Second Parent Adoption: An Overview

Since New York became the sixth state to legalize same-sex marriage, adoption attorneys have been flooded with inquiries about the continued need for second-parent adoptions, which allow a same-sex parent to adopt their partner’s child (biological or adoptive) without terminating the first parent’s legal rights. If a same-sex couple moves—or even travels—to one of the many states and countries that do not allow or acknowledge same-sex marriage, the second-parent loses all recognized rights and responsibilities to the child. The only way to guarantee that the relationship is enforced is via a second-parent adoption, and both same-sex and adoption advocates strongly suggest same-sex couples pursue this option.

Adoption law, along with all family law, is based on the best interests of the child—what serves the child’s well-being and ensures the child’s safety. If there is an emergency medical decision needed for a child and the second-parent is the only person available to make that decision, the second-parent adoption can be literally life-saving. Additionally, adopting as a second parent gives the child certain rights, such as child support, social security and health insurance benefits, and inheritance from you. The adoptive parent will also have the right to custody and visitation regardless of the status of the partnership or marriage. And if a parent passes away or becomes incapacitated, the second-parent’s rights and responsibilities, which are not guaranteed in a state or country that does not recognize same-sex marriage, will be protected.

Steps to a Second-Parent Adoption in New York

In New York, Family Court and Surrogate’s Court have jurisdiction over adoptions. Although the processes in Family Court and Surrogate’s Court are very similar, each court, especially based on which county the case is in, runs differently. There is no steadfast rule about which court is most expedient or which judge is least flexible, but an experienced adoption attorney understands the nuances of the individual court’s requirements and how to interpret a court calendar and judge/surrogate rotation to the client’s benefit.

Along with initial legal paperwork, a home visit (study) by a social worker is conducted. A parent can obtain a free home study from the Probation Department but unfortunately there is a tremendously long wait time. Or, you can choose a court-approved and licensed social worker based on the suggestion of your adoption attorney. In addition to being LGBT-friendly, a parent should inquire about the social worker’s employment history, the cost of the homestudy (anywhere from $500 to $1000) and the amount of time for the homestudy to be completed (usually 30-60 days for the report to be written).

What to Expect from the Home Study

Your social worker will likely call you prior to the date of the home study to allow you to ask questions about the process. During an approximately three-hour visit, the family and the home will be evaluated to make sure the environment is suitable and safe (i.e. safety measures, window guards, outlet covers, a fire safety plan) for a child. Various factors will be reviewed, such as your social, economic, medical, and criminal (by taking fingerprints to check for criminal records and reports of child abuse) background. It is your social worker’s job to tell your story accurately and without judgment, and to engage your family in a discussion about aspects of adoption that you may not have considered. “I am not coming to investigate a family but rather to interview them so that I can tell their unique story in a way that is reflective of their history, morals, values, and beliefs about family and adoption,” says Shanequa Anderson, an LGBT-friendly social worker in New York City, who gives clients a questionnaire prior to her visit in order to prepare. Here’s what you can expect to prepare for the social worker:

  • Dates and locations of significant life events (marriages, births, etc.)
  • Financial information (savings and investment accounts, as well as monthly budgets)
  • Medical information (primary care physician’s contact information and prescription medications)
  • Family information (ages and names of extended family members)

Before, during, or after the home study is completed, an adoption attorney will provide parents with the remaining legal paperwork, including a Child’s Medical History Form, an Agreement of Adoption, an Affidavit of Financial Disclosure, and the Order of Adoption. Additional forms may be necessary, depending on the court, county, and case facts. The paperwork is detailed and can be daunting, but a court requires thorough information to protect the child’s best interests. Your adoption attorney will lead you through the process, explain each form, and answer any questions or concerns you might have. If the court has questions or requests further documents, your adoption attorney will notify you and help you fulfill the court’s conditions.

Second Parent Adoption Timelines and Wait Times

Within approximately eight months, depending on the specifics of your individual case, your adoption attorney will submit the complete package (including legal forms and homestudy report) to the court. Once submitted, the adoption clerk will review your file within approximately two to three weeks. If there are any requested additional forms or preliminary questions, these are handled at that time. After the clerk feels the packet is complete, it is passed to the judge for review. By law, all courts have 60 days to review the packet and 30 days to schedule the adoption after the review. While some parents might be concerned that they will encounter discrimination, the New York City court system welcomes adoptions within all families. Judges enjoy finalizing adoptions of all types—straight, same-sex, domestic, international—and try to make the event a memorable occasion for you, your partner, and your child, who must be present.

The court will advise you and your attorney of a picture-taking policy, and whether other guests may be in the courtroom for your family’s celebration. The special day requires no preparation and should not cause any concern. Like the birthdays and graduations you will someday share together, the adoption finalization “ceremony” (usually only 5 or 10 minutes) is a cherished moment for your family to enjoy and remember fondly.

For answers to your adoption questions or to set up a free consultation, please visit www.greenbergadoption.com.
Evita Nancy Torre is an adoption attorney with Greenberg Adoption: The Law Offices of Clifford L. Greenberg in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Lesbian, Gay, Bisexual & Transgender Community Center, and published a children’s book (illustrated by his young daughter) about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Greenberg Adoption hosts The Center’s monthly Family Law Clinic, and exclusively practices adoption law.

Please Note: This article, or its content, does not create an attorney-client relationship. The information provided is about legal issues but it is not intended as legal advice.

18 Comments

  1. Mignon says:

    Thanks for this information. How does this process work in California? A friend told me it is possible to do second-partner adoption before the baby is born so the co-parent’s name can go right on the birth certificate immediately following the birth. Any info you can provide about this possibility would be appreciated.

    Reply
    • Thanks for your question. Since I do not practice law in California, I am unable to share specific information about your individual state’s process because every state has different laws on adoption. In New York, an adoption (including second-parent) can not be completed until after the baby is born. However, before the baby is born, parents can begin the legal process with their adoption attorney (who should be located in your state of residence) and get preliminary paperwork handled. I hope that helps and all the best to you and your family.

      Reply
      • Jane says:

        I thought that in NY if the new moms are married, both names can go on the birth certificate now. Is that not the case? Doesn’t eliminate the need for a second-parent adoption?

        Reply
        • Yes, in New York, if a same-sex couple is married both parents will appear on the birth certificate. However, as mentioned in the article, if a same-sex couple moves—or even travels—to one of the many states and countries that do not allow or acknowledge same-sex marriage, the second-parent loses all recognized rights and responsibilities to the child.

          Reply
  2. Shannon Bennett says:

    Do you know if this second parent adoption is possible if the family is residing out of Virginia, but the non-biological parent is active duty military, and NY is her state of residence?

    Reply
  3. Marianne says:

    Can you give me an idea about the legal expenses? My partner and I are expecting twins. I am an attorney as well and am wondering if I should attempt the paperwork myself.

    Thank you for any info

    Reply
    • Hi Marianne,

      My firm charges a flat rate for a second-parent adoption, when no termination of parental rights is required. I’m happy to discuss the fees in more detail with you offline.

      Regarding attempting to do the paperwork yourself, we have clients who are attorneys and they have commented that after reviewing the nuances of the legal forms, they have found it was most economical and time-efficient to have attorneys who focus on adoption in New York handle the process.

      Reply
  4. Femme Mama says:

    Hi Evita,

    Thanks for this info. My partner is a trans man (with legal docs affirming his gender reassignment as male), and I am a cisgender woman who will be giving birth to our first child. We are legally married in New York as a straight couple. Do you think it’s necessary for us to go through a second-parent adoption process since my partner will not be biologically related to our child?

    Thanks,
    Femme Mama

    Reply
  5. friend says:

    I live in Fl and we are 2 female having a baby, me and my partener want to know how to go about me adopting our child

    Reply
  6. SLewis says:

    What a great article! Thank you to everyone that asked questions because I had similar ones and now I have a better understanding of how second-parent adoption works and why is it so important. Many, many thanks!

    Reply
  7. Michelle says:

    I am currently expecting and my wife and I are legally married. We used an anonymous donor and are looking for more information on the second parent adoption process. This article has been helpful but after meeting with an adoption lawyer I am confused as to why I have to have a background check and fill out paperwork as well since I am not adopting the baby? Also will there be any changes if DOMA is repealed? Thank you!!!!!

    Reply
  8. Nicole says:

    Good morning, as a NYS resident, we are a same sex couple who are not married but both names appear on the birth certificate. Will NYS recognize the non biological parent based on the birth certificate alone, or is there a need for addition legal documents such as adoption?

    Reply
  9. chanelle hawkins says:

    hi me and my partner are a lesbian couple and we are 1 month pregnant and wanted to know if we are not in NYC how would be go about my girlfriend becoming a second parent we where thinking about getting married at city hall before the baby comes so that way she can be able to sign the birth certificate I have a lot of questions can you please email me

    Reply
  10. Wanda says:

    Can you please email your information because my wife and I are do in April and would like to file for a second parent adoption.

    Reply
  11. Jennifer Blouin-Andrus says:

    If my wife is on my children s’ birth certificates (NH and VT) what are her rights to the children? We are going through a divorce in NH but I need to relocate to MA with the children due to the fact that she is no longer financially supporting us and my family is there willing to help me. I currently have a restraining order on her for being abusive to me especially in front of the children. Despite my efforts to stop visitations the courts granted her them 2x week and rotating weekends. I want to leave the state and have sole custody in decision making and residential? Is this possible if she never adopted them? I feel like I have no say in protecting my children.

    Thanks

    Jen

    Reply
  12. Sarah says:

    My ex and I who who were not legally married shared a family and a daughter together until she was 3. She was conceived via sperm donor. I have been in her life since birth. We separated in 2009 and after that shared everything 50/50. She refused to allow me adopt her. 2012 she took her away from me but I fought and got a lawyer and now have a visitation order. I’m an awesome mom and very involved. I still want to adopt her so my question is can I still proceed for adoption even tho birth mom refuses it??

    Reply
  13. Linda says:

    I have a question.. me and my wife decided to have a baby, we conceived through insemination.. what do we have to do when I give birth in the hospital for her to be put as the parent also. I don’t know how it works since we’re married, would it be her baby too or do we have to do paperwork?

    Reply

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