A Stranger in the Eyes of the Court

How the Judicial System is Failing to Protect Nonbiological LGBTQ Parents

Until the Supreme Court decision in Obergefell v. Hodges, LGBTQ people were constitutionally barred from marrying the person they loved. This lack of constitutionality, however, did not stop many LGBTQ couples from living together, loving one another, and having children. But because marriage was illegal for these couples, many LGBTQ parents were not recognized as their child’s legal parent. This lack of legally recognized parentage has caused significant issues for several LGBTQ couples who had children together but separated before Obergefell. Similarly, even after Obergefell, nonbiological LGBTQ parents who have not married run the risk of court saying that they are not their child’s legal parent.

This Note argues that current legal doctrines traditionally applied to determine parentage, such as equitable adoption and de facto parentage, fail to address the unique needs of nonbiological LGBTQ parents who either could not marry before Obergefell or who have not chosen to marry post-Obergefell. The common law has, understandably, been crafted around heterosexual parents, and therefore has heavily relied on genetics when determining parentage. This reliance on genetics requires states to take legislative action to develop a statutory approach to parentage that looks beyond genetics to address the needs of LGBTQ couples, specifically nonbiological LGBTQ parents. No parent should be viewed as a stranger to their child in the eyes of the court.

The full text of this Note is available to download as a PDF.