Massachusetts legalized same-sex marriage in 2003, and while that was a landmark decision, making Massachusetts the first state in the country to legalize same-sex marriage, it did little to define parenthood within these types of marriages. It wasn’t until February 2012 that the Massachusetts Appeals Court ruled children born to married same-sex couples would be presumed to be the legal child of both of the parents.

This ruling, however, only applied to couples who were married at the time of the child’s birth. This protection is not available to same-sex couples who are not married at the time of the child’s birth. Although the couple may have jointly participated in the decision to have and expected to share parental responsibility for the child, the birth mother is considered the only legal parent.

This situation can be remedied through a co-parent adoption in which the parent who gave birth and her partner petition the court to have the other parent legally adopt the child.

Problems arise most frequently when the parent who did not give birth to the child never legally adopts the child. Without going through the formal adoption process the non-birth parent has no legal rights to see the child or make decisions regarding the child’s life if the couple breaks up.

If there is a breakdown in the relationship and the non-birth parent wishes to remain in the child’s life against the wishes of the birth parent the only remedy left to is to file a Petition in Equity and seek De Facto Parent status.

A De Facto Parent was defined by the court in E.N.O. v. L.M.M., 429 Mass. 824 (1999) as:

“One who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”

While the courts have clearly recognized the role of a de facto parent in a child’s life a de facto parent is still not afforded the same rights as a legal parent. In the E.N.O v. L.M.M., the non-legal parent was eventually award visitation with the child, but was not awarded legal custody.

Legal custody is important for many reasons, but most relevant to this topic, it gives a parent the right to be involved in major life decisions relating to the care of the child, including, medical treatment, religious instruction, education and life-style.

There have various other cases dealing with this of de facto parenting, but none of them have awarded legal custody to the de facto parent. In A.H. v. M.P., 447 Mass. 828 (2006), the court reasoned that legal custody might be established in a cases where the non-legal parent can show at least as much care-taking as the birth parent.

In most marriages it is unrealistic to think that there is going to be an equal division of parenting. Many of us strive for that percentage, but the reality is that parenting isn’t the only role that needs to be filled in a marriage or partnership, and we divide tasks according to our strengths. Where one parent takes on more of the financial burdens of a household many of us wouldn’t think that makes the parent any less of parent to the child, and in a traditional heterosexual relationship this would not be the standard use in reaching a custody determination. The A.H. v. M.P., case was decided in 2006 and since that time no de facto has been able to reach this incredibly high burden and gain custody of their child.

Adoption is not only important for the non-legal parent. The birth parent should also be concerned about the ramifications of not having their partner adopt the child they decided to have together. If the non-legal parent does not adopt the child then they do not have a financial obligation to support the child, which means that if there is a break-up the non-legal parent does not have to pay child support, pay for any daycare costs, or any educational costs for the child.

While the laws on same-sex marriage and parenting have come a long way in Massachusetts there is still a considerable amount of progress that needs to be made, and if you are in a same-sex relationship the unfortunate reality is that you may need to take additional steps to prove to the world and courts that you are the child’s parents.

On a happier note, however, co-parent adoptions in the context described above, where the sperm/egg donor are anonymous, is a relatively simple process. If you are considering having a child with your partner or have already made the decision you need to know your rights so you can protect yourself and your child’s future.