By Alex Temblador
We live in a society in which the definition of a parent deals in terms of biology or legality, which makes it difficult for many same-sex families. For those families that choose surrogacy or IVF, usually only one person in the relationship is biologically related to the child, which begs to question—who is the other person legally in terms of the children?
Because of our legal system, the other person in the relationship is not legally the parent of those children which can bring about a slew of problems while the same-sex couple raises the children together or if for some reason or another, the couple splits up.
This is where “second-parent adoptions” and “stepparent adoptions” come in. Though heterosexual couples in blended families may go through these adoption processes too, the whole ordeal of second-parent or stepparent adoptions for gay and lesbian couples in the United States is currently a messy and unfair situation. This is mostly because the same-sex marriage ruling did not automatically change the parenting laws in states across the country.
We’ve put together some questions and answers to help you better understand second-parent and stepparent adoptions in terms of your LGBT family and how or why they may be the right thing for your family.
- What are second-parent adoptions?
“A second parent adoption is the legal procedure by which a co-parent adopts his or her partner’s child without terminating the partner’s parental rights, regardless of marital status.”—NCL Rights.
Second-parent adoptions are for same-sex couples who are not married.
- What are step-parent adoptions?
They are the “legal adoption of a child by the spouse of the child’s birth or previous adoptive parent.”—Family Equality Council.
Step-parent adoptions are for same-sex couples who are married.
- What rights do second-parent or step-parent adopters have?
The same rights as biological parents.
- If you are on the birth certificate, do you need to do a second-parent adoption?
Even if both persons in a same-sex relationship who are married are listed on the birth certificate of a child, many attorneys will suggest that you go ahead and complete a stepparent adoption if you are not the biological parent.
Many will recommend that you go with other family protection documents “such as medical authorization, guardianship agreements, wills, advanced directives.”
By going through the process, it’s a means to protect yourself and your right to your children.
- If a same-sex couple divorces, will the biological parent have more rights in the eyes of the court?
Not if you have gone through a second-parent or step-parent adoption process according to NCL Rights. They state that:
“A biological parent does not have any more rights than an adoptive parent or other person who is a legal parent.”
“If the couple were to separate, each would be equally entitled to custody, which a court would determine based on the best interests of the child without giving an automatic advantage to either parent.”
- What if my state doesn’t allow step-parent or second-parent adoptions?
Have an attorney create a co-parenting or custody agreement for you and your family. Such agreements could allow for the “second-parent” to have such rights as the biological parent in case of an emergency, separation, etc.
There are many court cases that are on-going in states all across the United States. With the marriage equality ruling that just occurred 6 months ago, unfortunately, it might take some time to get same-sex parents their full rights in terms of second-parent or stepparent adoptions and birth certificates. The hope is that step-parent adoptions – adoptions by a non-biological parent who is married to the biological parent – will eventually not even be needed.
- Why should same sex couples consider second-parent or step-parent adoptions?
Though these aren’t always going to occur or may never occur, these are instance in which you would want to be the legally recognized parent of your children:
- Emergencies—the ability to make medical decisions concerning your children’s health.
- Travel—having the right to travel with your children to other states or other countries that do not recognize same-sex marriages.
- School—some schools have strict policies about not giving non-legal guardians information about their children or even picking them up from school.
- Insurance—your children will be able to have access to your insurance too.
- Taxes—you’ll be able to claim your children on your state and federal taxes.
- Custody rights—in case of a divorce or separation, you would have visitation, custody, or financial rights to your children.
- How do I find out about the laws concerning second-parent or step-parent adoption in my state?
Probably the best place to discover more about these laws is to go directly to a family lawyer. Many websites have outdated information about second-parent and step-parent adoptions in different states. On the other hand, many of these laws have just recently changed or are in the process of changing and a lawyer’s job is to know exactly when they’ve changed and what that means for you and your family. For instance, currently, there’s a custody case in the Supreme Court concerning second-parent adoptions in Alabama.
Family Equality Council has an interactive map with information concerning these laws and it seems fairly accurate and mostly up-to-date. Click here to check it out.