The relationship between parent and child is not only foundational to how we view our family structures but is an important legal designation which brings with it many rights and responsibilities. However, perhaps unlike biological parentage, there are many different ways to make a legal family. Some people may be surprised to learn that DNA and gender have no relevance to legal parentage.
In 2017, the Oregon legislature updated the parentage statutes to account for the legalization of gay marriage and the increasing use of assisted reproduction in the creation of families. As far as this author knows, all states have at one time had a statute which declares that when a man and woman are married the husband is presumed to be the father of any children born during the marriage. However, for couples who are not cisgender and heterosexual, this statutory presumption has historically omitted them—requiring the non-birthing party to formally adopt a child, even if the parties were married. The statutory change in 2017 resolved this issue by changing the presumption that any person married to the birthing party is presumed to be the legal parent to a child born during the marriage. No one can challenge the presumption of the spouse’s parentage while the parents remain married, except with the permission of the spouses—even if that person is biologically related to the child.
In practical terms this means that a child born to one member of a married couple will automatically have two legal parents regardless of the parents’ genders—no adoption required. Importantly this child’s parents will be their legal parents for all purposes—child custody, child support, and intestate succession, to name a few. For this reason, an understanding of the legal parentage statutes is important not only for those working with families, but for personal representatives and trustees who need to make determinations about who may constitute a beneficiary’s descendant. When dealing with same-sex families, personal representatives and trustees should not make assumptions about who a beneficiaries’ parents or children are but should gather all the necessary facts when determining parentage. These facts include whether the parties were married at the time of birth (or within 300 days before birth), whether there was ever an adoption, and whether there was a subsequent action regarding a party’s parentage.
If you have questions about how legal parentage may affect your legal matter, the attorneys at SYK have a wide breadth of knowledge in family law, probate administration, and estate planning, and would be happy to assist you with your issue.