Two co-parenting Nebraskans are suing the state for the right to be recognized as their children’s legal parents. They have some parental rights, but they do not have the whole bundle because they share the same sex. And that bundle matters dearly — it’s the difference between being able to choose where your kids go to school, their healthcare coverage, and what happens when you’re no longer here to care for them. The suit is in response to a denial letter Nebraska’s Health and Human Services sent, which explained that:
Under current statutory language, an individual must be legally recognized as a parent to be listed as a parent on a Nebraska birth certificate. At this time, the only routes to legal parentage under Nebraska law are through marital presumption, adoption, or biological relationship. Ms. Porterfield and Ms. Williams were not legally married at or around the dates of birth, they have not adopted the biological child of the other, nor do they share a biological connection with the child born to the other. While a court has declared them to be in loco parentis, our Supreme Court has held that status is not the equivalent to the role of a parent. Accordingly, for the Department to take the requested actions, it would need to interpret new meaning into the current laws. This would extend beyond the authority of the executive branch and infringe upon the constitutional purview of either or both the legislature or the courts. Regrettably, I must advise the Department is without legal authority to comply with your request. (Bolded for emphasis)
The hope is that this is an unfortunate example of when neutral-appearing language is not as inclusive as it was thought to be at the time of writing. I am not sure how far that hope goes, given that co-parents who are not the same sex can establish parentage at any point after the child is born. A simple fix would be for a court or the legislature to adopt Porterfield and Williams’ solution: use gender-neutral words like parentage instead of paternity. A Uniform Parentage Act already exists and has already been adopted either in part or in whole by four states. Raising a kid is hard enough and no one should have to deal with bureaucracy on top of the terrible twos. Or the teen years. Definitely not the teen years.
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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. Before that, he wrote columns for an online magazine named The Muse Collaborative under the pen name Knehmo. He endured the great state of Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.