Second Parent Adoption Necessity: Securing Parentage in Uncertain Times

Second parent adoption necessity has become the primary topic of discussion for me both at work and in my private life. 

Is there a second parent adoption necessity?  Everyone wants to know whether their family is safe.  Since January 2017, I have received more calls from parents who have not gone through the second parent adoption process for whatever reason and are now concerned that their children may be the ones who suffer from the lack of clear and incontrovertible parentage; a parentage that second parent adoption provides.

Why do I have to adopt my own child?  Many gay and lesbian parents are asking this question when attempting to understand the second parent adoption necessity.  In New York, married lesbian couples who have used anonymous sperm donors are allowed to be listed as a parent on their child’s birth certificate.  Gay couples who have children with the help of a surrogate mother may have petitioned for and received a pre or post-birth order declaring them the legal parents of their children.  They may also be on their children’s birth certificate.  So why is second parent adoption a necessity?second parent adoption necessity

The answer to this question is perhaps the most confounding that I have had to provide clients and friends.  If you can guarantee that your relationship will never end in divorce or dissolution and that, if it does, both individuals will prioritize the best interests of the child first and foremost, then perhaps you can get by without a second parent adoption.  But the reality of a relationship ending is never certain and, unfortunately, the non-genetically related parent is vulnerable to what may be costly and emotionally terrifying consequences.  While the few cases we have seen that have addressed the issue of the validity of a pre or post-birth order have ultimately upheld those orders, those cases cost the litigants tens or hundreds of thousands of dollars.  This is because every jurisdiction has different laws around parentage, some more friendly than others.

With a second parent adoption, there is no question about the parentage rights of a non-genetically related parent.  Even with recent New York case law protecting non-adoptive lesbian parents, there remains questions about what rights other than the standing to sue for custody and visitation exist without adoption.  Federal social security benefits attach to “natural or adopted” children.  Inheritance rights attach to “natural or adopted” children.  Without adoption, future clarification will be needed to accurately assess when parentage exists.

Assisted Reproductive Technology and Gay Families – Sometimes it feels  like we are all just waiting for the law to catch up to how gay and lesbian couples have their families.  One recent decision from Brooklyn, Kings County Family Court to be precise, describes this issue masterfully and concludes that second parent adoption is the one way to ensure that couples are protected as state courts and legislatures grapple with assisted reproductive technology (ART) issues.

While the court in this decision confirms that a parental relationship exists in most cases with or without the adoption, it also holds that married gay and lesbian couples are entitled to second parent adoptions to expel any doubt about parentage and to protect families, particularly when they travel throughout the country and around the world.  The good news is that in many states, New York included, a marriage is not a prerequisite for a second parent adoption.

Whether you are a lesbian couple with a known donor or an anonymous donor, or whether you are a gay couple with a surrogate mother and a pre or post-birth order, the second parent adoption necessity is very real.  Second parent adoption is the right choice to make to protect your family from any future uncertainties.

For more information, email me at Anthony@timeforfamilies.com or visit www.timeforfamilies.com for more information.

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Italian High Court Makes Gay Adoption Easier, Not Automatic

Italy’s highest court has made it easier for gay adoption, gays to adopt a partner’s biological child but the decision does not give long-sought automatic recognition to the families of same-sex couples.

A Cassation Court ruling on Wednesday confirmed a lower-court decision permitting gay adoption, or the so-called “step-child” adoption in cases where the family bond is well-established. The gay rights group Famiglie Arcobaleno (Rainbow Families) called the decision a step forward but said it falls short of its goal of having immediate recognition at birth of both parents in same-sex unions.adoption

Italy earlier this year became the last holdout in Western Europe to legally recognize civil unions for gay and lesbian couples, but only after sacrificing a hotly contested provision to allow gay adoption.

Associated Press via ABCnews.com – June 22,2016

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Gay Parents Adoption – New Possibilities

Gay parents adoption used to be unheard of.

While certain countries still struggle with the concept of our families being equal to all others, in America, the foundation for gay parents adopting has been set and the legal protections for these families are available and critical to creating security in these family structures.  There are several means by which gay parents adoption can occur. I will review the most common: private adoption, public adoption and second or step parent adoption.

Private Adoption – There are several reasons that parents looking to adopt a child may look into private adoption, sometimes referred to as domestic adoption. The availability of children is higher than most people expect.  In the most recent year for which accurate data exists, there were over 18,000 domestic non-relative adoptions of newborns within the United States. Although the number of people placing their children for adoption has fallen dramatically since the 1970s due to the stigma of single-parenthood thankfully decreasing, there are still many birth parents making the painful but loving choice to look for a family for their biological child.

The adoption of the child can be done in one of two ways. The first is to engage an agency to walk you through the process and to help you with paperwork and the emotional upheaval that such a big life decision will inevitably bring. The benefits to involving an agency are numerous; for example, having your own ‘Adoption Specialist’ who will help you communicate with the various other professionals who need to be involved in the process such as social workers, physicians and lawyers. Financial assistance may be available to help cover legal fees, and agencies often do not charge to process the adoption.

lesbian family law

drawing of a happy couple of lesbians and adopted child

The second is a private arrangement whereby a birth mother and prospective parents arrange the adoption between themselves. They will have to hire lawyers and meet the legal requirements of adoption such as age, ability to care for the child and other important aspects. Parents who want to adopt are able to ‘advertise’ for a birth mother, and mothers who have chosen adoption for their child are able to do the same for an adoptive family.

Public Adoption – Foster children are in the legal custody of a commissioner of a social services district. That district may give responsibility for the care of the child to a voluntary authorized agency. When a child is in foster care, decisions must be made regarding the long-range permanency plan for the child. If the social services district decides that it would not be in the child’s best interests to return home and that the child should be adopted, steps must be taken to legally free the child for adoption.

There are three ways a child can become legally free for gay parents adoption: 1) the birth parents can sign a voluntary surrender agreement; 2) the social services district responsible for the child can bring a case in court asking the judge to terminate the parental rights of the birth parents; or 3) if both birth parents are deceased, or one parent is deceased and there is no other parent whose consent to the adoption is required, the child is automatically free for adoption.  Read more at the NY State Office of Children and Family Services, the source of this information.

Second or Step Parent Adoption – One increasingly popular methods for gay parents adoption is when one parent has a biologically related child of their own and their partner or spouse adopts that child.  If the couple is not married it is referred to as a “second parent adoption” and if they are married, it is referred to as a “step parent adoption.”   For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child.

While recent case law is catching up to our families, it is still lagging in the ability to create complete security without adoption, or a birth order from a competent jurisdiction.  Whichever path you choose to having your family, It is critical to speak with an attorney with experience in the field.  When you consider gay parent adoption, please consider me a resource. For more information on family estate planning, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Family Time With Frank, John and Zachary

John and Frank live in Oakland Park with their four-year-old son, Zachary. In 2012, the couple fostered Zachary right out of the hospital after he was born and then 18 months later, Frank adopted him as a single father and they became a gay family.

John is from San Francisco. He recently graduated from college and works in human resources. Frank is from New York. He is a registered nurse at Broward General Medical Center and a former New York firefighter. In fact, he was one of the initial responders on 9/11. The couple met eight years ago playing softball.

The two got married in Broward County just after midnight on Jan. 6.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

In addition to the legal benefits, a huge motivating factor for the couple getting married was so John could join Frank as Zachary’s legal father on his son’s birth certificate. In many cases, unmarried gay couples were not allowed to adopt in Florida, with single fathers having to pass off their significant other as a “roommate”.

“(Before) If something happened to Frank, I wouldn’t have (had) a place to live and I would (have) lost Zachary,” John said.  Meet this gay family!

Visit gayswithkids.com.

Mississippi Same-Sex Adoption Ban Unconstitutional

Mississippi Same-Sex Adoption Ban Unconstitutional: The Supreme Court “foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage,’” a federal judge ruled Thursday.

WASHINGTON — A federal judge in Mississippi on Thursday afternoon halted enforcement of the state’s ban on same-sex couples adopting children.

Citing the U.S. Supreme Court’s 2015 decision ending bans on same-sex couples’ marriages, U.S. District Court Judge Daniel P. Jordan III granted a preliminary injunction against the state’s Department of Human Services in a case filed this past August.gay rights, lgbt adoption rights, adoption rights, gay adoption rights, gay adoption new york

Of the Supreme Court’s decision, Jordan wrote, “[T]he majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’”

Jordan concluded on Thursday: “The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that [the adoption ban] violates the Equal Protection Clause of the United States Constitution.”

The case was brought by same-sex couples seeking to adopt through the foster care system or private adoptions, as well as by the Campaign for Southern Equality and the Family Equality Council. They snagged Roberta Kaplan as their lead attorney in the challenge — the lawyer who represented Edie Windsor in her successful challenge to the Defense of Marriage Act and then Mississippi same-sex couples who successfully challenged the state’s same-sex marriage ban.

While Jordan did grant their requested preliminary injunction, he also granted the requests made by many of the defendants to be removed from the lawsuit. Jordan granted requests to dismiss the complaint against Mississippi Gov. Phil Bryant, Attorney General Jim Hood, and several judges — finding that they were not the appropriate parties to be sued by the couples and groups.

Buzzfeed.com, by Chris Gender – March 31, 2016

Parent Adoption – Is it Right for Your family?

The “parent adoption” process is also referred to as Second Parent or Step Parent Adoption. Here is what you need and what you need to know!

When one partner or spouse in a relationship adopts the biological child of their parent or spouse that is referred to as a “Parent Adoption.” If the parties are unmarried, it is called a Second Parent Adoption.  When the parties are married, it is called a Step Parent Adoption.  While gay couples across the country enjoy equal marriage rights, the laws for New York State adoption are still muddled, and it’s advisable for most same-sex couples to petition for a second or step parent adoption to build that legal relationship between non biological parent and child. If there is another biological parent involved, or if a couple uses a known sperm donor, their consent will be required for the adoption to move forward.  If, however, the child is the product of an anonymous sperm donation, then no consent is required.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

New York State Adoption Step by Step

In a nutshell, you need to compile a lot of paperwork and have a good family lawyer, preferably one that specializes in adoptions for same-sex couples. Here is a rundown of what you will need:

  • The completed intake from your attorney. This is a general questionnaire that includes information for both parents and the child.
  • The original birth certificate for the child. A copy will not suffice. You will, however, get a new original birth certificate after the adoption which will add the name of the adoptive parent if it is not already on the original birth certificate.
  • A letter from the employer of the petitioning parent, and in some counties the biological parent, stating their position and salary. If you are not currently employed, they will need your last year’s tax returns.
  • A letter from the doctor of both parents stating that they are in general good health.
  • A letter from the child’s pediatrician stating that he or she is in general good health.
  • A completed form 1-D (a more elaborate medical assessment) by the child’s pediatrician
  • In cases of a surrogacy, you will need copies of your carrier and donor agreement.
  • In cases of artificial insemination, in vitro fertilization and surrogacy, a letter verifying insemination.
  • If married, a copy of your marriage license.
  • Previous divorce decrees if either parent has been previously married.
  • If either parent has ever been arrested or convicted of a crime, the details and disposition records for any offense must be submitted.
  • A list of every residence the petitioning parent has lived at for the past 28 years, including months and years associated with every address.
  • Financial information, including the value of your home, any owned real estate, stocks and bonds, life insurance information and any sources of income other than employment.
  • The petitioning parent must be fingerprinted for a criminal background check
  • A home study, which is generally arranged for once your lawyer has been retained.

Keep in mind that this process may vary slightly from state to state and county to county, so it’s important to find an attorney familiar with the legal details in your specific location. While the New York State parent adoption process may seem harrowing, keep in mind that your adoption attorney is there to help you, advise you and even help keep you organized every step of the way.  Read more about the process here.

Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at Anthony@timeforfamilies.com.

Gay Family Planning: Options For Your Family

For thousands of New York couples each year gay family planning is a daunting and intricate process. If you are part of a same sex couple, there are extra complications as you must decide what route to go down in order to have or adopt a child.

Gay family planning options include adoption, a surrogate NYC carrier, pregnancy by donated sperm, or IVF. Here we cover the basics for each of these options to help you consider the right option for your family:

 

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.

gay adoption

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Pregnancy via sperm donor

Lesbian couples have many options in their own gay family planning. Sperm donors may be someone known to the couple or, alternatively, screened samples from a sperm bank. Donors can be anonymous or known, and even with anonymous donors there is usually information available about the donor’s height, hair colour, eye colour, education level and nationality. Ensuring that you use an approved fertility clinic is essential in order to avoid potential diseases that can be transferred through sperm. If you are using a known donor, insist on having him medically pre-screened before insemination and it is a very good idea to consult with an attorney familiar with known sperm donation.

Traditional Surrogate

gay surrogacy

Traditional surrogacy involves the sperm of the intended ‘adoptive’ parent fertilizing the egg of the traditional surrogate, so the child will be biologically related to both parties. Surrogacy contracts in NYC are not legally binding as they are declared ‘contrary to public policy’. This means that you cannot pay someone to carry a baby for you, or create a contract that mandates that the traditional surrogate mother has to give the child to the intended parents, (IPs) upon delivery. Surrogates, whether traditional or gestational, cannot accept money apart from expenses and medical fees directly related to the pregnancy, and heavy fines are levied for anyone involved in a surrogacy agreement – $500 for those involved and up to $10,000 for anyone found to be arranging such contracts (which are void and unenforceable in NYC).

Despite this, surrogacy has continued to be a pathway to family life that many gay male couples choose to take, and there are agencies that help to match potential parents with potential surrogates who live in other, surrogacy-friendly States. When needed, New Yorkers are able to complete second or step parent adoptions in New York to finalize parental rights for a child that has been delivered through a surrogate from another State.

Gestational Surrogate

The difference between gestational and traditional surrogacy is that the baby resulting from gestational surrogacy is not related to the surrogate mother. An egg and sperm create an embryo which is then transferred to the surrogate via IVF. For a male same sex couple, both partners can contribute sperm so that each have an equal chance of being biologically related to the child; they would also need a female third party to donate the egg.

Having the options of different pathways for gay family planning (adoption, surrogacy or pregnancy via donor sperm) can be reassuring to a couple looking to have children, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Brown@awclawyer.com.

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Surrogacy Ethics – Is It Selfish for a Gay Couple to Have Kids via Surrogacy?

Surrogacy ethics are in the news more and more around the world.  Are gay men’s options for family limited to adoption?

 

Question – My husband and I are gay and are exploring the possibility of having children using an egg donor and a surrogate mother. Sometimes when we mention this in conversation, people ask us, in a chiding tone, Why don’t you adopt? They often then argue that with so many children in need of good homes, it would be ethically superior for us to adopt, instead of spending a small fortune so we can have children to whom we are genetically tied. In addition, there are ethical issues related to paying women for their eggs or paying women to carry our children as surrogates. Are we acting unethically — or at the least selfishly or self-indulgently — in pursuing biological children instead of adopting orphans who could benefit from what (we like to think) would be a good home? David Lat, New York

adopt

Answer – Anybody who is contemplating having a baby, by whatever means, could be adopting a child instead. If those who chide you include people who have biological children themselves, you might want to point this out. Come to think of it, your friends who don’t have children are also free, if they meet the legal requirements, to adopt. Every child awaiting adoption is someone who could benefit from parental volunteers. There is no good reason to pick on you.

The path you have chosen, it’s true, mixes commerce and reproduction through egg donation and surrogacy. But while acquiring an egg and then working with a surrogate mother are transactions with ethical risks, they can each be conducted in morally permissible ways. The main concerns I would have as to surrogacy ethics are avoiding exploitation — so you need to make sure that the donor and the surrogate are acting freely and are fairly compensated — and taking care that your understanding with the surrogate mother is clearly laid out in advance. But any responsible agency that assists you in this should cover these bases.

Wanting a biological connection with your child is pretty normal: We evolved to pass on our genes, after all, even if we’re free to give Mother Nature the side-eye.

New York Times, By

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Get gay adoption statistics & facts

Familiarize yourselves with gay adoption statistics and facts before starting your family

While marriage equality is now the national standard, the laws concerning families of same-sex couples are just as muddled as ever, if not more so. Before beginning your family, it’s important to do a little research beforehand on gay adoption statistics and facts.

 

Gay Adoption Statistics

As many as 6 million children have gay parents, and that number is growing. According to 2010 US Census data, about 20% of same-sex couples are raising children. What does this mean? It means you and your child, current or future, are not alone.

 

Children of same-sex parents, even high-risk children, fare just as well as children of opposite-sex parents. While this seems like common sense, having scientific evidence confirming that gay parents are indeed just as good as non-gay parents (or also, a lack of scientific evidence that same-sex parents cause harm to children) means that while family laws are lagging behind, they should eventually catch up in giving all families equal rights in adoption. This doesn’t, however, mean you should or need to wait to start your family! Gay adoption statistics aside, here are a few facts and considerations to keep in mind before beginning the family planning or adoption process.

 

Get gay adoption statistics & facts before family planning

  • If you’re planning on adopting, filing a joint petition for adoption is generally the better option, as it automatically recognizes both partners as legal parents. In the state of New York, you need not be married to do this, however this may vary state to state.
  • Marriage does not automatically create legal parentage. If you are considering artificial insemination or surrogacy, it’s important that the non biological parent establishes a legal relationship with the child through the co adoption process, even if that parent is named on the birth certificate.
  • If your partner already has a child, you will need to petition for a stepparent adoption. In order to do this, the child’s other biological parent has to surrender their legal parental rights to that child.
  • It’s important to investigate adoption laws of the state in which you reside, as many states give preference to married couples over unmarried couples when adopting or fostering a child. Adoption laws also vary by county.
  • Once a legal relationship has been established between parent and child, this legal relationship will be recognized nationally.
  • It is vital that both parents have established a legal relationship with their child in the event that the biological or adopted parent becomes incapacitated or in the event the relationship dissolves. In the event of either of those situations, the non biological or adopted parent risks losing custody rights of the child.

 

Regardless of how you intend to grow your family (through adoption, foster parenting, surrogacy or artificial insemination), it’s important to hire a family attorney experienced in adoption laws in your state and county to help you navigate the intricacies of the law and to make sure you make it through the process with no complications. For a well-vetted family attorney in New York, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Brown@awclawyer.com.

Gay Adoption New York

Gay Adoption New York: is adoption necessary in the case of a sperm donor?

For same-sex couples, the fight for marriage equality is over and done with. As they start to building families, however, the struggle remains as the intricacies of family law in New York and across the U.S. haven’t quite caught up to this landmark change. This has led to much confusion on the part of same-sex, particularly lesbian, couples. One question is frequently asked: if two married women conceive a child through artificial insemination, does the non biological parent need to go through the process of gay adoption New York?

 

Gay Adoption New York is still necessary for married women using a sperm donor

Unfortunate case law in the State of New York, entitled Paczkowski v. Paczkowski, held that when married women have a child through artificial insemination, the marital presumption of parentage does not apply to them. This was the case in New York before gay marriage was nationally legalized and it still applies.

Marriage means parentage then?

Marriage does not convey legal parentage for same-sex couples. If your spouse had your child before you were married, gay adoption in New York is still necessary, particularly when you were not listed as a parent on the birth certificate. Despite marriage equality, adoption laws still vary from state to state so it’s important to check the state laws if you plan on adopting your child outside of New York.

What about the sperm donor?

In the case of an anonymous donor, typically the donor has given up all parental rights through the donation process. For this reason, using an anonymous donor is beneficial in New York because a married lesbian couple using an anonymous donor can have both parents’ names on the birth certificate. However, that alone does not create parentage, only second parent adoption does this.  Many couples opt for a known sperm donor for various reasons. In this case, the child and the donor will likely come into contact at some point. It’s vital to establish before conception the role the donor will play in the child’s life, and execute any legal documentation outlining anything pertaining to parenting or visitation rights of the donor. Any lesbian couple using a known sperm donor, regardless of whether they identify him as the father on the birth certificate, must undergo the second parent adoption process to secure the non biological mother’s rights to the child.

 

If you need help determining your parental rights or adopting the child (either biological or adopted) of your spouse, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations. Anthony is available to answer all questions concerning non traditional family law and adoption for GLBT families. Call 212-953-6447 or email Anthony with any questions or concerns.