With the Supreme Court’s ruling last summer declaring part of DOMA unconstitutional, a lot has changed for New Hampshire’s same-sex couples. But a lot still remains the same. (Most importantly for New Hampshire families, the recommendation to obtain a second parent adoption still stands.)
There were two major parts to DOMA, the federal Defense of Marriage Act. One part dealt with the federal recognition of marriage as a union only between one man and one woman–this part of DOMA was struck down as unconstitutional last summer (More about DOMA).
The other part of DOMA provides that individual states are not required to respect a valid out-of-state same-sex marriage and the rights flowing from that marriage. This part of DOMA still currently stands.
So what’s the practical impact of this on families headed by same-sex parents? If your parental status is based solely on the existence of your marriage (and you have not completed a second parent adoption), your parental rights may not be recognized throughout the country. And this is a really big deal.
For New Hampshire same-sex parents, this makes it tough to move for a better job opportunity or to be closer to family. It even brings an additional element of risk into taking a vacation–something that opposite sex parents don’t have to worry about. Think about what would happen if your child were to have a medical emergency while you were in a state that didn’t recognize same-sex marriages. You might not be permitted to visit your child at the hospital, or to make medical decisions on behalf of your own child, even though you would have had those rights had you been in New Hampshire.
The contexts in which problems could occur due to the inconsistent recognition of parentage are limitless. For example, the will of your wealthy grandparent, who lived in a non-recognition state, could be read to exclude your child from the class of “great-grandchildren” who can inherit her estate. Hardly fair, is it?
Ultimately, it’s the kids who suffer from this disparity. If the best interests of a child are paramount, then legal parental ties should not be subject to change when the family moves or travels to another state.
Undoubtedly, a future challenge to this remaining part of DOMA will also occur, but the results of such a challenge cannot be predicted. Thus, same-sex couples still need to proactively plan for their legal and financial futures. A second parent adoption (also known as a “co-parent adoption”) for the non-biological parent can be the best protection available for your family.