If you are planning to have children with your loved one and your intention is that both parties have parental rights, there are steps that must be taken to preserve those rights.
This really applies to the lesbian community, as they are the ones trying to build families on flawed legal foundations, and although not all houses built on flawed foundations fall apart, too many do.
As a result, I'd like to start off this discussion with an entreaty; please be sure of what you are doing and consider the well-being of the children.
Children suffer when a bonded parent is taken from them. It is selfish. If you are having a child with someone, please be committed to ensuring that you intend to maintain that other person in the child's life.
Unfortunately, as of late, I've had the sad experience of encountering a number of cases in which one parent lost their children when the bio-mom removed the children from the state.
How does this happen?
First of all, registering as domestic partners is not enough to protect your rights to your children. Unlike with heterosexual marriage, your rights cease at the border and someone else’s rights and responsibilities may pick up from there.
If you register as domestic partners, your rights are pretty much secure within California. However, they do not follow you outside our borders. In other words, if you travel at all outside the state, you are not protected.
Another situation to consider is that even as domestic partners, if bio-mom takes the children and leaves California, the remaining partner may well lose rights and even access to those children.
Because although California's domestic partnership registration form states that the parties agree to submit to California’s jurisdiction, the courts at this time are not honoring this jurisdiction when it comes to the children. Therefore, if the bio-mom moves to a jurisdiction that does not recognize your rights, you will have either heartbreak or quite a battle ahead of you.
For those nice guys donating their sperm without a clear agreement, they are at risk as well. If bio-mom takes the children to a jurisdiction that does not recognize the other parent's right, that jurisdiction may seek out the sperm donor for child support.
So, what should you do, or can you do?
First, draft an agreement reflecting your intent to co-parent. If you are using a sperm bank, you will have one less thing to worry about, because the donor will have surrendered his parental rights, but if you are not using a sperm bank, it is absolutely imperative that you enter into a Known Donor Agreement.
If you cannot or do not want to register as domestic partners, you can have a co-parenting agreement drafted as well as the Known Donor Agreement.
If you are concerned about registering, a pre-domestic partnership agreement can be drafted. If you do register, you are not done. You must obtain a Parentage Judgment that states both parties are the legal parents of the child. This can be done before the child is born.
You must also take steps to terminate any legal rights the donor might have. There are a couple of ways to do this, but my preference would be to do a domestic partnership adoption. The Juvenile Courts are more familiar with this process than the Family Courts and there is a specific procedure for terminating the sperm donor’s rights.
If you are not registered domestic partners but you have a clear co-parenting agreement, you can still do a parentage action and a second parent adoption; however, it will be much more expensive.
Whatever you choose to do, please remember that you and your children will have to live with the ultimate outcome of your decision.
This is a very fluid and specialized area of the law and the Family Courts have little experience with it. Accordingly, it is always best to consult with an attorney experienced in this field before beginning the process of creating your family.
I ask that you please give this information serious consideration and pass it on to any couples you know who are contemplating having children.