Second Parent Adoptions in the Gay Community

Christine J. Klein, Esq.

December 2009

Recently, I received a telephone call from a woman asking for help because she thought she might lose her child. She and her partner were breaking up and she had never adopted the child they had conceived and raised together. I then had to deliver the heartbreaking news that she was absolutely correct. She was going to lose her daughter and there was nothing I could do to help. As the non-biological parent, she had no right to the child she had raised since its birth, not even visitation rights.

I wish I could say this is the first time this has happened, but it is a devastating reality in our community and it happens far too often. Under the current law in the State of New York, a second parent, who does not adopt, has no legal rights. If a couple breaks up, the biological parent will have sole custody and the non-biological parent has no standing to seek either custody or visitation. If the biological parent dies without a will, his or her family can be given custody of the child. Moreover, a known sperm donor or surrogate could also seek custody of the child. Without an adoption to terminate their parental rights, surrogates and donors have the right to seek custody and visitation, regardless of any contract you may have with them.

But this can be prevented. A second-parent adoption can protect your family and should be part of a family plan, right from the start. An adoption will give the non-biological parent all the rights and responsibilities of any other parent. If the couple breaks up, custody and child support issues will be determined by the same rules that apply to all parents. If one partner dies, the other parent will retain custody of the child(ren). As part of the adoption process, the donor or surrogate signs their consent and surrenders any legal rights.

Many delay adopting, because they believe that they will never break up. But breakups do happen and to couples we never thought it would. Another reason people put it off is because they think that a will, leaving custody to the non-biological parent is enough protection if their partner dies. But a will could be challenged later or a technical defect might prevent the Court from probating the will. The Court will then determine what is in the "best interest" of the child. Do you want to leave your rights as a parent to the judgment of a judge?

It is easy to protect yourself and your family. A second-parent adoption is a simple process by which your attorney will prepare and submit the necessary documentation to the court. After a brief home study, and approximately four to six months later, you will appear in court and the judge will, in most cases, sign the Order granting the adoption. Both parents will now enjoy the benefits and share the legal and financial responsibilities of parenthood. You will have protected yourself, your partner and your children.

Christine J. Klein has been practicing law in the New York area for more than 12 years. She has a general family law practice, focusing on issues which affect the LGBT community, including adoption, reproductive law, child custody, dissolution of marriage and civil unions, cohabitation agreements and more.