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Is marriage enough to protect same-sex spouses' parental rights?

Once marriage became equally available to opposite- and same-sex couples, many people assumed that all of family law was now LGBTQ-friendly. While it is true that the U.S. Supreme Court's decisions on same-sex marriage mandated equal protection for all, you may not realize how limited equal protection can be.

Here in Colorado, according to the nonprofit group The Center, the legislature still needs to bring our family law statutes into alignment with the high court's rulings. Moreover, revising the law may not put all same-sex couples in the same legal position as married couples. Instead, married same-sex couples may be treated as if they were a biological parent and a stepparent rather than equivalent to two biological parents. Here are a couple of things to know:

Unlike with male-female couples, the law does not currently assume that both spouses are the parents of children born during the marriage. Across the U.S., the law presumes that the husband is the father of any children born to his wife while they are married. Husbands don't have to seek legal recognition of their parentage; it is assumed. It can be challenged by either party, but left alone the husband has full fatherly rights from the start.

Colorado's family law statutes and regulations have not been updated to expand this assumption to married, same-sex couples who have children. This can be a big problem if your parental rights are ever questioned, which they easily could be. Your legal rights as a parent include things like the right to pick up your child from school or to authorize medical treatment. Even if you were married when your child was born, you won't necessarily be treated like a parent without a court decree.

For the protection of your children, your family and your mental health, The Center urges you to obtain legal recognition of your parentage, either in the form of a court judgment of parentage or through the process of adoption. This recommendation applies to married same-sex couples, unmarried same-sex couples and unmarried hetero parents.

Even if the hospital puts both of your names on the birth certificate, you may not be protected. Courts in other states have sometimes ruled that same-sex parents can't even have both of their names listed on a birth certificate. Colorado has allowed it, but you should be aware that your name on a birth certificate may not be enough -- especially if you move to a state that does not. The surest way to protect yourself is through adoption or a parentage order.

If you aren't sure what your rights are as a same-sex couple, don't leave your family's future open to challenge. Contact an LGBTQ-friendly family law attorney and ask for help.

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Mary Kay Kramer, P.C.
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Colorado Springs, CO 80904

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