In Nebraska, unmarried same sex couples are not afforded the same legal remedies for establishing parentage as opposite sex couples. This is inherently discriminatory for more than one reason, namely this poses sexual orientation & gender-based discrimination. It is past time to move to gender-neutral protection for all parents so that children can have the love and support that they deserve from both parents and all parents can have legally protected relationships with their children.
Neb. Pat Stat Section 43-1411 allows recourse for opposite sex parents – i.e., mother and father – to bring a legal action to establish parentage. This is known as a paternity action and it may be initiated by the mother, putative father and/or the State. This law does not, however, allow a same sex couple to bring an action to establish legal parentage.
In addition to 43-1411, opposite sex couples have an even easier alternate route to ensure their parentage status. An Acknowledgement of Paternity is a legal document in which an unwed mother can simply provide the name of a putative father. Both Mother and Father then execute the form via notarized signatures. The form expressly states, “if you sign this document, you have taken the first step in establishing your child’s legal paternity. Paternity means fatherhood.” This is a very popular method of establishing paternity nationwide because it is quick and there is no cost. Unfortunately, however, in Nebraska, there is no “fill in the name and simply sign on the dotted line” for a same sex couple. This creates yet again another denied opportunity and is clear discrimination based on sexual orientation and/or gender. Is there no possible avenue for same sex unmarried couples then?
The common law doctrine of in loco parentis (“in the place of a parent”) may be suitable when an adult has put himself/herself in the situation of a lawful parent by assuming the obligations of the parental relationship and it is found to be in the child’s best interests. A same sex parent could be found to be “in loco parentis” and if so, his/her rights, duties and liabilities are similar (not equivalent) to those of a legal parent. The parent seeking to establish this connection has the burden of showing he/she nurtured and lived with the child. Nebraska courts have been clear however that in loco parentis is temporary and not the equivalent of a lawful parent. Furthermore, the position of in loco parentis can be suspended, is considered temporary and does not afford the child the same benefits as a legal parent for example, inheritance and/or social security benefits are not rights.
What about an adoption? Adoptions are oftentimes a viable path for married same sex couples via a stepparent adoption. This again is not the case for unmarried same sex couples. The hurdle in Nebraska is that in order for the non-biological parent to adopt, the biological parent has to first relinquish all parental rights to the child. Again, this poses another clear prohibition for same sex unmarried parents.
Nebraska laws do not afford equal protection and treatment for all kinds of families. Simple changes like allowing all parents to execute an Acknowledgement of Paternity could create a huge step forward in equalizing the right to parentage for all and removing this injustice. At McGill Law, we care about your inherent right to be a lawful parent and our experienced team will work hard to protect and fight for this right.
We have your back … give us a call to further discuss and begin the process.