Second-Parent and Step-Parent Adoption:
A second-parent adoption allows the partner of the legal parent to share parental rights and obligations with the legal parent. If the couple is married, the courts generally refer to the adoption as a step parent adoption. The legal parent may be a birth mother, someone who adopted as a single person, or a man who has a child through a surrogacy arrangement outside of New York.
(Note: It is illegal to enter into a surrogacy arrangement in the State of New York).
How can we protect our parental rights?
Many people in and outside of the LGBT community are forming non-traditional families in new and interesting ways, whether they are partnered or not. The laws regarding assisted reproductive technology and the legal recognition of the children born as a result of these methods varies from state to state.
Along with these new methods of alternative family creation comes the need for legally protecting the rights of parents, since parental rights and obligations which are automatically given to married couples – whether same-sex or opposite-sex – in one state, could be jeopardized or unenforceable when traveling between Sstates or relocating for employment purposes to a state which does not automatically give those same rights to same-sex couples, even if they were married at the time of birth of their child.
In New York, there is a presumption that a child born of the marriage is the child of both spouses regardless of the child’s genetic ties to the parent. However, that presumption is rebuttable. This leaves open the possibility that where parentage is called into question, a court might not recognize the parentage of the non-biological parent, despite the parents being married at the time of the child’s birth. Even more alarmingly, there are conflicting court decisions in New York State regarding whether the presumption of parentage applies to children born to same-sex spouses.
The laws surrounding presumptions of parentage vary from State to State, and, therefore, the non-biological parent’s status as a parent, based solely on marital status, might not be secure. Although all States must now recognize same-sex marriages due to the Supreme Court’s decision in Obergefell v. Hodges in June 2015, there is the potential that a more hostile State court would use the presumptions of parentage to undermine our families. A court order declaring the parentage of the non-biological parent, however, is impossible for a court to ignore and, therefore, it is our opinion that a second-parent or step-parent adoption remains the best way to protect our families.
Because of the possibility that the non-biological parent’s status as parent would not be recognized, we strongly recommend that our clients complete second (step) parent adoptions, even if they are married when their child is born. When one spouse adopts the other spouse’s biological child, the legal rights and obligations of the non-biological parent are solidified and irreversible.
Carol L. Buell Law & Mediation, PLLC. helps protect your parental rights through second-parent adoptions, stepparent adoptions, gay adoption, known donor and co-parenting agreements.
Second Parent Adoption and traveling in the US or living abroad
Marriage for same-sex couples may be legal in all states, but parental rights for non-biological parents are not necessarily honored in all states, and are not honored by all countries Therefore, for married same sex couples, being listed as “Parent” on your child’s birth certificate will not prove legal guardianship in some states and outside of the U.S. This “portability” problem creates custody and support battles between parents, and anxieties and trauma for intact families and their children if they want or need to move about the country. (For a more detailed analysis see In “Matter of Sebastian” where attorney Carol Buell represented the co-parents)
We highly recommend that our clients complete what is commonly known as a second (step) parent adoption, so that the “non-biological / non-legal” parent’s legal relationship to his or her child is secured through adoption.
Like other kinds of adoptions, second (step) parent adoptions are given “full faith and credit” by every other state in the country, so that when you adopt your child, you will be free to travel and move about the country and preserve your legal status. Until such time as all state laws fully recognize your rights as a parent, custodial rights and/or support obligations concerning your children could be in jeopardy as you travel from state to state.
It is important to note that there are many steps involved in an adoption and the courts treat it very seriously. You must have legal representation in New York State in order to adopt a child.
Known donor agreements, co-parenting agreements and alternative family creation
There may be legal ramifications of entering into alternative family arrangements through assisted reproductive technology (ART), alternative / artificial insemination or the blending of families. It’s critical to understand those legal consequences and develop written agreements that protect and support your decisions and agreements with respect to custody, visitation and child support.
And since the courts may not honor your agreements in this area, alternative methods of resolving any disputes which may arise between the parties is important. These methods include counseling, mediation and collaborative law.
For families where adoption is not possible, whether because the blended family is not a two parent model, or a legal parent is unwilling to agree to a second parent adoption, it may be beneficial to create a co-parenting and support agreement. These agreements will cover the following areas: