For most LGBT parents, it took careful planning, deliberate action, and financial commitment to create their families. LGBT parents must do the same careful planning, deliberate action, and financial commitment to protect their families.
This LGBT Parenting series explores the ways that non-traditional families can take action to put legal protections into place. My first blog article, "Key Takeaway from LGBT Parenting Seminar: Take Action!", gives an overview of the legal protections available. My second article, LGBT Parenting: Shared Custody, discusses Shared Custody as an important option to protect same-sex parents who are not married. My third article, LGBT Parenting: Step-Parent Adoption, explains why Step-Parent Adoption should be pursued by married same-sex parents. This final article addresses a second option available for some married couples in Ohio: filing a Petition to Establish Parentage in Juvenile Court.
LGBT Parenting: Petition to Establish Parentage
You may know that Step-Parent Adoption is available in Ohio for all LGBT parents who are married.* In certain counties in Ohio, however, a Juvenile Court action is a second option for LGBT parents who were married at the time their child was born.# The parent who did not give birth to the child or did not adopt the child (the "second parent") can file a Petition to Establish Parentage in Juvenile Court. The case to establish the parental rights of the second parent in Juvenile Court is referred to as a "parentage action." Parentage actions in Ohio are allowed because of the parents' marriage. The second parent's marriage to the biological/adoptive parent entitles the second parent to be treated in law and regarded as the minor child's second natural parent pursuant to Ohio Revised Code 3111.88.#
The advantage of a parentage action is that the second parent can secure his/her legal, parental rights to the child without all of the intrusiveness and requirements of an adoption. For example, there is typically no fingerprinting of the second parent in a parentage action, nor is there a home visit/study. Financial records typically do not have to be disclosed to the Court like in an adoption, and the second parent does not have to submit letters of reference.
The disadvantage of a parentage action is that is available to married LGBT couples in a very small number of counties in Ohio. Franklin County has been granting them for a couple of years, and Cuyahoga County has been accepting these cases since April 2017. There may be other Juvenile Courts granting these actions, but Franklin and Cuyahoga Counties are the ones that I am familiar with. Many Juvenile Judges around the state are not familiar with same-sex parentage actions and/or have not had any such cases filed in their courts.
To establish his/her parental rights in Cuyahoga County Juvenile Court, the other parent must file a Petition to Establish Parentage, a Non-Spousal Artificial Insemination Affidavit, and and Agreed Judge Entry and Order. After the petition is filed, a hearing is held at Juvenile Court in order for the judge to rule on the parentage action. Once the petition is granted, the other parent has full legal rights to his/her child and can have his/her name added to the child's birth certificate, if it is not listed on the birth certificate already.
As with a Step-Parent Adoption, the biological or adoptive parent does not lose any legal rights in a parentage action. The end result is beautiful: the child now has two legal, forever parents.
Remember: Adding Your Name to the Birth Certificate Is NOT Enough
In Ohio, if a same-sex couple is legally married at the time the baby is born, both parents' names can be added to the baby's birth certificate. However, that is NOT enough! The Ohio Statutes concerning parentage typically refer only to a “father” and “mother.” This is problematic for two mothers or two fathers, of course. That's why I strongly recommend that married same-sex couples pursue a Step-Parent Adoption or parentage action for the non-bio/non-adoptive parent. It's best to have a court order which establishes full legal rights for the second parent.
*If a known donor was used to conceive, the donor's consent must be obtained in writing before filing in Probate Court.
#If a known donor was used to conceive, please consult with an attorney experienced with parentage actions for same-sex parents.