Second parent adoption is an important and significant legal issue for same-sex couples. In the case of a same-sex couple with biological children, only one parent is the biological mother or father of the child. In the case of a same-sex couple with adopted children, it is often the case that only one parent is the legal parent. Therefore, the other parent’s legal rights to raise the child or to make important child rearing decisions can be in jeopardy.
In a second parent adoption, the biological or legal adoptive parent can allow their partner to legally adopt the child. Under these circumstances, the couple does not have to have a legally recognized union, nor do the biological or adoptive parent’s rights have to be terminated. Currently there are 14 states that allow for second parent adoption, including California and New York. For a comprehensive list, please see the National Center for Lesbian Rights (NCLR).
In states that permit second parent adoption, procedures are in place to assist the co-parents in creating two legal parents for their child. The process can be used by:
- lesbian or gay couples planning to have one partner be the biological parent.
- gay or lesbian couples in which one of the partners is already the legal parent of a minor child.
- families where one of the child’s biological parents has surrendered their parental rights.
See also Second Parent Adoption Laws Equality Map
The basis for needing a second parent adoption is to protect the rights of the non-biological parent and the family unit. In a committed family, the non-biological parent often spends as much time caring for the child physically, psychologically, emotionally and financially as the biological mother or father. Hence a strong parental bond is established and should have the option of being legally protected. In addition, the rights of the child and the parent should both be protected in the instance of: death of the biological parent, social security benefits, insurance benefits, medical benefits and health care decisions and inheritance. All of these rights can be adequately protected with second parent adoption.
However, there are seven states that prohibit second parent adoption. In these states, other avenues of protection can be pursued in the event that the non-biological parent is in the position of defending, or attempting to establish, their rights as a legal parent. Even states that prohibit second parent adoption have begun to recognize that significant parenting is often done by a non-biological or non-adoptive parent. The phrase used to describe a situation such as this is “psychological parenting,” “de facto parenting” or “parenting by estoppel.” A determination that the non-biological parent has performed this type of parenting on a consistent and long-term basis can be evidence that the parent should have a legal right to continued contact with the child.
Under these circumstances, the court will look at the following factors;
- The composition of the residence of the child
- The significant role of the other parent in the child’s daily life
- The relationship between the child and the non-biological parent was encouraged and fostered by the biological or adoptive parent
- The duration of the relationship between the child and the non-biological parent
These factors can be proven based upon the daily activities of the family, the inclusion of the child in the non-biological parent’s will, co-parenting agreements regarding child rearing and discipline, responsibilities for school, extracurricular activities and social events, and records of financial support. All of these shared, family-oriented responsibilities will give the court a basis for finding a parental bond between the child and the non-biological parent thereby protecting the rights of their relationship with each other.
In a world where the composition of the family is ever-changing, new laws are needed to protect the rights and the relationships between all parents and their children. Hence, second parent adoption procedures are necessary and needed to ensure that all parents’ rights are considered and encouraged.
In the event that you find yourself facing any of these questions, please do not hesitate to contact Zurica Law at 917-538-3670. We will be happy to assist you in answering your questions and representing your interests.
Anthony Zurica is an Attorney specializing in Adoption Law and a guest writer for Considering Adoption. Based in New York City, Anthony stands by his clients as an ally and friend during the entire process of adoption, from application to successfully becoming a parent. Although adoption can be an emotional and oftentimes lengthy process, Anthony is committed to being there every step of the way, 24/7.
Dedicating his life to inspiring optimism and encouraging patience, Anthony works closely with individuals and families. Furthermore, Anthony is a proponent and advocate for LGBT families.
Anthony also volunteers as a CASA (court-appointed special advocate for children), and is on the junior board of the New York Foundling, a charity that that empowers thousands of children and families to live independent, stable and fulfilling lives throughout NY. Find out more and feel free to get in touch through his website, www.nycadoptionlawyer.com, Facebook, Twitter or LinkedIn.