Same-Sex Adoption in NY or NJ
In New York and New Jersey, unmarried same-sex couples have the same legal right and opportunity to form their family through adoption as single persons and different-sex unmarried couples. 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 LGBTQ community and have expertise in addressing the specific legal issues 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 914-779-1050. We can review 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 to 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 stepparent 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 everywhere in the United States. 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 and your child reside. A same-sex adoption in New York or New Jersey will result in a court order declaring that both you and your domestic partner or spouse are the legal parents of your child.
Since there may be circumstances where the parental rights of the non-biologically related parent could be subject to challenge by either the biologically related partner/spouse or by the provider of the gametes used in conception, any non-biologically connected parent should seek legal advice to determine whether it is advisable for them to take steps to protect their parental relationship with their child. Given the complexities involved in that determination, we encourage you to consult with legal counsel to explore the option of obtaining a court order through an 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. This is important because obtaining a court order will protect your legal relationship 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.
SECURING PARENTAGE IN NEW JERSEY AFTER ASSISTED REPRODUCTION
If you conceived your child through assisted reproduction, and you and your partner/spouse are named as parents on your child’s birth certificate, you have the option of obtaining a Judgement of Adoption without the need for a home study or background checks. Since the legal requirements are straightforward and streamlined, Intended Parents are encouraged to take advantage of the opportunity to obtain a Judgement of Adoption which will provide them with important legal protections.
SECURING PARENTAGE IN NEW YORK LAW AFTER ASSISTED REPRODUCTION
The New York Child Parent Security Act (CPSA), which went into effect in February 2021, provides those having children with the assistance or a gestational carrier, or with the use of donor eggs, sperm, or embryos, with clear legal mechanisms to secure their legal relationship to their child. (See the Reproductive Law pages of this website for a more detailed discussion of the CPSA and the opportunities it provides to New York parents conceiving through assisted reproduction.)
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.
Rumbold & Seidelman is also proud to have represented the non-biologically connected spouse 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 by the child’s biological parent. (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 Order of Adoption or Order of Parentage.
Since the non-genetically related/non-gestating intimate partner or spouse can secure his or her legal relationship to their child through an Order of Adoption, Order of Parentage, or Acknowledgment of Parentage, we encourage you to call us to determine the path that is best suited to your needs:
- Stepparent or second parent adoption: An adoption by the spouse or partner of the child’s legal parent. Adoption requirements are the same as any other adoption proceeding and therefore the petitioning adoptive parent will need to submit a home study and criminal and child abuse clearances to the court.
- Order of Parentage: Available where the biological parent and his or her partner jointly planned the conception of a child conceived through assisted reproduction with the intention that both would be parents, regardless of marriage or gender. You are not required to submit a home study and criminal clearances to the court to obtain the court order.
- Acknowledgement of Parentage (AOP): Since the CPSA took effect, the non-genetically connected Intended Parent may sign an Acknowledgment of Parentage (AOP) to secure their legal relationship to their child. This is a simple, no-cost option which will go far to protect the rights of the non-gestating parent. Because there are grounds upon which the Acknowledgment of Parentage can be legally challenged, it’s a good idea to also obtain an Order of Parentage or Order of Adoption, which will only issue after a court determination that there are no other persons with parental rights.
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 through sperm or egg donation, this can be a simple process and may have already been taken care of. If the child was conceived through sexual intercourse, a determination must be made as to whether the other biological parent must receive notice of the adoption or consent to the adoption. This legal determination typically requires 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 are undertaking. Many prospective birth mothers are not only open to placing their child with a same-sex couple but they may have a preference for that family composition.
HOW RUMBOLD & SEIDELMAN CAN HELP COMPLETE AN LGBTQ ADOPTION IN NEW YORK OR NEW JERSEY
When you approach us with a desire to complete an 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 with 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 LGBTQ+ Bar Association, we can help by:
- Advising you regarding the best way to secure your parental rights, through either a second or stepparent adoption, a declaration of parentage proceeding, or by executing an Acknowledgement of Parentage
- Addressing how to terminate the potential parental rights of any genetically connected third party
- 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 the parent of the child
Because same-sex adoption laws in New York and New Jersey may not completely protect you, it’s important for you to take the correct steps to secure your parental relationship to your child, preferably by obtaining a court order of parentage/adoption. You should also know that not all states will recognize parental rights which exist under the specific laws of the states where you resided at the time of the child’s conception or birth. In addition, changes in your relationship and marital status can result in your former spouse or domestic partner challenging your relationship to your child. Experienced legal counsel will make sure that you protect your parental rights to your child, no matter how you became their parent.
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 914-779-1050 or contact us online.