Former Same-Sex Couple Sues State of Nebraska for Full Parenting Rights of Each Other's Children

Under Nebraska state law, only unmarried male and female couples can receive full parental rights without adoption or biological relationships

couple sues
Erin Porterfield, back left, and Kristin Williams, back right, with their children. Photo: Rebecca Gratz for the ACLU of Nebraska

Erin Porterfield and Kristin Williams were once a couple and each gave birth to a son. The women, who have since split, as well as their teenage sons, are now suing the state of Nebraska, requesting that both women be recognized as legal parents of the boys.

The lawsuit argues that the Nebraska Department of Health and Human Services (DHHS) is violating the women's constitutional rights by refusing to follow state law for unmarried same-sex parents in the same way it does for unmarried opposite-sex parents, according to a release from the ACLU of Nebraska.

ACLU of Nebraska and Omaha law firm Koenig-Dunne are co-counsel on the case.

"If you had Diane and Bob, who never married, were not together, and they both agreed, they can go to the state of Nebraska, and Bob can sign an acknowledgement of paternity, and it serves as a court order, even if he is not the biological dad, he is automatically named that child's father for the rest of eternity," Angela Dunne, a managing partner at Koenig-Dunne, tells PEOPLE.

But because Porterfield and Williams are women, she says, "they can't do that."

In 2002 the couple began using reproductive technology and each woman give birth to a son, according to the release.

"We were never able to marry because by the time the supreme court had awarded that right to gay people, we had split as a couple," Williams recently told NBC affiliate WOWT. "We continued to care for both of our children as any couple would with shared custody."

They both have a court order that establishes an in loco parentis relationship, granting them each some, but not full, parental legal rights, according to the release.

Recognition with full parental rights would guarantee Porterfield and Williams to have equal rights to make decisions concerning the care of their boys — from education to estate planning — according to the release.

"So if I were to get hit by a bus and my will gave half my estate to Kadin, he could be taxed as if her were a stranger to me, and same is true if Erin passed and half her estate when to Cameron, he could be taxed as if he were a stranger to her," Williams told WOWT.

"If they were in a terrible position to have to make decisions based on end of life decisions for me or for Kristin, the birth certificate, the parentage piece... I mean, it's hard to even think about," Porterfield added. "But that moment, you don't want to haggle about who has decision making opportunity regarding end of life decisions for a parent."

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In 2018, the couple tried to establish both women as equal parents on the birth certificate of one son, but DHHS denied the application and denied the request again after a hearing, the release states.

This summer, the couple requested that both be recognized on their sons' birth certificates, but the Nebraska DHHS denied their request on Sept 29, listing in a letter that the "only routes to legal parentage under Nebraska law are through marital presumption, adoption, or biological relationship," which are unavailable to the women.

Speaking to PEOPLE, Dunne also notes that the women can't legally adopt each other's child because in Nebraska, the only way to adopt a child is if a biological parent relinquishes his or her rights.

But the fathers are not known due to anonymous sperm donation, and "the father can never be identified" to relinquish their rights in favor of the other mom, she says.

This lawsuit is the ACLU of Nebraska's second LGBTQ rights case this year, per the release. In March, the Nebraska Supreme Court unanimously ruled that two married women were allowed to legally adopt a child they raised from birth.

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