What is Second Parent Adoption, and Why Do I Need it?

Another adoption option for same-sex couples is second-parent adoption. While less common nowadays because of the marriage equality ruling, it’s still a viable option for many unmarried same-sex couples who want to legally make a child a part of their family.

Before you start pursuing a second-parent adoption, however, it’s important that you consult with an experienced adoption attorney in your state. Because the states that allow second-parent adoption vary and each adoption situation is unique, a lawyer can help you understand whether second-parent adoption is right for you — and, if not, which legal process you’ll need to pursue.

What is second parent adoption?

The goals of a second-parent adoption are very similar to those of a stepparent adoption — the key difference between the two being the marital status of the adoptive parents involved.

Because many states require parents who wish to adopt a child together to be married, if a same-sex couple is unmarried, only one partner can legally adopt a child. Therefore, for the other partner to protect their rights to the child without getting married and completing a stepparent adoption, they must go through the legal process of a second parent adoption.

There are several common situations that may require a second parent adoption for unmarried same-sex adoptive parents:

  • When one partner completed an adoption on their own, and the other partner wants to legalize their parent-child relationship with that adopted child
  • When a same-sex couple could not adopt jointly in the past but wants to protect the original non-adopting partner’s legal rights to their child
  • When an LGBT couple has a child through assisted reproductive technology and only one member of the couple is automatically the legal parent of a child (just being on the birth certificate is not enough to secure the non-biological parent’s rights)

Just like a stepparent adoption, a second parent adoption grants parental rights and protections to the adopting parent. Therefore, if you already have or are anticipating having a strong parent-child relationship with your adopted child and are not married to your partner, it’s important that you complete this step to create legal permanence for this relationship.

What are the states that allow second parent adoption?

While second parent adoption used to be the only way that many LGBT couples could both be legal parents to an adopted child, the marriage equality ruling has changed the legal process a bit. In response to the ability of LGBT couples to get married like heterosexual couples have in the past, some judges and courts have made it difficult for same-sex couples who are adopting to complete second-parent adoptions — the argument being that, if heterosexual couples are required to have a marital relationship before gaining a legal relationship to a child, same-sex couples should be required the same, not use a second parent adoption as a way to around that marital requirement.

Therefore, if you’re looking to complete a second parent adoption, it’s important that you work with an adoption attorney to find out if it’s legal in your state and, if so, how you can start the process.

In some states, you may find that you need to marry your partner to legally adopt their child through a stepparent adoption. While only you and your partner can decide whether marriage is right for you, it may be the only way that you can legalize your parent-child relationship with your spouse’s child. Depending on what your attorney says about your situation, you may need to consider lesbian or gay step-parenting and that legal process instead.

What should I consider about my partner adopting my child?

If you’re considering a second-parent adoption for your partner, you’ll need to recognize that, like stepparent adoption, a second-parent adoption may require the termination of parental rights. If you adopted your child on your own, one of their legal parents may still have parental rights (as some states do not terminate parental rights unless there is another parent to fill that void). To have your partner adopt your child, the child’s other legal parent (whether a biological relation by private domestic infant adoption or donor agreement/surrogacy birth, or an ex-partner who adopted your child) will need to have their rights terminated. Whether or not this can be completed involuntarily will depend on your individual situation.

While second parent adoptions are not as common as they used to be, they may still be an option for unmarried LGBT couples. If you’re interested in adopting a child as the member of an LGBT couple, talk to a local attorney about your situation to find out what kind of legal adoption process is best for you.