How and Why to Complete a Same-Sex Adoption in NY or NJ
Same-sex adoption laws in New York and New Jersey provide same-sex couples with the same opportunity to create a family through adoption as single people and heterosexual couples. Gay couples or singles hoping to adopt have many options. Whether you want to conceive a child through assisted reproduction with your partner, adopt a child through a domestic or international adoption, or adopt your spouse or partner’s child, Rumbold & Seidelman can help.
We have a long history representing members of the LGBT community and have expertise in addressing the challenges confronted by same-sex parents in obtaining legal recognition of their parental relationships with their children. We’re here to help you build your family and ensure that your family is secure. For more information about how we can help you to complete your family and legally protect your parental rights, give us a call today at 888-962-3001. We can walk you through your individual circumstances and discuss the options available to you.
Securing legally recognized rights for both parents in a same-sex relationship requires the assistance of a lawyer because there are many legal complexities to the process. We will ensure that you complete required background screenings, file all the required documents with the court, obtain birth parent consents, terminate the parental rights of others as needed and obtain a court order protect your legal relationship to your child.
To help you learn more about the different same-sex adoption options in New York and New Jersey, we’ve discussed each of those options below.
Adoption after Assisted Reproduction
Same-sex couples often rely on some form of collaborative reproduction to conceive a child (typically) biologically related to one of them. With modern technology, it’s become commonplace for a couple or single person to conceive using donated gametes. Male couples need to obtain eggs from an egg donor, and they will also need the assistance of a gestational carrier to gestate the child. Lesbian couples need donor sperm to conceive a child. Each of these avenues for conceiving a child come with legal complexities and it’s critical to ensure that — at the end of the day — the parental rights of any gamete donors are legally terminated and the intended parents are securely recognized as the child’s legal parents. Families conceiving through third-party reproduction are well advised to consult with an attorney to determine whether they need to undergo a second or step-parent adoption in order for their parental relationship to be legally secure and beyond challenge by the gamete donor(s) or surrogate.
Even if you are named as a parent on your child’s birth certificate, your parental status may not be secure. Birth certificates are not proof of parentage. The fact that you were married when your child was born to your spouse also does not ensure that your parental rights will be recognized. Especially in a changing political climate, you should obtain a court order — which must be given “Full Faith and Credit”in every state — to guarantee that you will be recognized as your child’s legal parent no matter where you are. A same-sex adoption in New York or New Jersey will result in a court order declaring that both you and your spouse are the legal parents of your child. The U.S. Supreme Court decision on marriage equality (Obergefell v Hodges) does not necessarily secure a parental relationship between you and a child born to your spouse during your marriage. Any non-biological parent should seek legal advice to understand whether they should take legal action to protect their parental relationship with their marital child.
In short, there may be circumstances where the parental rights of the non-biologically related parent could be challenged either by the biological parent or by the provider of the gametes used to conceive the child. Given the legal complexities and the potential for your parental relationship to be challenged, we encourage you to explore the option of obtaining a court order through a same-sex couple adoption or other court process to protect your parental relationship to your child — even if your name is already on your child’s birth certificate.
In 2016 the New York Court of Appeals issued a very important ruling addressing the parental rights of the non-biologically related parent of a child conceived through donor insemination. In Matter of Brooke S.B. v Elizabeth A.C.C. the court ruled that where the biological parent and her partner jointly planned the conception of a child with the intent that they would both be parents, the non-biological parent has standing to request custody and visitation with the child even after the relationship between the parents dissolves. The decision reversed decades of prior New York case law, and Rumbold & Seidelman was pleased to have participated in drafting one of the briefs submitted to the court. At Rumbold & Seidelman, we believe that this important decision will allow non-biological parents in New York to obtain an Order of Parentage — a court order declaring that both parents are the legal parents of the child — whether or not the parents were married to each other and without the need for an adoption.
Rumbold & Seidelman is also proud to have been counsel in a landmark case where a New York appellate court declared, for the first time, that the marital presumption (which presumes both spouses are the parents of a child born in wedlock) applies to a same-sex marriage even in the face of a challenge (Matter of Maria-Irene D. 2017 NY Slip Op 06716). But even this victory in New York will not compel other states to recognize the presumption of legitimacy in the absence of an adoption or order of parentage.
Since the non-genetically related/non-gestating intimate partner or spouse can only reliably secure his or her legal relationship to their child through an Order of Adoption or Order of Parentage, we encourage you to call us to determine the path that is best suited to your needs:
- Stepparent adoption: An adoption by the spouse of the child’s legal parent.
- Second parent adoption: An adoption by the intimate partner of the child’s legal parent. Second parent adoptions are available for couples who are not married, whether gay or straight.
- Order of Parentage: Possible under New York Law where a biological parent and his or her partner have jointly planned the conception of a child with the intent that they would both be parents, regardless of marriage or gender.
Obtaining a court order will securely protect your right to your child if your spouse dies or if your relationship with your partner or spouse disrupts. A court order declaring parentage will also protect your child’s right to receive inheritance, insurance and social security benefits from both parents.
Adopting a Spouse’s Child or Adopting a Child Together
If your spouse had a biological child or adopted a child before you were married, whether you were in a relationship at the time or not, you can still protect your parental rights to that child through a step-parent adoption (if you’re married) or a second parent adoption (if you’re unmarried). Since there are legal requirements to fulfill, including obtaining the consent of the other legal parent (if applicable) and requirements regarding the length of time you have been married and/or living with the child, you’ll need to work with a lawyer to make sure you complete all the necessary legal requirements.
If your spouse had a biological child, the question that will arise is whether the other biological parent of the child must consent to your adoption. Usually, if the child was conceived via a sperm or egg donation, this can be a simple process and may have already been taken care of. If the child was conceived naturally, a determination must be made as to whether the other biological parent must receive notice of the adoption or consent to the adoption. This is a legal determination that will require an attorney’s analysis of the law and the facts presented by your particular situation.
Another way for same-sex couples to build their family is to adopt a child together. Here neither parent has a legal or biological connection to the child. In order to adopt, you must follow your state’s requirements to be approved as adoptive parents, including a home study, criminal and child abuse clearances and any other requirements for the kind of adoption you choose. Many prospective birth mothers are not only open to placing their child with a same-sex couple but may even prefer placing with such a couple.
How Rumbold & Seidelman Can Help Complete an LGBT Adoption in New York or New Jersey
When you approach us with a desire to complete an LGBT adoption, whether to add a new child to your family or to legally secure your parental rights to a child you already have, we can provide you experienced legal counsel regarding the laws which affect same-sex couples adopting in New York and New Jersey. As members of the Family Law Institute of the national LGBT Bar Association, we can help by:
- Advising you regarding the best way to secure your parental rights, through a second or step parent adoption or through a declaration of parentage proceeding, based on your situation
- Addressing whether any third party’s potential parental rights should be terminated
- Certifying you as an adoptive parent where necessary
- Preparing and submitting all required documentation and papers in court
- Obtaining a birth certificate identifying the second parent as parent of the child
Because same-sex adoption laws in New York and New Jersey may not completely protect your legal parentage, it’s important for you to take the correct steps to preserve your parental rights for the future. You should also know that not all states will recognize parental rights which are recognized in New York and New Jersey. In addition, changes in your relationship and marital status can result in your parental relationship with a non-genetic child being challenged in court. Experienced legal counsel will make sure that you protect your parental rights to your child, no matter how you became their parents.
Through our client-oriented, personalized process, we can help you determine what those steps should be. If you want to learn more about adopting in New York or New Jersey, please call us at 888-962-3001 or contact us online.