Almost all LGBTQ+ parents should go through second-parent adoption, whether you’re planning to have biological children or adopt. This guide discusses what it is and why it should be done as soon as possible if your state allows it.
By Austin Ledzian
Firstly, I want to acknowledge the ridiculousness of the terms “first parent” and “second parent.” Many LGBTQ+ parents resent these labels because they feel they are both equal parents, neither are “first” or “second.” A same-sex partner who plans the birth or adoption of a child with their partner is a parent, and no parent should have to adopt their own child. But the reality is that LGBTQ+ people need to jump through legal hoops in order to gain the same rights as their straight peers, to properly protect their families. A second-parent adoption, also called a co-parent adoption, is the most common means by which LGBT non-biological parents establish a legal relationship with their children. It’s an important tool to establish a partner as a legal parent and gain parental rights.
Why is Second-Parent Adoption so important?
You may be in a situation where many LGBTQ+ people find themselves—they planned their family with their partner, contribute equally to parenting duties, and are in every way a parent to their child. However, if you are not the biological parent or the “first to adopt,” you may not truly have parental rights over your child. Even if both parent’s names are on the birth certificate, this does not guarantee parental rights for the non-biological parent if challenged in court—only second parent adoption or a parentage judgment can ensure that parental rights will be respected.
Even if both parent’s names are on the birth certificate, this does not guarantee parental rights for the non-biological parent if challenged in court.
A number of states require a person to be a legal parent in order to make legal and medical decisions for a child. In the event that you move to another state, go on vacation, or even travel through a state that does not have favorable LGBTQ+ laws on the books, your parental rights may be in question in the event of an emergency. As Cathy Sakimura, deputy director for the National Center for Lesbian Rights (NCLR), told The New York Times, “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another.” Second parent adoption is the way to ensure that both parents are legal parents. Since adoptions are court orders, a final adoption by an LGBTQ+ parent must be recognized in every state, even if that state’s own laws would not have allowed the adoption. You should start the adoption soon after you start your family in order to gain this protection.
Here are some important rights gained with a second parent adoption:
- Consent to medical care on behalf of the child, and the ability to claim your child as a dependent for health insurance.
- Should something happen to the “first” parent, the relationship of the “second” parent to your child is unquestionable (a non-legal parent may have no rights to custody or even visitation with their child).
- Your child’s inheritance rights are also now protected (in the absence of a will stating otherwise, your child generally has no right to inherit from a person who is not a legal parent).
Who is eligible for Second-Parent Adoption?
If you are married, second parent adoption is legal in all states regardless of sexual orientation. And it is legal in some states for partners who are not married. A list of states that allows second-parent adoption for non-married couples is kept up to date here.
Second-parent adoption may be right for you if:
- Both partners are listed on the birth certificate but you would like to take extra legal precautions for the non-biological parent.
- One parent is biologically related to your child and listed on the birth certificate, and the other parent needs to gain parental rights.
- Your state does not allow LGBTQ+ couples to adopt jointly, during the same court procedure.
- One parent legally adopted the child, and the other parent needs to gain parental rights.
- A partner would like to adopt a child from their partner’s previous marriage, and the legal parent agrees to have the new step-parent adopt the child.
You do not need to worry about second-parent adoption if:
- If you are having a child through assisted reproduction, and you live in a state where there are clear laws that recognize the non-biological parent as a legal parent. Some states require LGBTQ+ couples to be married for the non-biological parent to be recognized; some states require the non-biological parent to petition the court for parental rights.
- You and your partner jointly adopted a child (joint adoption by married LGBTQ+ people is legal in all 50 states, but some states allow agencies to discriminate based on religious beliefs).
What is the cost?
On average second-parent adoptions cost between $2,000-$3,000 in legal fees. You may be eligible for a grant from a non-profit to help offset the costs, here is a list to get you started.
What is the process for second-parent adoption?
It’s typical that the second-parent adoption process cannot be started until after the child is born, so it’s important to take precautions, like making sure your “first parent’s” health insurance is best for your child. As soon as possible after your child is born or adopted, you should begin the second-parent adoption process. Mentally prepare to navigate the confusing, arcane, and expensive legal system.
It is possible to go through the second-parent adoption process alone but many find it helpful to contact a lawyer who specializes in LGBTQ+ law. You will also need to schedule an appointment with your doctor and pediatrician for physical exams for both you and your child.
Next, you will need to have a home study in which a social worker will come to your home to determine that the child’s needs are being met. This will include a home visit, an interview with the members of your household, an interview with your partner, and an interview with a family member. The social worker is looking to understand your history, family, financial stability, and your understanding of parenting. The court may select the social worker or allow the family to choose a “disinterested party,” and in some cases you may be able to do the interview at a social worker’s office
You may, like many LGBTQ+ parents, see the home study as an invasion of privacy. Know you are not alone. As Lyndsey D'Arcangelo said in an op ed for NBC:
“Imagine having to prove you're a responsible parent during an awkward home visit by a state official—which you have to pay for—so that you can legally adopt the child you have already raised.”
Next, you or your lawyer will prepare birth certificates of you, your partner, and your child, the adoption homestudy, child abuse and criminal clearances, financial verification, reference letters, physician statements, the original adoption decree (if the child was adopted by the current legal parent), and any other relevant paperwork. These documents will be filed with your local Family or Surrogates Court, the court will review the documents, and a finalization hearing will be scheduled.
Finally you, your partner, your child, and your lawyer will appear in court. The judge will make an adoption determination, and if approved, will issue an adoption order. A new birth certificate will begin to be processed for the child with both parent’s names, which can take a few months.
Congratulations! With this approved “parentage judgement,” and long legal paper trail, you now have full parental rights, and peace of mind.
More about Second-Parent Adoption:
“What’s a Second Parent adoption?” - Family Equality
Your rights as LGBTQ+ Parents:
“Legal Recognition of LGBT Families” - NCLR
“Adoption by LGBT Parents” - NCLR
Cost of second-parent adoption:
“How Much Does Adoption Cost?” - Human Rights Campaign
Your rights by state:
Grants for second-parent adoption:
“Grants for Adoption” - Family Equality
For more information on LGBTQ+ family planning, see our guidebook, Parent Plans: LGBTQ+ Edition.