, unless you are serving as a gestational carrier, you are presumed to be their legal parent.

Marriage:  If you are married to the birth parent, and your child is born while you are married, you are the presumed second parent.  Your name will be listed as the second parent on the birth certificate.  Within the New England state where you live, the marital presumption of parentage will provide security to your parent-child relationship and you will be able to make decisions about your child and exercise all parental rights.  To ensure security of your parentage in all jurisdictions because not all jurisdictions may recognize a marital presumption for non-genetic parents, it is best practice to secure your parentage through a court decree like an adoption or by signing a Voluntary Acknowledgment of Parentage (VAP) form when you are able (see below).

Voluntary Acknowledgment of Parentage:  If you and the child’s birth parent have signed a valid Voluntary Acknowledgment of Parentage (“VAP”) form, you are the other legal parent. A VAP is a simple form you can sign in the hospital (or afterward!), and it is the legal equivalent of a court decree of parentage.  Once you sign a VAP form, your parentage will be reflected on your child’s birth certificate.  LGBTQ and non-genetic parents can sign VAP forms to establish their parentage in Massachusetts (unmarried parents; see the Massachusetts VAP form)and Vermont (unmarried and married parents; access the Vermont VAP form)  

Conduct:  In all New England states except for Connecticut you can be a legal parent if you have acted like a parent. Each state has a different standard.  For example, Maine, Massachusetts, New Hampshire and Vermont recognize “holding out” parentage or a non-marital presumption of parentage for people who have acted as a parent.  Maine, Massachusetts, Rhode Island, and Vermont also recognize “de facto” parentage which provides a way for people to protect relationships with children for whom they have acted as parents.  To establish yourself as a parent by conduct, you need to file an action in court (except for Massachusetts and Vermont, which allow holding out parents to sign VAP forms). 

Genetic relationship:  If you are genetically connected to your child and are not a sperm or egg donor, then you can be a legal parent of your child.  If you are not married, to establish your legal parentage, you need to sign a VAP form or file an action in court.

If you have any questions about whether you are a legal parent or how you can establish your legal parentage, you can reach out to GLAD Answers for further information including family law attorney referrals.

If my child was born during my marriage, is my parentage protected? 

Generally yes.  If your child is born when you are married to their birth parent, you are the child’s parent because all New England states^ have a marital presumption of parentage.  You should be listed as a parent on your child’s birth certificate.  Within the New England state where you live, the marital presumption of parentage will provide security to your parent-child relationship, and you will be able to make decisions about your child and exercise all parental rights.  To ensure security in all jurisdictions, it is best practice to secure your parentage through a court decree like an adoption or by signing a VAP form when you are able.

Does it matter when we got married?

As long as you marry before your child is born, you will be protected by the marital presumption.+

If my partner and I are unmarried, is my parentage protected?

Maybe. Action is required to ensure your legal parentage is protected.

If you live in Massachusetts or Vermont, you may be able to establish your parentage out of court by signing a VAP form.  Forms can be accessed above.

If you live in other states or if you can’t sign a VAP form because your partner won’t agree or otherwise, then, depending on your circumstances, you can file a court action to establish your legal parentage.

Legal assistance can be really important for non-birth, non-marital parents to establish their legal parentage, and GLAD is deeply committed to protecting children born to unmarried parents.  For legal information and referrals, contact GLAD Answers.

Also, times of crisis like this are a reminder to our whole LGBTQ community to put children and their needs first and to work together to ensure that children remain connected to their parents, regardless of legal status.  Disagreements between adults should never mean that a child loses access to a beloved parent.  Parents and lawyers can take a pledge to protect parent-child relationships and to not use greater legal power against non-legal parents.  Sign that pledge here.

Can I establish legal parentage of my child without going to court?

In some states.  There are two ways to establish legal parentage without going to court: a Voluntary Acknowledgment of Parentage (“VAP”) and marriage.

A VAP is a form that can be signed by a birth parent and another person to establish the other person as a legal parent.  By federal law, a valid VAP form is the equivalent of a court decree of parentage and should be recognized in all states.  A VAP form can be signed at birth in the hospital or at any time after birth.  No court action is required.

VAP forms are usually used to establish the parentage of children born to unmarried, different-sex couples who are both genetically connected to the child.

However, VAP forms are available to LGBTQ families in some New England states .  If the non-birth parent is not genetically related to the child but the child was born through assisted reproduction, the non-birth parent can sign a VAP form in Vermont (married and unmarried people) and Massachusetts (unmarried people).

If you are married to the birth parent, you are automatically presumed to be the second parent.  In some states, such as Massachusetts, if you have agreed to assisted reproduction and your child is born into your marriage, you are established as the child’s second legal parent.  See G. L. c. 46, § 4B.

 

Decision-Making

How can I make sure that my partner can make decisions for my child if I am sick and unable to make those decisions myself? 

If your partner is a legal parent to your child, then state laws provide that they are able to make legal decisions for your child if you are sick or unable to make decisions yourself.  (If you and your partner are separated or divorced, different rules may apply.)

If you or your partner are not a legal parent, then you can take steps to ensure that you or your partner are able to make decisions for your child if the legal parent is unable to do so.

  • Massachusetts allows a parent to sign a caregiver authorization affidavit, which is a simple form that, when signed, witnessed and notarized,** allows a non-parent to make health and medical care decisions for a child. More information is available (information and form).
  • Legal parents can execute a power of attorney to nominate a guardian for their child if necessary and to make it clear who can make decisions for their child if they are unable to do so. This is a legal document that can be done with the help of an attorney.  These types of attorneys are called estate planners.  GLADAnswers can provide referrals.

What happens if both or all parents of our child are too sick to care for our child and are hospitalized?

  • Again, Massachusetts has a way for parents to designate alternate caregivers for children out of court (see caregiver authorization above), and a power of attorney document in other states can also be helpful to make it clear who you want to take care of your child.
  • If you are not able to execute a power of attorney, you can make a plan with a family member or friend who you want to take care of your child in an emergency. You should write down your plan (even an email or text may be help to show your plan or intent) so that there is a written record of who you want to take care of your child in case your friend or family member needs to seek formal guardianship in court.  Your family member or friend can seek guardianship in the courts on an emergency basis.  It is a good idea to have a back-up plan for your child. The links to court guardianship forms for all New England states are below:

How can I designate someone to take care of my child if I die? 

If you die and your child has another legal parent, then that legal parent automatically has the right to the care and custody of your child.

It is a good idea for every parent to have a will which is a legal document that states, among other things, who you want to care for your child in the event of your death.  Wills are formal legal documents, and each state has specific requirements for how a will is written and signed.  It is a good idea to have a lawyer in your state help you draft and sign a will.  Please contact GLADAnswers.org for referrals for lawyers who draft wills.

What if I need court relief?  What is the status of family courts during the COVID-19 crisis?

During the COVID-19 crisis, there is reduced access to courts except for emergencies.  Emergencies related to the custody of a child – such as emergency guardianships –  should be heard.  If you have questions, you should contact the local court and/or local practitioners for the most up to date information. Here are links to information about the status of family courts in the New England states.

If you are experiencing an emergency about legal parentage, you can contact GLAD Answers for information and attorney referrals.

 

Notes

If you and your child’s legal parent are separated or divorced, things might be more complicated.  Every family’s situation is different.  For referrals to family lawyers who may be able to help, please contact GLAD Answers.

* GLAD is advocating across New England to make sure there are clear and accessible paths for all children to have a secure legal relationship with their parents, regardless of the parents’ gender, marital status, or the circumstances of the child’s birth.

For more information on specific state advocacy and pending legislation:

^ Connecticut does not have a statutory marital presumption of parentage like other New England states, but there is a trial court level case that applies the marital presumption to LGBTQ parents.  See Barse v. Pasternak, 2015 Conn. Super. LEXIS 142 (2015).

+ Some states also apply the protection of the marital presumption if you marry the birth parent after birth of the child.  In those cases, the non-birth parent needs to take action to establish their parentage and to amend the birth certificate to reflect they are the second parent.

** Notarization usually requires an in person meeting. Some states may waive these requirements during this time so check with your local practitioners. We will update this information as it develops.