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.