If I had written this article a year ago, the premise likely would have been different. I still would have talked about the legal need for second parent adoptions, but it would have been written with an air of “but of course we can all hope that this will be unnecessary in the future as clearly we are moving towards equality in all aspects”. Today, I write instead with more of a pressured focus to educate parents that I wouldn’t assume anything.
There is continuing case for second parent adoptions. Same sex partners are still finding themselves in an odd legal situation of adopting their own children. For couples who use donor conception for example, and are in the room when their partner delivers their baby, it can be disorienting to fill out adoption paperwork weeks later for your own child. And while some states have ruled that this is unnecessary, it still is likely to be “left to the states”.
In New York in 2014 a judge denied a second parent adoption arguing that marriage equality rendered it unnecessary. While this may seem like a victory at first glance, this decision actually left parents in New York more vulnerable since parenting equality has yet to make it to all 50 states. There are so many conception and parent options that leave it too close to call if the second parent does not adopt. This means that parents who don’t complete a second parent adoption can find themselves legally vulnerable if they cross state lines especially to a state that doesn’t recognize same sex equality parenting. If the first parent is incapacitated or the couple divorces, the second parent can find themselves potentially stripped of rights.
Ironically the landmark Obergefell decision centered around adoption and yet it still remains to be seen if all states will uphold marriage equality as parenting equality.
States can even still deny same sex couples the right to adopt, making this even murkier. If a same sex couple uses donor options to conceive, or uses a gestational carrier to become parents, and yet that states disavows same sex parents their rights, how exactly do those parents proceed? The “jury” is still out.
The plus side here is that any final adoption order IS recognized across state lines. This makes the New York decision to deny a second parent adoption even worse, as the simple step would have confirmed the ability to be recognized in all states.
Simply putting both parents on the birth certificate is still not enough. In some states, having both names on the baby’s birth certificate does establish parent-child relationship; it is merely documentary evidence of the relationship. And this documentary proof can be rejected, in some states or in some circumstances.
There is continuing case for second parent adoptions. Same sex partners are still finding themselves in an odd legal situation of adopting their own children. For couples who use donor conception for example, and are in the room when their partner delivers their baby, it can be disorienting to fill out adoption paperwork weeks later for your own child. And while some states have ruled that this is unnecessary, it still is likely to be “left to the states.”
Author: Lauren T. Shlock, LPC
