Parenting Contracts for Gay and Lesbian Parents

by Katharine Swan

Whether you are considering donor insemination or adoption, one of the biggest issues for gay and lesbian would-be parents to consider is the lack of rights that the non-legal parent has. In most cases, only the biological or adoptive parent is legally recognized, putting his or her partner in a rather helpless position should the relationship ever end through death or a break-up.

Some states offer a solution for gay and lesbian parents in the form of second parent adoptions, which give the co-parent all the same legal rights and responsibilities as the original parent. However, second parent adoptions are only available in some states, requiring that gay and lesbian parents explore their other options for protecting their family. One such alternative is to have a parenting contract.

What is a Parenting Contract?

If you and your partner decide to have a child, very likely you will be making many of the same decisions together that heterosexual couples do. The major difference is that the law mandates both heterosexual parents’ rights and responsibilities, while in a gay or lesbian family, the non-legal parent is ignored unless the court is given reason to do otherwise. A parenting contract, also sometimes called a parenting agreement, simply puts the partners’ parenting decisions in writing, as proof of the role that the non-legal parent plays in raising the child.

The parenting contract should outline both partners’ intent for the present as well as the future. For example, the parenting contract should clearly state all of the following:

• The decision, made by both partners, to have a child together
• The intention to work together to raise the child, even if the relationship should end
• Each co-parent’s financial responsibilities toward raising the child
• Each co-parent’s duties in caring for the child (i.e. childcare, decision making, disciplining, etc.)
• Custody and visitation arrangements in case of a breakup
• Financial responsibilities of each co-parent in case of a breakup
• Guardianship arrangements in case one parent passes away

The idea of the parenting contract is two-fold. On one hand, you and your partner are planning how to raise your child in writing, which can help you work out any kinks you find along the way. Although it is up to you and your partner to keep the agreement should you split up, in most cases having a parenting contract encourages partners to work out their problems better than they would otherwise. At the same time, the parenting contract provides documentation of your intentions to co-parent your child, crucial if the non-legal parent is to be recognized at all in court.

Of course, many of the decisions made in the parenting agreement are subject to change. For instance, career changes may affect each parent’s financial and caregiving responsibilities. Changing circumstances can also affect the amount of visitation that a co-parent desires. Therefore parenting contracts should always be able to grow with the family, and any changes in the agreement should be documented as well.

How a Parenting Contract Helps

Unfortunately, parenting contracts are not foolproof. All too often, courts refuse to recognize them at all. For example, Virginia has a law on the books specifically stating that partnership contracts will not be recognized or enforced. However, some states will grant visitation to what is known as a “de facto” parent – a parent that does not have legal rights, but has a relationship with the child nonetheless. Parenting contracts can prove the existence of a de facto relationship between the non-legal parent and the child.

In order to be recognized as a de facto parent, the non-legal parent must prove that he or she:

• Lives with the child as a family member
• Acts as a parent, providing childcare, discipline, and moral guidance
• Shares with the legal parent the financial responsibility of raising the child
• Shares with the legal parent the decision-making responsibilities of raising the child

Documentation is usually required to prove the existence of a de facto parent. This may include records of family income and expenses, correspondence with the child’s teachers, even family photos and other mementos. However, legal documentation such as parenting contracts and wills provide the strongest testimony that you and your partner co-parented your child with every intention of being a family.

Other Safeguards for Gay and Lesbian Co-Parents

Because parenting contracts are not always enough to make the courts recognize the non-legal parent, you and your partner should be sure to take other precautions as well. For instance, each of you should have a will nominating your co-parent as your child’s guardian. The non-legal parent will also need powers of attorney, legal documentation that gives him or her the right to make medical decisions or pick your child up from daycare. These documents work together to uphold the agreements set forth in your parenting contract.

Protecting Your Family

As a parent, you have your child’s best interests in mind. However, it’s important to realize that in the case of a custody dispute or the death of a parent, the courts also have your child’s best interests in mind – or at least, they think they do. That’s why it’s important that you and your partner make the existence of a stable, nurturing family structure as obvious as possible.

Parenting contracts or parenting agreements help to protect the integrity of your family by defining who is a part of it. Although a parenting agreement is not binding by law, when used in conjunction with other documents such as wills and powers of attorney, they can help to reinforce the non-legal parent’s importance in the child’s life.

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