Second-Parent Adoption for LGBT and Heterosexual Couples
Adopting a child means becoming legally recognized as their parent. In the United States, when someone adopts their partner's child, it's called a second-parent adoption or co-parent adoption. As many people already think of themselves as the child's parent by the time they adopt, the term confirmatory adoption is also popular because they're confirming their relationship to the child.
What is a second-parent adoption or co-parent adoption?
You're seeking a second-parent adoption if you're asking to adopt your partner's child.
In most jurisdictions, a child can have no more than two legal parents. If they have two parents and a third adult wishes to adopt them, the court would consider whether one parent's rights could be terminated before the adoption could proceed.
Among the common scenarios for pursuing a second-parent adoption of a partner's child:
- The couple used fertility assistance to conceive, and only one partner is a biological parent of the child.
- The child's other parent (from a previous relationship) is deceased.
- The child's other parent (from a previous relationship) is uninvolved in the child's life. They voluntarily give up their parental rights so the adoption can proceed.
- The child's other parent (from a previous relationship) is found to be unfit, and despite their objections, a court terminates their parental rights. This is rare but can be done to protect the child's safety.
Many couples raising a child together feel that they're already parents, so they may feel insulted that one of them should have to "adopt their own child." The state may have a required questionnaire asking things like whether their home has a bathroom, which can feel unnecessary and intrusive. And it costs money to go through the process.
Despite all this, a second-parent adoption gives legal security to your family, so it's worth considering.
Why 'second-parent adoption' is a useful term
If you research "adoption," you'll find a lot of information about adoption agencies and foster care. That advice is generally intended for couples who wish to adopt a child simultaneously and seek to have a child placed with them. That process is called joint adoption.
Second-parent adoption (aka confirmatory adoption, or stepparent adoption if you're married) applies to a different scenario: one adult is already a parent and the other adult (probably living with them) wants to become the second parent. If that's your situation, you don't need an adoption agency. And while it's possible that your family has been involved with a state child welfare agency, you aren't asking that agency to place a new child with you.
Because joint adoption and second-parent adoption are such different scenarios, it'll be helpful to use the term second-parent adoption when you look up information or first reach out to a lawyer.
Why it's important to be a legal parent
With good fortune, you might continue comfortably for years with your child having one legal parent and another parental figure in the same house.
But it's a good idea to plan for "What if…?" situations — the ones that are hard to imagine or talk about.
If you and your partner split up: If you're both parents, you can go to court to seek an order for custody, parenting time and child support. But if only one of you is a legal parent, the other won't have any responsibilities toward the child nor the right to see them. A custody case likely can't proceed until their parenthood is established. This applies for same-sex divorce, different-sex divorce, and unmarried breakups too.
If you or your partner dies: If you're both parents, the surviving parent automatically has rights and responsibilities to care for your child. But if the survivor was never legally recognized as a parent, they may have to fight in court for access to their own child. Similar considerations apply if one of you becomes profoundly disabled or severely ill.
Furthermore, being parents can protect your child's financial interests into their adulthood. Depending on local laws, a child is likely to inherit their parent's money if there's no will stating otherwise. But if the deceased parent was never legally recognized as a parent, your child may have to fight in court for the inheritance.
A birth certificate is not enough
State agencies issue birth certificates. Having your name on your child's birth certificate can be useful — it's evidence of your relationship to your child — but in itself it doesn't make you a legal parent.
A court decides who is a legal parent. It can do so by accepting the presumption of law (because you gave birth or were married to the mother at the time of the birth), by deciding a paternity case or by approving an adoption.
Guardianship instead of adoption
It's common for parents to write a legal document specifying who should be their child's guardian in the event of their own death, incapacitation or incarceration.
However, guardianship isn't the same as being a parent nor as having custody.
The person you propose as a guardian isn't required to accept the guardianship. Even if they do, their guardianship is a temporary designation. It usually ends when the parent is able to care for their child again.
If you go through a second-parent adoption now, your child will have two parents who are legally considered equally responsible for them, so you won't need to designate one of you as guardian and worry whether those wishes will be carried out.
Second-parent adoption for LGBT couples
Advocacy organizations recommend that same-sex parents use adoption to cement their legal relationship to their child. While all states recognize same-sex marriage and fertility contracts are common, legal experts say there isn't enough court precedent to assure that courts will recognize same-sex parents based on their marriage or fertility contract.
Trans parents sometimes have concerns that their biological relationship to their child may be challenged based on the sex they appear to be or the gender marker on their identity documents. For example, a trans man who gave birth may worry about the day someone asks where the child's mother is.
It's important to hire a family lawyer who understands LGBT issues. Each state has different laws.
For example: In California, some couples (married or unmarried, any gender) qualify for a streamlined process for second-parent adoption. This applies when the birth mother is part of the couple or the couple contracted a gestational surrogate. California residents in other situations (e.g., a father who divorced the birth mother and now has a partner who wants to adopt his child) are also eligible for second-parent adoption but must pay for a home study.
Your situation is unique, so consult with a legal professional about your options.
Second-parent adoption costs
You and your current partner will pay a filing fee to the court together to start your case. It may be a couple hundred dollars.
If your child has another parent who isn't cooperating, you'll have to serve them with papers to bring them into the court case. Service usually costs about $50 if the parent is easy to find, and more if they aren't.
You'll likely also pay for:
- A background check, including fingerprinting
- A home visit by a social worker
- Certified copies of divorce, marriage or birth certificates
- Establishing paternity and terminating parental rights (if relevant to your situation)
- A court hearing
Usually this kind of adoption takes three or four months. Compared to other types of court cases, it's relatively quick and inexpensive.
However, any legal case can be dragged out if people are arguing, unresponsive or missing. Even when everyone's cooperating, some situations are legally complex. If you've hired a lawyer, you'll pay them for their time.
What states allow second-parent adoption
If you married someone who already had a child
Marrying someone who already has a child makes you the child's stepparent. That's not the same as being a parent, nor does it automatically give you custody. Your spouse may have a court-ordered custody arrangement (maybe a custody agreement) with their ex. Though you may be present during your spouse's parenting time, you don't have custody. You have custody only if you have a court order saying so.
Stepparent adoption (for married couples) is a type of second-parent adoption. It's legal and common in all U.S. states, especially when the child's other parent is deceased or absent. Some states require you to have been married for a minimum amount of time, e.g., one year.
If there's another parent in the picture (your spouse's ex), their parental rights need to be terminated before you can adopt. As long as the child has two living parents, neither of whom intends to give up their status as a parent (and there's no reason for a court to take it away), you can't adopt the child.
If you married someone and then you had a child together
Someone whose spouse conceives or gives birth during their marriage is legally assumed to be the parent of their child. In most situations, this is the mother's husband, who is the biological father. If anyone's in doubt about this, a paternity case can be opened.
If you used fertility assistance, your contract should have made clear that both spouses (not the genetic donor or surrogate) are the parents. Some states have laws that recognize the parental rights of spouses who used fertility treatments. Others rely on the wording of the contract that the parents and their doctors draw up.
While the presumption of parenthood may apply to LGBT spouses too, it's hard for anyone to say it's guaranteed. LGBT family law is still evolving. Many advocates recommend a second-parent adoption to clarify a spouse's status as a parent.
If you're not married to the child's parent
If you're partnered with — but not married to — someone who already has a child, you may be able to adopt their child. Since you're not legally a stepparent, this is known simply as second-parent adoption.
Some states explicitly prohibit unmarried partners adopting:
But nearly half of states (plus the District of Columbia) explicitly allow it: California, Colorado, Connecticut, Idaho, Illinois, Indiana, Maine, Massachusetts, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia.
Where there is no statewide law about whether you must be married, your county may have its own rules or precedents. An experienced family lawyer can tell you what to do.