Second-parent adoption

The second-parent adoption or co-parent adoption is a process by which a partner, who is not biologically related to the child, can adopt their partner's biological or adoptive child without terminating the first legal parent's rights. This process is of interest to many couples, as legal parenthood allows the parent's partner to do things such as: make medical decisions, claim dependency, or gain custody in the event of the death of the biological parent.[1]

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Second-parent adoption is of significant importance in the context of the LGBT adoption. In the United States, second-parent adoption was started by the National Center for Lesbian Rights (formerly the Lesbian Rights Project) in the mid-1980s.[2] The NCLR offers a legal guide that covers the basics of second-parent adoption.[1] According to the NCLR, second parent adoption is the most common means by which LGBT non-biological parents establish a legal relationship with their child.[3]

Family law varies from state to state in America. Courts in many states have granted second-parent adoptions to same-sex couples, though there is no statewide law or court decision that guarantees this. In fact, courts within the same state but in different jurisdictions often contradict each other in practice. According to the NCLR, it is legally advisable for LGBTQ+ parents to get an adoption or parentage judgment to ensure that their parental rights are fully protected in every state.[3]

The American Medical Association (AMA) supported second parent adoption by same-sex partner,[4] stating that lack of formal recognition can cause health-care disparities for children of same-sex parents. The American Academy of Pediatrics also supports second parent adoption.[5][6] The American Academy of Child and Adolescent Psychiatry has stated that they oppose all discrimination based on sexual orientation or gender identity regarding custodial, foster, or adoptive rights.[7] The American Bar Association supports second parent adoptions by unmarried persons and it is the best interest of the child.[7]

Countries other than America similarly support second-parent adoption. In July 2011, The Ministry of Labour, Family and Social Affairs of Slovenia stated that the existing law allows for second-parent adoption.[6][8] In the context of LGBT adoption and parenting in Australia, As of 2008, the best option was to apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. It provides an important "status quo" if the birth mother were to die, preventing other family members from taking immediate custody of the child.[9][10]

An adoption home study must be completed for any second-parent wanting to adopt. The adoption home study process ensures that the child is placed in a home that will best suit their needs. This process is dependent upon the state in which the adoption will take place.[11]

United States

If second-parent adoption is not a legal option in certain counties or states, the Human Rights Campaign suggests taking precautionary steps, such as: a written custody agreement or a co-parent agreement between partners.[12] Also suggested is gathering evidence to prove you are a family.[12]

Note that where second parent adoption is illegal, it is illegal for both different sex and same-sex couples.[3]

Legal status of adoption by same-sex couples around the world:
  Joint adoption allowed
  Second-parent adoption allowed
  No laws allowing adoption by same-sex couples and no same-sex marriage
  Same-sex marriage but adoption by married same-sex couples not allowed
American States Do they allow second-parent adoption for married couples? Do they allow second-parent adoption for unmarried and/or domestic partners (whether same-sex or opposite sex)?[1] Do they explicitly state they allow same-sex couples the right to second-parent adoption?[1]
Alabama Yes No Yes (in certain counties)
Alaska Yes Yes No
Arizona Yes Yes No
Arkansas Yes Yes No
California Yes Yes Yes
Colorado Yes Yes Yes
Connecticut Yes Yes Yes
Delaware Yes Yes Yes (in certain counties)
District of Columbia Yes Yes Yes
Florida Yes Yes Yes (in certain counties)
Georgia Yes Yes Yes (in certain counties)
Hawaii Yes Yes Yes (in certain counties)
Idaho Yes Yes Yes
Illinois Yes Yes Yes
Indiana Yes Yes Yes
Iowa Yes Yes Yes (in certain counties)
Kansas Yes No No
Kentucky Yes No No
Louisiana Yes Yes Yes (in certain counties)
Maine Yes Yes Yes
Maryland Yes Yes Yes (in certain counties)
Massachusetts Yes Yes Yes
Michigan Yes Yes No
Minnesota Yes Yes Yes (in certain counties)
Mississippi Yes Yes No
Missouri Yes Yes No
Montana Yes Yes No
Nebraska Yes No Yes
Nevada Yes Yes No
New Hampshire Yes Yes No
New Jersey Yes Yes Yes
New Mexico Yes Yes No
New York Yes Yes Yes
North Carolina Yes No No
North Dakota Yes Yes No
Ohio Yes No No
Oklahoma Yes Yes Yes
Oregon Yes Yes Yes (in certain counties)
Pennsylvania Yes Yes Yes
Rhode Island Yes Yes Yes (in certain counties)
South Carolina Yes Yes No
South Dakota Yes Yes No
Tennessee Yes Yes No
Texas Yes Yes Yes (in certain counties)
Utah Yes No No
Vermont Yes Yes Yes
Virginia Yes Yes Yes
Washington Yes Yes Yes (in certain counties)
West Virginia Yes Yes Yes (in certain counties)
Wisconsin Yes No No
Wyoming Yes Yes No

Alabama

In 2016, in V.L. vs E.L., the Alabama Supreme Court attempted to overturn a second parent same-sex adoption that was validly granted by Georgia.[13] The United States Supreme Court ruled that The Full Faith and Credit Clause of the Constitution requires the Alabama state courts to recognize a Georgia state court’s adoption order.[14]

In Alabama, while there currently is no law that explicitly prohibits second-parent adoption, some courts have turned down requests to adopt a same-sex spouse’s child.[15] According to the Family Equality Council, second parent adoptions are currently not available in Alabama.[13]

Stepparent adoption is legal in Alabama.[16]

Nebraska

In Nebraska, any adult or a married couple jointly may adopt, but an unmarried couple may not.[17]

In 2021, an unmarried lesbian couple sued Nebraska's health department for not allowing both of them to be on their son's birth certificate. The Nebraska Department of Health and Human Services denied their request. They stated that the only routes to legal parenthood are through marriage, adoption, or being biological related. According to the lawsuit filed, Nebraska case law prohibits second-parent adoption by an unmarried non-birth parent.[18][19]

Stepparent adoption is legal in Nebraska.[20]

North Carolina

Second parent adoption is illegal in North Carolina.[21] Married couples can jointly adopt if they've been married for 6 months or more.[22] Individuals can adopt as well.[22]

Stepparent adoption can only occur in North Carolina if the child's second biological parent waives their parental rights. This is only if the second biological parent is alive.[23]

Utah

Second parent adoption is illegal in Utah. To adopt in the state of Utah, one must either be married and have permission from their spouse or single and not living with another person.[24] Anyone cohabitating in a non-marital sexual relationship cannot adopt in Utah.[16] The adoptee must also be 10 years younger than the adopter.[25]

Stepparent adoption is legal in Utah.[26]

See also

References
  1. "Legal Recognition of LGBT Families" (PDF).
  2. "NCLR - Adoption by Lesbian, Gay, and Bisexual Parents: An Overview of Current Law". Archived from the original on 2004-04-11. Retrieved 2017-12-11.
  3. https://www.nclrights.org/wp-content/uploads/2013/07/Legal_Recognition_of_LGBT_Families.pdf
  4. "H-60.940 Partner Co-Adoption, H-65.973 Health Care Disparities in Same-Sex Partner Households "AMA Policy regarding sexual orientation"". Ama-assn.org. Archived from the original on 19 October 2013. Retrieved 16 March 2013.
  5. American Academy Of, Pediatrics (August 2009). "Policy Statement—AAP publications retired and reaffirmed". Pediatrics. 124 (2): 845. doi:10.1542/peds.2009-1415. PMID 19651598. S2CID 34222261.
  6. "Confronting Homophobia in Europe" (PDF). Retrieved 2013-10-10.
  7. "Professional Organizations on LGBTQ Parenting". HRC. Retrieved 2021-12-07.
  8. "First Adoption by Gay Partner of Child's Parent". www.sloveniatimes.com. Archived from the original on 2019-03-08. Retrieved 2017-02-26.
  9. "Same Sex, Same Entitlements". Human Rights and Equal Opportunity Commission. Retrieved 13 May 2008.
  10. "Is second parent adoption possible in Australia?". Gay & Lesbian Rights Lobby. Archived from the original on 19 July 2008. Retrieved 13 May 2008.
  11. "The Adoption Home Study Process". Child Welfare Information Gateway. Retrieved 19 December 2021.
  12. Campaign, Human Rights. "Second Parent Adoption". Human Rights Campaign. Retrieved 2018-12-06.
  13. https://www.familyequality.org/wp-content/uploads/2018/06/Alabama-LGBTQ-Family-Law-WEB.pdf
  14. https://www.oyez.org/cases/2015/15-648
  15. "Alabama Adoption Laws". Findlaw. Retrieved 2021-12-01.
  16. https://www.nclrights.org/wp-content/uploads/2013/07/2PA_state_list.pdf
  17. "Nebraska Adoption Laws and Policies | Adoptive Families". Retrieved 2021-12-01.
  18. "Same-sex couple sues Nebraska to be recognized as legal parents". NBC News. Retrieved 2021-12-01.
  19. "Archived copy" (PDF). Archived from the original (PDF) on 2021-10-04. Retrieved 2021-12-01.{{cite web}}: CS1 maint: archived copy as title (link)
  20. "Guidance on same-sex couples adopting | OutNebraska". outnebraska.org. Retrieved 2021-12-01.
  21. "Securing the Ties That Bind: Second Parent Adoption in North Carolina - Videos". American Civil Liberties Union. Retrieved 2021-12-07.
  22. "LGBT Families and the Importance of Stepparent Adoption". Haas & Associates, P.A. 2017-05-20. Retrieved 2021-12-07.
  23. "Stepparent Adoptions vs. Second Parent Adoptions". www.attorneyreginataylor.com. Retrieved 2021-12-07.
  24. "Adoption". Utah Legal Services. 2017-11-30. Retrieved 2021-12-01.
  25. https://le.utah.gov/xcode/Title78B/Chapter6/78B-6-S118.html?v=C78B-6-S118_1800010118000101
  26. "Utah Code Section 78B-6-117". le.utah.gov. Retrieved 2021-12-01.
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