When is a Parent Not a Parent? On Doma, Civil Unions, and Presumptions of Parenthood

Abstract

By recognizing civil unions, Vermont permits same-sex couples to secure all of the benefits of marriage afforded by the state including the partner's right to be considered the presumptive parent of a child born into the union. Given the Federal Defense of Marriage Act (DOMA) and the mini-DOMAs passed by various states, this presumptive parental status might be at risk were a couple who had celebrated a civil union to travel through or move to another state with their child. The partner's parental status would be less subject to attack were he or she to have taken advantage of Vermont's second-parent adoption provision. Because second-parent adoptions are not predicated on the partners' having a marriage or marriage-like status, such adoptions would not fall within the exception created by DOMA (even if broadly construed) and thus would be much less likely to be challenged successfully in a state with a mini-DOMA.