As a crucial step toward parenthood for gay men and lesbians, LGBT couples should always consider availing themselves of the legal mechanism of second-parent adoption. Without it, the partner of a legal parent risks having his or her status as a legally-recognized parent questioned.
As an attorney based in Maryland and DC, I have helped hundreds of couples and singles build their families. I specialize in Maryland second-parent adoptions for gay couples as well as for gay couples in DC.
There are many situations involving couples and their children in which there is only one legal parent, despite the fact that both adults may care for a child equally, and consider themselves “co-parents” in every sense of the term. This “one-legal-parent” scenario is especially common among same-sex couples, for the obvious reason that status as a legal parent is most often granted to the parent who is biologically related to the child — either as mother or father. In fact, in some cases, both parents may be genetically related to the child — but for legal reasons only one is recognized as a legal parent.
In addition, even today some adoption agencies forbid gay adoption or lesbian same-sex couples from adopting together, but do allow a gay or lesbian individual to adopt — again resulting in a situation in which a couple may raise a child but only one of them is a legal parent. In these cases, a second-parent adoption is the solution, not only to providing the second parent (gay or heterosexual) with legal status, but also to obtaining a legal birth certificate with both parents’ names on it following the second-parent adoption procedure.
Once a second-parent adoption is complete, the child — whether a biological child or a child born through a surrogacy arrangement — has two legal guardians and parents, recognized by all states. And in the event of divorce or dissolution of the relationship, both parents’ rights are protected — courts usually grant adoptive parents the very same custody and visitation rights as they do biological parents.
If, as a gay couple, you and your partner are considering building a family, remember that second-parent adoption is one of the primary legal mechanisms — and ARTparenting has arranged countless successful second-parent adoptions in Maryland and the District of Columbia — through which you can protect the rights of all involved, especially those of your child. In addition, keep in mind the following:
The legal status of LGBT adoption in the U.S. varies geographically. States and other jurisdictions can restrict adoption by sexual orientation or marital status. A same-sex couple can adopt in some states. Other states permit adoption by an individual who is gay or lesbian. About half of all states permit second-parent adoptions by the unmarried partner of an existing legal parent, while in a handful of states courts have ruled these adoptions not permissible. This leaves parents in many states legally unrecognized or disadvantaged in court disputes with ex-spouses, ex-partners, or other relatives seeking custody.
The state of Maryland has permitted second-parent-adoption since 1996, and in DC second-parent-adoption became legal in 1995. As a result, countless Maryland and DC couples have enjoyed the benefits this important legal family-building tool – providing that the parents in question satisfy the criteria for adoption as set forth by the local court. But new laws pertaining to gay adoption by both residents and non-residents are changing the landscape in DC particularly, so expert legal advice throughout the process is essential.
One big remaining challenge in the evolving rights of same-sex couples and their children is the issue of marriage recognition and portability of that marriage from one state to another. Currently, a same-sex couple may be legally married in one state and then may move to a non-recognition state. Since legal recognition of parentage varies from state to state, the issue of legitimate parentage inevitably rears its head.
The advent of same-sex marriage can remove legal obstacles to the adoption of children by gays and lesbians. Adoption can take the form of second-parent adoption, described above, or adoption by one member of a same-sex couple of the other’s biological child -- referred to as a step-parent adoption.
If you are fortunate enough to be in a jurisdiction that recognizes your marriage, the most common way to establish parental rights would seem to be through marriage — notwithstanding the lack of a genetic connection to the child and one of the parents. A child conceived and born in the course of a legal marriage is generally presumed to be the legal child of both parents. Still, good practice will be to have parental rights recognized by second-parent adoption in order to protect everyone, most of all the child. The bottom line is that marriage recognition generally is still not sufficient by itself for protecting gay parents and their children.
If you are a gay male couple who has chosen surrogacy to build your family, you definitely will need to follow the requisite legal steps to have your parental rights recognized — and to make certain that the surrogate is not listed as the legal parent. This may involve a pre-birth parentage order, and/or a second-parent adoption.
Even though social biases against LGBT couples and gay adoption rights are changing dramatically, and quickly, and even though such families are commonplace, LGBT adoption laws don’t change as quickly as social mores do. And in many jurisdictions, the laws may never catch up with new and evolving family structures as they have done in Maryland and the District of Columbia, where I practice. So no matter how a same-sex couple builds their family, it is critical that they take the necessary legal steps to ensure that they, as the intended parents, are actually recognized as such.
© 2018 Meryl B. Rosenberg, Esq.
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