The 2015 decision in Obergefell v. Hodges, 576 U.S. 644, and the 2017 follow-on in Pavan v. Smith, 582 U.S. 563, settled marriage equality and the related question of equal treatment on birth certificates. They did not settle the full range of parentage, custody, and assisted-reproduction questions that LGBTQ+ families bring to family court. The gaps that remain are the principal source of risk for these families, and they are not evenly distributed across states.
Parentage: marital presumption and its limits
Every state recognizes a marital presumption of parentage: the spouse of a person who gives birth is presumed to be the child's legal parent. Pavan requires this presumption to apply equally to same-sex married couples. In practice, the presumption is rebuttable in most states, and the rebuttal procedure varies. Some states allow genetic testing to defeat it; others do not where doing so would disrupt an established parent-child relationship (theMichael H. v. Gerald D. line of analysis applied at state level).
Best practice for non-gestational parents in same-sex marriages remains second-parent or confirmatory adoption. Adoption is recognized in every state under the Full Faith and Credit Clause (V.L. v. E.L., 577 U.S. ___, 136 S. Ct. 1017 (2016) (per curiam)). A birth certificate is not. Several reported cases since Obergefell have involved non-gestational parents losing parentage rights in a different state on the ground that the birth certificate was a state administrative document, not a judgment entitled to full faith and credit.
The Uniform Parentage Act (2017)
The Uniform Parentage Act, as revised in 2017, modernizes parentage to include de facto parentage, intended-parent status in assisted reproduction, voluntary acknowledgments available to non-biological parents, and explicit non-discrimination on sexual orientation and gender identity. As of 2025 the 2017 UPA (or substantially similar legislation) has been enacted in roughly a dozen jurisdictions — including California, Vermont, Washington, Connecticut, Rhode Island, Maine, Hawaii, Illinois, Massachusetts, Oregon, and Colorado — with adoption pending or introduced in others. States that have not enacted it operate under older parentage frameworks that pre-date marriage equality and produce recurrent litigation.
Assisted reproduction and known donors
The parentage status of a known sperm or egg donor is governed by state statute and varies considerably. Most states protect anonymous donors from parental obligations and rights; the situation with known donors who have agreed to some form of relationship with the resulting child is less uniform. Written pre-conception agreements are essential and, in most jurisdictions, evidentiary rather than dispositive. Surrogacy law is even more variable: California, Nevada, Washington, and New Hampshire have express enabling statutes; Louisiana, Michigan, and Nebraska restrict or prohibit compensated surrogacy. The American Bar Association'sModel Act Governing Assisted Reproduction remains the closest thing to a national template.
Transgender parents
Courts have, in a series of cases, addressed whether a parent's transgender status is itself a basis for restricting custody. The consistent appellate answer is no: the parent's gender identity is not a custody factor absent evidence of actual harm to the child (see, e.g., Christian v. Randall, 33 Colo. App. 129 (1973), an early but durable formulation, and a line of state appellate decisions that followed it). Some trial courts have nonetheless treated transition as a factor, requiring appellate correction. The 2020 decision inBostock v. Clayton County, 590 U.S. 644, while a Title VII employment case, has been cited in family-court contexts to support the proposition that adverse treatment based on transgender status is sex discrimination.
De facto and equitable parentage
Where formal parentage is absent — a couple separates before adoption is completed, or one parent was never legally recognized — most states now recognize some form of de facto or equitable parentage doctrine for someone who has functioned as a parent. The leading early case is V.C. v. M.J.B., 163 N.J. 200 (2000); the 2017 UPA codifies the doctrine; states without the UPA address it through case law of varying clarity. The doctrine is the principal protection for non-gestational, non-biological, non-adoptive parents whose families dissolve.
Read next
- What actually makes a co-parenting message court-admissible — Screenshots get challenged. Timestamps get questioned. Here is what family courts actually look for in a digital communication record, and how to make sure the one you bring holds up.
- Children's rights in co-parenting: what they are, and what they are not — Children have a legal and moral right to two functioning parents and a calm environment. Here is what that looks like in practice, and what it does not.
- Parents' rights in family court: what you keep, and what you trade — Filing in family court does not erase your rights as a parent. Here is a plain-language guide to what those rights are, where they bend, and how to protect them.