Interstate Recognition of Same-Sex Parents in the Wake of Gay Marriage, Civil Unions, and Domestic Partnerships

Abstract

This Article examines the parental rights of a same-sex partner/spouse who is neither biologically related to, nor an adoptive parent of, a child being raised by the couple. Using a hypothetical example of a same-sex couple with one child, this Article explores whether the parental rights granted to a non-biological parent by marriage, civil union, or domestic partnership can and will survive a move to another state that does not explicitly recognize such same-sex relationships. Relying on statutory and common law precedents, this Article argues that even in those jurisdictions that have enacted a mini- Defense of Marriage Act, parental rights likely can survive the invalidation of a same-sex relationship because the Uniform Parentage Act, precedents regarding the legitimacy of children, and general choice of law principles all provide potent arguments for advocates seeking to preserve the parental rights of the same-sex partner.