Second-parent adoption
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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]
Second-parent adoption is relevant in the context of LGBTQ+ 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 LGBTQ+ 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.[citation needed] 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 partners,[4] stating that lack of formal recognition can cause health-care disparities for children of same-sex parents.[citation needed] The American Academy of Pediatrics also supports second parent adoption.[5][6] The American Academy of Child and Adolescent Psychiatry says 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, saying it is in 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 LGBTQ+ 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]
| U.S. States | Is second-parent adoption legal for married couples? | Is second-parent adoption legal for unmarried and/or domestic partners (whether same-sex or opposite-sex)?[1] | Are same-sex couples explicitly granted 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 |
States that allow second-parent adoption
In 2014, California enacted the Modern Family Act. Assembly Bill 2344 became Section 9000.5 of the Family Code. It speeds up the second-parent adoption process for couples that include the child's birth mother or parent who used a gestational surrogate.[13]
States with restrictions
Alabama
The Family Equality Council wrote in 2016 that second parent adoptions were unavailable in Alabama.[14]
Nonetheless, in 2016, in V.L. vs E.L., the U.S. 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.[15] This followed an attempt by the Alabama Supreme Court to overturn a second parent same-sex adoption that had been validly granted by Georgia.[14]
Stepparent adoption is legal in Alabama.[16] "[T]he first requirement to be met", says a 2022 article published by the Alabama State Bar, "is that the petitioning parties be 'husband and wife.' The adoption code makes no exception for couples living together who are not married."[17] Additionally, some courts have turned down requests to adopt a same-sex spouse’s child.[18]
Nebraska
In Nebraska, any single adult, stepparent, or married couple may adopt.[19][20]
In a 2002 court case, In re Adoption of Luke, 263 Neb. 365, the Supreme Court of Nebraska ruled that a biological parent's unmarried partner could not adopt their child in a second parent adoption.[21] As of 2024[update], Nebraska law says that "any minor child may be adopted by any adult person or persons", but it references In re Adoption of Luke.[22]
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 marriage, adoption, or biological relationship. According to the lawsuit, Nebraska case law prohibits second-parent adoption by an unmarried non-birth parent.[23][24]
North Carolina
In North Carolina, married couples can jointly adopt if they've been married at least six months.[25] A biological parent's spouse can adopt their child if the other biological parent waives their parental rights. This is called a stepparent adoption.[26]
Individuals can adopt as well.[25]
However, unmarried couples cannot adopt together. Second parent adoption is illegal.[27]
Utah
To adopt in Utah, one must either be married and have permission from their spouse (i.e., stepparent adoption) or single and not living with another person.[28][29] Anyone cohabitating in a non-marital sexual relationship cannot adopt in Utah.[16] The adoptee must also be 10 years younger than the adopter.[30] While there is no law specifically permitting unmarried couples to adopt (i.e., second parent adoption), Equality Utah says it is possible to obtain these adoptions.[31]
See also
References
- ^ a b c d "Legal Recognition of LGBT Families" (PDF). Retrieved January 21, 2024.
- ^ "NCLR - Adoption by Lesbian, Gay, and Bisexual Parents: An Overview of Current Law". Archived from the original on April 11, 2004. Retrieved December 11, 2017.
- ^ a b c Legal recognition of LGBT families NCLR
- ^ "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 October 19, 2013. Retrieved March 16, 2013.
- ^ 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.
- ^ a b "Confronting Homophobia in Europe" (PDF). Retrieved October 10, 2013.
- ^ a b "Professional Organizations on LGBTQ Parenting". HRC. Retrieved December 7, 2021.
- ^ "First Adoption by Gay Partner of Child's Parent". www.sloveniatimes.com. Archived from the original on March 8, 2019. Retrieved February 26, 2017.
- ^ "Same Sex, Same Entitlements". Human Rights and Equal Opportunity Commission. Retrieved May 13, 2008.
- ^ "Is second parent adoption possible in Australia?". Gay & Lesbian Rights Lobby. Archived from the original on July 19, 2008. Retrieved May 13, 2008.
- ^ "The Adoption Home Study Process". Child Welfare Information Gateway. Retrieved December 19, 2021.
- ^ a b Campaign, Human Rights. "Second Parent Adoption". Human Rights Campaign. Retrieved December 6, 2018.
- ^ "California Code, FAM 9000.5". leginfo.legislature.ca.gov. Retrieved December 2, 2024.
- ^ a b Alabama LGBTQ Family Law (November 2016) familyequality.org
- ^ "Cases". oyez.org. Retrieved January 21, 2024.
- ^ a b Adoption by LGBT Parents NCLR
- ^ Horn, Joshua (May 11, 2022). "FROM THE ALABAMA LAWYER: Stepparent Adoptions". Alabama State Bar. Retrieved November 25, 2024.
- ^ "Alabama Adoption Laws". Findlaw. Retrieved December 1, 2021.
- ^ "Nebraska Adoption Laws and Policies | Adoptive Families". Adoptive Families. Retrieved November 25, 2024.
- ^ "Guidance on same-sex couples adopting | OutNebraska". outnebraska.org. Retrieved December 1, 2021.
- ^ "In re Adoption of Luke, 263 Neb. 365 | Casetext Search + Citator". casetext.com. March 8, 2002. Retrieved November 25, 2024.
We have held that in a private adoption case where the prospective adoptive parent was not a spouse of the biological parent, there must be a relinquishment by the biological parent and the relinquishment must be valid in order for the child to become eligible for adoption.
- ^ "43-101. Children eligible for adoption". Nebraska Legislature. Retrieved November 25, 2024.
- ^ "Same-sex couple sues Nebraska to be recognized as legal parents". NBC News. Retrieved December 1, 2021.
- ^ "Porterfield, Williams, Williams and Williams v. Dept. of Health and Human Services: Complaint for declaratory judgment and injunctive relief" (PDF). October 4, 2021. Archived from the original (PDF) on October 4, 2021. Retrieved November 25, 2024.
- ^ a b "LGBT Families and the Importance of Stepparent Adoption". Haas & Associates, P.A. May 20, 2017. Retrieved December 7, 2021.
- ^ "Stepparent Adoptions vs. Second Parent Adoptions". www.attorneyreginataylor.com. Retrieved December 7, 2021.
- ^ "Securing the Ties That Bind: Second Parent Adoption in North Carolina - Videos". American Civil Liberties Union. Retrieved December 7, 2021.
- ^ "78B-6-117. Who may adopt -- Adoption of minor". Utah Code. May 4, 2022. Retrieved November 25, 2024.
- ^ "Adoption". Utah Legal Services. November 30, 2017. Retrieved November 25, 2024.
- ^ "Utah adoption act". Utah Legislature. September 8, 2023. Retrieved January 21, 2024.
- ^ "Parenting Laws | Equality Utah". www.equalityutah.org. Retrieved November 25, 2024.