All About Second Parent Adoptions for Gay Families

by Katharine Swan

If you are adopting a child with your partner, you may find yourselves overwhelmed by all the terms and legal issues and the import of the decisions you have to make. One of the most important terms for gay and lesbian adoptive parents is second parent adoption, a contentious legal proceeding that allows both you and your partner to have the legal rights of a parent.

What is a second parent adoption?

Second parent adoption, which is also known as co-parent adoption, is essentially a legal proceeding that allows two unmarried individuals to both be the legal parents of a child. Although second parent adoptions can also be utilized by heterosexual couples who reject the institution of marriage, they are most commonly performed so that gay or lesbian couples can share the legal rights of parenthood.

A gay or lesbian couple might seek a second parent adoption for a variety of reasons. For instance, one partner may have a biological child to which he or she would like the other partner to be a legal parent. The child could have been the product of a past heterosexual relationship; or, the couple could have intentionally had the child together, either by artificial insemination or surrogacy. Either way, the biological parent would like the non-biological parent to enjoy the same legal rights that he or she does.

A gay or lesbian couple might seek a second parent adoption when they are adopting a child together. Some states do not allow a same-sex couple to adopt a child in both partners’ names – only one of the partners may adopt the child. In these cases, second parent adoption allows the other partner to assume the same legal status of “parent.” Also, second parent adoption might be an option for gay or lesbian couples when one of the partners brings into the relationship a child whom he or she has previously adopted as a single individual.

Although a second parent adoption is an option for many gay and lesbian couples, third parent adoption is very rarely allowed. That is to say, if one partner brings a child from a previous relationship where both parents had legal rights to the child, the other parent must relinquish parental rights in order for the new partner to be eligible for a second parent adoption.

Why should we have a second parent adoption?

Imagine that you and your partner decide to adopt a child, but only one of you can adopt her or him. Your partner becomes the legal parent. However, you begin to find that your lack of legal parental rights is a problem: you can’t pick the child up at daycare without a consent form, you can’t make medical decisions or even authorize life-saving medical treatments without an authorization form, and if you and your partner split up, you will have absolutely no legal right to custody or even visitation. Even worse, if your partner should become incapacitated or die, you will have no legal rights to the child at all; despite the fact that you see yourself as the child’s parent, and he or she sees you as such, you will have no legal right to keep the child. Entire families have been torn apart for the lack of a second parent adoption.

Although many of these problems can be solved with the right paperwork – consent forms, authorization forms, custody agreements in case the parents split, and a will appointing the partner as the child’s legal guardian in the event that the legal parent dies – it takes a good deal of forethought and preparation. A second parent adoption removes the need for most of these precautions, as it gives both partners equal legal rights as the child’s parents. Should you and your partner split up, both of you have equal rights to custody and visitation; and should a medical emergency require it, both you and your partner will have equal right to make a decision regarding medical treatment for the child. Most importantly, second parent adoption is better for your child, as it reduces the chances of losing one of his or her parents due to a legal loophole.

Are my partner and I eligible for a second parent adoption?

Second parent adoption is clearly the best thing for gay and lesbian couples – and their children. Second parent adoptions keep families together when they might otherwise be torn apart. However, second parent adoption is not available to all couples.

The idea of second parent adoption was introduced by the National Center for Lesbian Rights in the early 1980s. Although the road has been difficult, due to the prejudice toward gays and lesbians – especially gay and lesbian parents – the availability of second parent adoptions has increased steadily over the past two decades. As of 2004, laws and state court rulings had legalized second parent adoption in the District of Columbia and eight states:

• California
• Connecticut
• Illinois
• Massachusetts
• New Jersey
• New York
• Pennsylvania
• Vermont

Other states have ruled at the trial court level to allow second parent adoption, meaning that second parent adoption can be pursued in some counties but not in others. These states include:

• Alabama
• Alaska
• Delaware
• Hawaii
• Indiana
• Iowa
• Louisiana
• Maryland
• Michigan
• Minnesota
• Nevada
• New Hampshire
• New Mexico
• Ohio
• Oregon
• Rhode Island
• Texas
• Washington

Only four states have outlawed second parent adoption: Colorado, Nebraska, Ohio, and Wisconsin. However, according to the NCLR, no state may refuse to recognize a second parent adoption that was granted in another state. In fact, in May of 2006, federal courts struck down an Oklahoma law that declared second parent adoptions void in Oklahoma.

Second parent adoptions are only one battle in the war to give gay and lesbian couples the same parental rights as heterosexual and married couples. However, over the years there has been much advancement in the laws regarding second parent adoptions, signaling hope for the gay and lesbian movement.

What is the best thing for my family?

If you and your partner live in an area that allows second parent adoption, there should be no question about whether or not to go through with the legal proceedings. As a parent, you must always consider not only what is best for you, but also what is best for your children and the family as a whole. A second parent adoption guarantees your child a safer, more secure home by giving both you and your partner equal rights as a parent.

With a second parent adoption, you ensure that members of your family cannot be separated against their will and also prevent harm from befalling your children because the “other” parent does not have the decision-making authority of a legal parent. The protections provided by a second parent adoption make it a necessity for all gay and lesbian parents and their children.

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