Second Parent Adoption and Step Parent Adoption
What is second parent adoption? – The court procedure known as second parent adoption is the only means by which an unmarried, non-biological parent in a same-sex relationship may create a legal and portably binding relationship with their partner’s biological child. If the couple uses a unknown sperm or ova donor, the child born of such an arrangement will only have one legal parent if that couple is unmarried. If the couple uses a known sperm donor, the donor will surrender his parental rights in the Second Parent Adoption. Some courts are now recognizing same-sex marriages for the purpose of adding a nonbiological mother’s name to a child’s Birth Certificate, however, other states are not bound to respect that relationship unless there is a Second or Step-Parent Adoption.
What is a step-parent adoption? – This is the court procedure where a married, non-biological parent can create a legally binding relationship with the biological child of their spouse. Many parents wonder whether their name on the birth certificate of their partner/spouse’s child is enough to create a legal relationship. The answer, unfortunately, is no. In a case from The New York County Surrogate’s Court, The Matter of Sebastian, Judge Kristen Booth Glen explains that the name of a non-biological parent on a birth certificate is an indication of parentage, but does not create that relationship. Cases where parentage claimed by a name on a birth certificate can be challenged if a biological parent takes the child in question to a state that does not honor a marital presumption of parentage for gay couples.
In New York State, where I practice, there is specific case law that also holds that the marital presumption of parentage does not apply to same-sex couples. In that case, “Matter of Paczkowski v. Paczkowski”, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.” See my article on this recent case here.
In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child. While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order. Unfortunately, New York currently does not have the capacity to issue a parentage order, an alternative to adoption, but there is legislation currently in committee in Albany that may change that.
How long does the process take? – There is no definite answer to this question; however, the petition is usually processed completely in approximately 6 – 9 months. If you hire and attorney who is familiar with this process, the wait time may be reduced, however, much is dependent on the court’s calendar and schedule.
What do my partner and I need to prepare for a step/second-parent adoption? – The step/second parent adoption process is slightly different in each jurisdiction. Your adoption attorney will provide for you a checklist of information needed to process the adoption petition. Information requested includes full legal name, address, social security number, employment status and salary. You will also need to prepare a list of all residences you and your partner have lived in for the last 28 years. You will be fingerprinted and must sign affidavits stating that you have never been convicted of a crime (if you have, supporting explanatory documentation is required) and that neither of you have been charged with child abuse. Many courts require letters of reference in support of your adoption petition.
Do both the biological parent and the adoptive parent have to provide information? – The answer to this question is usually yes if you are not married, and no if you are married. Some courts require that both the biological parent and the petitioning adoptive parent both apply to the court. This insures that the court receives all appropriate information regarding the adoption and that the biological parent consents to the process. However, as the courts learn about the specific needs of our families, they are adjusting to lessen the burden on biological parents in a Step/Second Parent Adoption. However, the courts are becoming much more familiar with our families, and our marriages, therefore the process is evolving. Your attorney should be able to tell you which protocols apply in your jurisdiction.
What if there is a known donor? – In situations where there is a known sperm or ova donor or a surrogate mother, the court requires that the donor/surrogate permanently surrender all legal rights to the child in order for the non-biological partner to adopt. If that donor/surrogate does not consent, the court will initiate a termination procedure. Moreover, a known donor cannot surrender their parental rights to a child unless there is either an agency or an actual person willing to legally adopt that child.
If you have questions about Second or Step Parent Adoption, please email me at: Anthony@TimeForFamilies.com, call on 212-953-6447, or fill out the contact form below.