State Marriage Law Patchwork Puts Md. Same-Sex Couples at Risk


COLLEGE PARK, Md. (Oct. 24, 2013)—When Emily Hecht-McGowan and her wife, Sharon McGowan travel outside of Maryland with their 1-year-old daughter, they take a Pack ‘n Play crib, diapers, formula, snacks, a stroller, toys—and lots of documents.

The documents, like the diapers, are necessary protections for their daughter, Sadie. If she had a health emergency in a state that doesn’t recognize same-sex marriage, a hospital may not recognize both Emily and Sharon as parents without documents to prove it.

“Because laws vary from state-to-state and because we don’t have nationwide recognition [as same-sex couples], couples still need to go through extra steps to ensure the security of their family,” said Emily Hecht-McGowan, who lives in Takoma Park.

Legal same-sex marriage in Maryland means both partners are recognized as parents. But that recognition doesn’t automatically extend to the 35 states that currently restrict marriage to a man and a woman.

“When these married couples and their children travel or move to another state like North Carolina, where their marriage will not be recognized, any legal relationships to children that flow from their marriage will not be recognized,” said Michelle Zavos, an adoption attorney in Silver Spring.

To avoid problems, same-sex parents have to take legal precautions that straight parents don’t. Attorneys like Zavos advise a second parent adoption — the adoption of a child by the second parent in the home who is not the biological parent — to help avoid this issue when in other states.

“Nobody lives their life in just one state,” she said.

The patchwork of laws does not affect same-sex couples who adopt a child together. But it does affect married same-sex couples where only one partner is the biological parent. The non-biological parent in same-sex couple is automatically considered a legal parent in Maryland, but not in states that are hostile to same-sex marriage.

In Emily Hecht-McGowan’s case, she gave birth to a daughter in Washington, D.C. As with any state that recognizes same-sex marriage, Sharon McGowan was considered a legal parent. They also had additional protection from a district statute that allowed them to sign a “consent to insemination” form, which strengthened Sharon McGowan’s recognition as a legal parent. Despite both protections, they still underwent a second-parent adoption in Baltimore.

“We did a second parent adoption as soon as we could,” said Emily Hecht-McGowan, describing the process of the adoption as “intrusive.” “We were grateful we had the opportunity to do it, but we felt angry and a little bitter. This is just something we have to go through because of what our family looks like.”

Emily Hecht-McGowan is the director of public policy at the Family Equality Council, a national advocacy organization committed to securing family equality for the LGBT community.

Courts in states that do not recognize same-sex marriages will not consider both partners parents unless both names are on adoptions papers, Zavos said.

“Second parent adoption results in a judgment of adoption, where every state is supposed to give full faith and credit,” Zavos said. “In North Carolina, there is a public policy not to recognize these [same-sex] marriages, but if it’s a judgment of adoption, that’s a court order and there’s no exception to a court order.”

This ensures the legal parentage of both parents, with both names on the adoption papers.

“Without that adoption, that other parent is kind of hanging out there,” said John R. Greene, an adoption attorney in Annapolis. “It’s not a good situation for the second person.”

Because of varying state laws affecting the legal status of same-sex couples, Harvey Schweitzer, an adoption attorney at Schweitzer & Scherr, LLC, said he saw the lack of consistency nationwide as a major hurdle for married same-sex couples.

“Unless and until same-sex marriage gets the same equal footing, there will always be the issue that at some point down the line, [these couples] can realize that they’re not legal parents,” he said.

Some federal lawmakers are trying to resolve this issue with the Every Child Deserves a Family Act, introduced in the House and Senate in May. The act would prohibit discrimination on the basis of sexual orientation, gender identity or marital status in public child welfare systems.

With 11 cosponsors in the Senate and 79 in the House of Representatives, Maryland representatives like Rep. John Delaney, D-Potomac, and Rep. Chris Van Hollen, D-Kensington, called the bill an important step in addressing the issue of family security.

“The law moves us closer to a national environment that is more friendly to LGBT families,” Delaney said. “This bill is only one part of the equation.”

Van Hollen said that the bill would give important protections to LGBT families.

“Every child deserves the security, love and care that a family brings,” he said. “And no child should be denied that opportunity.”

The House bill, sponsored by Rep. John Lewis, D-Ga., and the Senate component, sponsored by Sen. Kirsten Gillibrand, D-N.Y., was referred to committees in May and hasn’t seen any action since.

Even with a universal law, the public still needs to adjust to a world with LGBT families, Emily Hecht-McGowan said.

“Families come in all different shapes and sizes,” she said. “That’s just the way the world works today.”

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