Family Law

Second Parent Adoptions: The Basics

By Melissa Heinig, Attorney
Learn more about second parent adoption.

Why Choose Second Parent Adoption?

When the U.S. Supreme Court issued its historical marriage equality ruling, legal marriage became a reality for many same-sex couples. With same-sex marriage recognition came the availability of stepparent adoption—a type of adoption that allows a legal spouse to adopt the other spouse's biological (or legal) child. For many couples who wish to remain unmarried, stepparent adoption is not an option, but in some states, unmarried partners may be able to pursue a second parent adoption.

It is not unusual for couples to live together and raise a family. For some, a partner may have a child from a previous relationship, for others, creating a family involves using an anonymous sperm donor, egg donor, or surrogate to conceive a child. In these types of situations, states will only consider the biological parent as the “legal” parent, which can create instability, both emotionally and legally. If the second parent can secure parental rights though a second parent adoption process, the state will recognize both individuals as legal parents of the child. The second parent will have all the same rights and responsibilities to the child as the first parent, including:

  • the ability to make legal decisions regarding the child's health, safety, and welfare
  • either parent can continue caring for the child in the event of the other parent's death, and
  • the second parent will be financially responsible for the child until the child reaches the age of majority or becomes emancipated.

Without an official adoption, couples may want to consider entering into parentage and custody agreements to try and secure parental rights. But courts sometimes disregard these parentage agreements, and the non-biological parent may face an uphill battle enforcing parental rights if the couple later separates. A second parent adoption protects the non-biological parent's rights, even if the couple breaks up.

How Does Second Parent Adoption Work?

If second parent adoption seems like the right path for your family, the first step is for the potential adoptive parent to submit an adoption petition (written request) to the court. Once the parent completes the application, the couple will need to participate in a home study with a court investigator or social worker. The goal of a home study is to show the court that your home and family situation can meet the child’s best interests. During the home study, the investigator will visit your home, speak with both partners, interview the child, and submit a written report to the court with their findings and recommendation. Once the application and home study are complete, the couple will attend a court hearing to finalize the adoption.

After the court approves the adoption, the non-biological parent will be recognized as the child’s second legal parent, and in the eyes of the law, has the same rights and responsibilities as the biological parent. A separation will not, by itself, impact the adoptive parent’s rights and responsibilities.

Does My State Allow Second Parent Adoption?

As of December 2016, the states that permit second parent adoptions include:

  • California
  • Colorado
  • Connecticut
  • D.C.
  • Idaho
  • Illinois
  • Indiana
  • Maine
  • Massachusetts
  • New Jersey
  • New York
  • Oklahoma
  • Pennsylvania
  • Vermont

What Can I Do if My State Doesn't Allow Second Parent Adoption?

If your state doesn’t permit second parent adoption, you should work with an attorney to create custody and parenting agreements that help protect your rights. It’s important to remember that a court doesn't have to enforce these agreements, and if your state doesn’t permit second parent adoption, it’s likely the court will not recognize you as a parent.

While adoption is the ideal solution for non-biological parents, some examples of agreements that may bring peace of mind to your family may include:

  • custody agreements—this agreement should detail who the child will live with in the event of a separation, who the child will visit during the week or weekends, who will make decisions about medical care, religion, housing, and schooling, and what type of financial support each parent will provide
  • co-parenting agreements—this type of agreement should explain what each parent’s responsibilities are for the care of the child while in the relationship, and should also discuss what changes will occur in the event of a separation
  • estate planning—each parent should prepare a will or trust that designates the other as the child’s guardian in the event the other parent dies. Because the state does not recognize the non-biological parent as a legal parent until an adoption occurs, the biological parent should create this document as soon as possible to ensure the other parent is the child’s guardian in the event the biological parent dies
  • power of attorney—this document allows you to identify who should take care of your child if you are unable to make decisions because of a medical issue.

For more information on these agreements or second parent adoption, contact an adoption attorney in your state.

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