Second Parent Adoptions (and Other
Alternatives for Gay Families)

by Katharine Swan

(Editor’s Note: for a relevant article with some more facts on this important subject, read this article by TheRainbowBabies.com columnist Joyce Kauffman) click here: Protect Your Family

Despite the joys of parenting, having or adopting children often poses a unique set of difficulties for gay and lesbian couples. Biological parents and married couples are automatically granted parental rights to their children, such as the right to make important decisions about their children’s medical care and education, and the right to contend for custody, visitation, and/or child support in the event of a breakup. In gay and lesbian couples, however, the situation is different. One of the parents might be the biological parent, and therefore have all of the natural and legal rights that go with that status. In other cases, a same-sex couple will decide to adopt a child, but only one of them can be on the adoption paperwork.

Regardless of how the situation arises, the lack of parental rights for both parents is a problem for a family, particularly in the event that the couple breaks up or the legal parent becomes incapacitated. Despite the second parent’s active role in parenting the child, they may find themselves unable to so much as pick the child up from daycare without a signed note from the legal parent.

In order for both parents in a gay or lesbian relationship to enjoy the full rights of parenthood, extra precautions must be taken. The solution to the parenting problem can be reached in a number of different ways, such as gay marriage or civil unions, second parent adoptions, and a few other alternatives.

Civil Unions

Civil unions or gay marriage are the best way to attain equal rights for both parents. When a gay or lesbian couple marries or enters into a civil union, both are automatically awarded the legal rights and responsibilities of parenthood. Unfortunately, this option is not available in all areas – Massachusetts is currently the only state to allow gay marriage, and civil unions are only available in Vermont and Connecticut.

Second Parent Adoptions

If equal parenthood rights cannot be attained through a legal relationship status, there is an alternative: second parent adoption. This form of adoption allows a second parent to assume equal rights and responsibilities as the first. Second parent adoption is different because it does not require the first parent to relinquish his or her rights as a parent, while a normal adoption procedure can only be completed once the former parents’ rights have been given up or removed. However, second parent adoption can only be performed when there is only one existing parent; in other words, there is no such thing (yet) as a third parent adoption.

Second parent adoption grants the second parent the same exact set of rights as is enjoyed by the first parent. Both parents will have equal rights to make medical and educational decisions in the care of the child, and both parents will have the same rights to a continued relationship with the child in case of a breakup. Even more importantly, if one parent should become incapacitated or die, the care of the child will fall to the surviving parent, rather than a more distant relative.

Second parent adoption is not available in all states, but its approval is spreading. Currently, second parent adoption is available statewide in California, Connecticut, the District of Columbia, Illinois, Indiana, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont. Additionally, there are 18 other states that allow second parent adoptions within certain counties. Only Colorado, Nebraska, Ohio, and Wisconsin have passed rulings or legislation banning second parent adoption.

Alternatives to Second Parent Adoption

Although second parent adoption is being granted in more and more courthouses all the time, it may not be an option for you, particularly if you live in an area that will not grant one. However, there are alternatives that can attempt to take the place of the legal protection offered by a second parent adoption. Although these alternatives do not carry the same legal weight as a second parent adoption would, they can help hold a family together in an area that offers no other options for gay and lesbian parents.

Co-Parenting Agreements

A co-parenting agreement provides written documentation of a parenting plan that is agreed upon and signed by both parents. The document typically spells out each parent’s rights and responsibilities, as well as making provisions for the future in case of a breakup or the death of one parent. The co-parenting agreement can also grant the non-legal parent permission to make medical decisions. To see a sample co-parenting agreement, visit the Human Rights Campaign Website.

Custody Agreements

A custody agreement is similar to a prenuptial agreement, in that both partners agree to and sign a detailed custody arrangement in case of a breakup. The custody agreement outlines everything from living arrangements and visitation, to decision-making responsibilities regarding issues such as medical care and education. This is also the place to specify the consequences if one of the partners breaks the agreement. Although such an agreement can be created after the breakup, not all breakups are amiable; to protect your child and preserve his or her relationships with both parents, this agreement is best made early on.

Wills

As distasteful as it is to think of any scenario where you might need to have a will, as a parent you have certain responsibilities – and one of those is making sure your children will be provided for in case you are no longer around to do so yourself. Both partners should have a will that explicitly names the other parents as the child’s guardian, in order to ensure that the rest of the family will be able to stay together if one parent passes on.

Proving You Are a Family

Whether or not you take the above precautions, you may be faced with the burden of proving that you are a family, regardless of legal or non-legal parenting status. Some courts recognize what is known as “psychological parenthood,” and will rule more favorably if you can show that the non-legal partner acted as a parent to the child.

In order to prove your status as a parent, you will need to be able to provide proof that your relationship with your child is one of a parent. Keep any paperwork that will support your status as a parent, from legal paperwork, such as the documents described above, to family planning records and records of family expenses. And don’t forget the power of family mementos – even family photos and written correspondence with the child’s caregivers can demonstrate your status as a parent.

Protect Your Family

When you and your partner decide that it’s time to start a family, it is important to take every possible precaution to protect that family. This means planning ahead: pursuing every avenue possible to give both partners equal status as parents, starting with those that will offer the most protection. This also means seeking out legal counsel, to ensure that all of your efforts are done right, and that no one will be able to deny your child his or her family.

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