New NY legislation prevents courts from denying child adoptions to petitioners that are already legally-recognized parents

Governor Andrew Cuomo announced he signed legislation (S.3999/A.460) prohibiting New York State courts from denying child adoptions to petitioners who are already a legally-recognized parent solely on that basis.

The bill, signed by Cuomo, protects parents whose names were not on the birth certificate, same-sex couples, and parents who had a child through surrogacy from being denied adoptions when the parent petitioning is already recognized as the child’s parent.parent adoption

“All parents deserve the same rights and the same recognition under the law – period – and it’s unconscionable that this isn’t the case in every corner of this nation,” Governor Cuomo said. “These new protections will help ensure that all families are treated with fairness and equality and that no parent encounters unreasonable barriers in a court of law.”

“We are thankful to the countless same-sex couples who provide loving homes for children across New York,” said Lieutenant Governor Kathy Hochul. “Today’s action will protect the rights of these couples and furthers our commitment to ensure equality for the LGBTQ community.”

Senator Brad Hoylman said, “While New York’s laws provide strong legal protections for LGBTQ families like my own, sadly that’s not the case everywhere. With the passage of this law, we are reaffirming that non-biological parents have access to adoption proceedings in every New York court, regardless of whether state law already recognizes them as the legal parent of their children. By allowing these adoptions, we give parents traveling or moving outside New York State the opportunity to keep their families legally secure. I thank Senate Majority Leader Andrea Stewart-Cousins, Senator Velmanette Montgomery, and Assembly Member Amy Paulin for their work in passing this vital legislation, and Governor Cuomo for his continued support of the LGBTQ community.”

Assembly Member Amy Paulin said, “Despite the fact that judges already have the ability to grant adoption petitions and routinely have done so, there have been times where these petitions have been denied, causing surprise and stressful uncertainty for same-sex couples. With this law, we provide a guarantee and security that parents’ rights are recognized, both in New York and in other jurisdictions.”

While the spouse of a woman who gives birth to a child is presumed to be the child’s parent, same-sex couples find themselves in a legally precarious position when traveling beyond New York State, in places that do not fully respect the rights of non-biological parents. Under the new law, a New York adoption would be honored in another jurisdiction. This gives children the security that both their parents will be legally recognized wherever family members may be.

This new law takes effect immediately.

Click here to read the language of the Bill., September 17, 2019

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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

Same-Sex Parents Still Face Obstacles Under New York’s Standing Rules

Prior to the tragic events of Sunday, June 13, 2016 in Orlando, Florida, one might have felt optimistic about the evolving societal acceptance of and respect for same-sex parents and the corresponding progressive state of family and matrimonial law.

We shared in the sense of uplift from the recent United States Supreme Court decisions in United States v. Windsor and, especially, in Obergefell. v. Hodges, decided a little over one year ago on June 26, 2015. Obergefell dealt in sweeping fashion with discriminatory and unconstitutional objections to marriage for same-sex couples. As set forth in Justice Anthony Kennedy’s dramatic and moving language, the need for same-sex parents, and the children of those relationships, to be granted the social dignity and the many societal benefits that go along with stepping into the light of mainstream acceptance by virtue of a nationwide right to marry is required by the equal protection mandates of the 14th Amendment of the U.S. parents adoption

In concluding that its “analysis compels the conclusion that same-sex couples may exercise the right to marry,” 576 U.S. 12 (2015), the Supreme Court in Obergefell detailed not just the importance of being able to enter the institution of marriage, but the need for same-sex couples to do so on fully equal footing as other couples, through the front door, and stressed in its exhaustive analysis that the focus should not be on how these couples love, but that they love and wish for that love to be reflected in their social standing.

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition. Goodridge, 440 Mass., at 322, 798 N.E. 2d at 955″ cited at 576 U.S. 13 (2015).

As this court held in Lawrence, same sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. 539 U.S. at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

576 U.S. at 14.

Further, Justice Kennedy singled out the importance of the right to marry to the children of these relationships.

Excluding same sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families to be somehow lesser. They also suffer the significant costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

576 at U.S. 15.

In New York, the passage of the Marriage Equality Act in 2011 directed that all of the laws, benefits and obligations bestowed by the Domestic Relations Law with regard to marriage be read and implemented without regard to sexual orientation, and, if necessary to do that, in a gender neutral way.

Section 10-a. Parties to a marriage.

1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender specific language or terms shall be construed in a gender-neutral manner in all such sources of law.

Yet, despite the passage of the Marriage Equality Act and the newfound nationwide ability to marry, the courts in New York are contending with circumstances in which same-sex families were formed and children brought into them by using strategies that pre-date the ability of same-sex couples to marry. This approach has potentially devastating consequences when those families and their respective rights are addressed in divorce and family court proceedings. These problems arise from, and the courts continue to wrestle with the vestiges of, a rule established by the New York Court of Appeals a generation ago in Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which set the stage for categorical discrimination against same-sex parents based upon their lack of a biological or adoptive relationship to a child.

The impact of Alison D. was eroded somewhat by the Court of Appeals decision in Debra H. v. Janice R., 14 N.Y.3d 576 (2010), which, through application of comity, recognized parental standing of a non-biological non-adoptive parent in 2010 based upon Vermont’s judicially created rules granting standing based upon the couple’s civil union in Vermont. However, without the right to marry or enter into a civil union in New York at the time, children of unmarried same-sex couples in New York were not afforded the same benefits and protections.

This discrimination is not so easily remedied by the directives of the Marriage Equality Act because many of the parents involved in these situation were not or are not married at the time that their children are born and because the conceptual framework for the denial of standing is based upon a biologically based terminology that is found throughout the family and matrimonial law. This terminology reflects a fixation with the biomechanics of conception, a fixation which runs deeper than mere gender assumptions. Instead of a focus on the “best interest” of children, which is the bedrock determination of all other matters related to their custody and welfare in New York matrimonial and family law, the New York Supreme, Family and Surrogate’s Courts continue to trip over the threshold issues of “standing” when it comes to same-sex parents because of references to “birth” parents or the heterosexual and gender assumptions implied by the use of the word “paternity.” For example, a “paternity” test directed in Family Court proceeding continues to only apply to men and only to establish the biological relationship of men to children obviously born to women. Perforce, this excludes same-sex couples.

By Meg Canby and Caroline Krauss Browne

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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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Two Moms Talk About Second Parent Adoption

Not all LGBT parents in the U.S. can put both parents’ names on their children’s birth certificate.  Second Parent adoption can help.

And even if they can, many lawyers still advise that gay couples go through a second parent adoption as a means to protect their parental rights to their children.

Brandy and Susan from The Next Family discuss their second parent adoption experience so other LGBT parents can gain some insight.

The moms explain the importance of second parent adoption by providing the example of traveling internationally to countries that don’t recognize same-sex marriage or families. By going through the process, step parent adoptions give both parents the same rights to their children thus protecting them in the U.S., overseas, and even in custody cases.second parent adoption

“And at the end of the day, I think it’s wise to do it,” Brandy said.

Though she does share her displeasure with the entire process that LGBT parents have to go through that straight parents do not:

“We fight so hard for our LGBT rights and we’ve gotten to this point and this place in our country…and [step parent adoptions] sort of takes you back. Like, really?”

Brandy and Susan explain the process that their family went through when it came to their step parent adoption. It involved finding a good lawyer, filling out an adoption application, and speaking with a social worker.

When speaking about the social worker experience, Brandy said, “They were asking us sort of ridiculous, in my opinion, parenting questions.” She also adds that you should prepare yourself for this experience which may be uncomfortable: “I think it was really insulting to me that they were asking her these questions and me these questions and I had had this child and we had together made this decision together to have this child.”

Following the social worker meeting, families will have to go to court to complete the adoption process.

For Susan’s court date, the judge asked her, “Why should I grant you this right to adopt this child?” Susan said she responded quite awkwardly with, “Well, I’m kind of doing a lot of mother things.” She was happy though with how the judge responded, “You’re the mother and that’s why I’m doing it.” Susan said she could tell that the judge thought that the entire process was also a “silly precursor” to establish her parental rights.

Click here to read the entire article.

By Alex Temblador – – April 15, 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

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


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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Marital presumption discrepancy Wisconsin’s laws

Despite gay marriage legalization, LGBTQ community still struggles with marital presumption laws

One Wisconsin couple tried working their way through the courts to “ungender,: or change marital presumption paternity laws. Wisconsin’s 2nd District Court of Appeals upheld a judge’s decision Nov. 4 to dismiss a gay couple’s request for one partner to become the legal parent of her wife’s child. Marsha Mansfield, a University of Wisconsin law professor, said the court dismissed the request because the couple did not go through the correct legal process. She said they filed their case as an adoption, when they were actually aiming to change the constitutionality of a law.

When they first filed their request, Mansfield said the couple would have needed to notify former Attorney General J.B. Van Hollen, an opponent of gay marriage, which they failed to do.

Emily Dudak Taylor, the attorney on the couple’s case, said the Attorney General was present during the process and at the appeal, and the case being filed as an adoption should not have mattered. She said writing the decision off as a simple procedural error was a skewed way of viewing the issue.

“It’s completely unfair and unequal,” Taylor said. “It’s not just a minor procedural issue at all.”

The decision indicates the court’s avoidance of the greater issue at hand, stating that marriage equality has “hit a wall” with implementation on the state level, Taylor said.

She said the goal of her case was to “ungender” the parental presumption of paternity, a law that grants husbands the status of legal parent and placement on the birth certificate of their wives’ children simply by signing a document at the hospital, without investigating how the child was conceived.

The law’s wording needs to be ungendered from husband to spouse, and father to parent, so the parental presumption can also apply to a female spouse, Taylor said.

Currently, since the law only deals with heterosexual couples, it is unclear what gay couples are supposed to do in cases where one partner has a biological child through artificial insemination, Taylor said. Sometimes her wife becomes the legal parent, and sometimes they have to go through an unnecessary adoption process, she said.

Lesbian women shouldn’t have to adopt their own children simply because they were conceived through artificial insemination, Taylor said.

Click here to read the entire article.


by Emily Hamer, December 1, 2015, The Badger Herald

Do I need a Step Parent Adoption if I’m married?

Do I have to go through a Step Parent Adoption if I am married?

I get this question more than any other; marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family without the need for a step parent adoption, sometimes called a second parent adoption or two parent adoption. Unfortunately family law has not caught up to the realities of how we create our modern families.

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. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically. The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.” Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

Marriage equality alone doesn’t secure a family without the need for a step parent adoption!

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states. For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples. That case is called “Matter of Paczkowski v. Paczkowski.” In that case, 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.”

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 but there is legislation in committee in Albany that may change that.

Step parent adoption

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process. It is a true leap of faith. Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost. With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must. Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second parent adoption in order to keep the numbers low. Often, the cost of a pre-birth order is less than a second parent adoption.

In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order. Some states do not provide for pre-birth orders. Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent. California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption or a step parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a step parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides. Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born. Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents. This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order. For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established. The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption. The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process. The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents. The adoption order is the product of a fully litigated judicial process. Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent. For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage. These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters. But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island. Anthony is the founder of, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

by Anthony M. Brown – September 16, 2015

The Essential Nature of Second Parent Adoption

What is Second Parent Adoption?

Second parent adoption (also sometimes known as co-parent adoption) is the administrative process through which one partner in a same-sex relationship can become the legally recognized parent of their partner’s biological or adopted child, along with their partner and without the other partner’s parental rights being terminated. Although morally parents should not have to adopt their own children, for whom they planned either biologically through their partner or through adoption, it is strongly advisable to go through this process in order to ensure the security of the child in case of the initial parent’s death, and for logistical purposes when parental responsibility is required in legal, medical and other situations. This is advisable even if the parents are married or in a civil union, as some States and countries do not recognize the legal relationship of the parents to be an indicator of their relationship to their child. Second parent adoption is usually the process taken by unmarried couples, as step-parent adoption is available for those adopting their spouse’s child.


Why choose Second Parent Adoption?

Second parent adoptions are widely viewed by LGBT legal rights experts as the best option for children, as it has been found that it increases emotional, psychological, legal and financial security. It is common to think that if you are married or in a civil partnership, you are legally safe when it comes to your rights as a parent. In some places, this is true. New York, for example, recognizes both same-sex partners as parents of a child without second parent adoption being a legal requirement. If, however, you ever want to visit relatives in a different State or go travelling to a different country, it is essential that you are legally recognized as the parent on an international level. Your legal parental status affects decisions such as your child’s healthcare, where they go to school and who would look after them in case of parental death. In 2014 a controversial decision was reached by a Judge in New York, who refused to grant a second parent adoption based on the fact that the couple’s rights were protected whilst they remained in New York.


Differences in State Law

Although every State must allow adults in same-sex relationships to petition for secondSame-sex Parenting Wins Increased Rights in Oklahoma parent adoption if the partners are married, the same does not apply for those in relationships that are not legally binding. Fourteen States currently allow the process for non-married same-sex partners:

California; Colorado; Connecticut; District of Columbia; Idaho; Illinois; Indiana; Maine; Massachusetts; New Jersey; New York; Oklahoma; Pennsylvania and Vermont.

These fourteen further States have allowed the process for couples at some point:

Alaska; Delaware; Florida; Georgia; Hawaii; Iowa; Louisiana; Maryland; Minnesota; Oregon; Rhode Island; Texas; Washington and West Virginia.

There are also States that prohibit or limit fostering and adoption by LGBT adults. The current limitations include:


  1. The Alabama Court of Appeals ruled that (unmarried) same-sex couples cannot use the stepparent adoption procedures. However, married same-sex spouses must be allowed to do so.
  2. Arizona gives a preference to married couples over a single adult in adoption placement.
  3. The Kansas Court of Appeals recently ruled that Kansas does not permit second parent or co-parent adoption by unmarried couples.
  4. A Kentucky court has said that Kentucky does not permit unmarried couples to use the stepparent adoption procedures.
  5. Mississippi has a statute that prohibits adoptions by couples of the same gender, but under the Supreme Court ruling, Mississippi must allow same-sex spouses to adopt on equal terms with other married couples.
  6. Nebraska does not permit co-parent adoption by unmarried couples.
  7. North Carolina does not permit co-parent adoption by unmarried couples.
  8. Ohio does not permit co-parent adoption by unmarried couples.
  9. Utah does not permit anyone cohabiting in a non-marital sexual relationship to adopt. Utah also gives a preference to married couples over any single adult in adoptions or foster care placement.
  10. Wisconsin does not permit second parent or co-parent adoption by unmarried couples.

Getting Help with The Process

Deciding to adopt a child is one of the biggest decisions you will ever make. It is a decision made from a place of extraordinary love and compassion and one that will take you on an incredible journey; a pathway that is hopefully filled with joy and ends with the family you dream of. It can also be an overwhelming experience; dealing with myriad professionals such as lawyers, agencies and physicians can be stressful and it is best to start from a place of knowledge and confidence. Anthony M. Brown is head of the Nontraditional Family and Estates Division of the law firm of Albert W. Chianese & Associates and specializes in same-sex relationship estate planning and co-parent adoption. If you have questions about adoption you can get in touch with him here.

Step Parent Adoption

To read more about Step Parent Adoption, click here.