Second-Parent Adoption in New York
General Steps for LGBTQ+ Parents in NYC
If you are a new or expecting LGBTQ+ parent in Brooklyn, NYC or elsewhere in New York, you may have wondered what the process is to ensure that your parental rights are legally recognized.
Many families believe that a second-parent adoption is something that is not needed, and others believe that this is a process that all families “just do.” You may not fully understand the difference between listing both parents on your child’s birth certificate, obtaining a judgment of parentage from the court, or undergoing a complete second-parent adoption. The process may seem unnecessary or intimidating, and it can also feel overly invasive, especially if you have been parenting your child since birth.
Understanding what this process entails, what your options are, and why some families choose this process can help you arrive at a decision that fits your family’s specific needs best.
What a Second-Parent Adoption Accomplishes, in General Terms
A second-parent adoption is just like other adoption processes.
The law in New York is that a parent who is biologically related to the child, typically the gestational parent or the parent who contributed genetic material during the conception of the child, is the child’s “legal” parent, meaning the person who is responsible for making decisions for the child related to education and upbringing, and who must financially contribute to the raising of the child. The non-biologically related intended parent can be recognized as an additional legal parent through second-parent adoption.
Through the adoption, the non-biological and/or non-gestational parent legally “adopts” the child via court process, while preserving the child’s other legal parent’s parental rights. Typically the child’s parents petition the court for an order of adoption, submitting various paperwork and undergoing certain legally required steps to ensure the child’s safety and the parents’ intent. At the end of the process, the court issues an order declaring both parents to be the child’s legal parents, with the same rights and obligations.
Families often choose to undergo a second-parent adoption after conceiving through known or anonymous donors or surrogacy.
The General Steps for Second-Parent Adoption in NYC
Every family’s situation is different, and factors like immigration status or status of the donor or surrogate may carry additional requirements. It is important to speak with an attorney to understand exactly what is needed in your specific situation. However, there are some things that every family can generally expect to go through.
1. The intended parents consult with an attorney and gather documents to prepare for filing the adoption petition, including identification for the parents, the child’s birth certificate, and any relevant documents about the child’s conception (for example, a donor agreement);
2. After gathering necessary paperwork, your attorney files a petition packet with the relevant local court asking for an order granting the adoption;
3. The family undergoes a home study with a qualified social worker, if required – and many families choose to hire a private social worker who is friendly to their situation and can interview and complete the home study visit with minimal invasion;
4. The parents submit background checks, references, or letters of recommendation from trusted sources, and often parents undergo criminal background checks;
5. After review and submission of additional paperwork related to the home visit and background checks, the family attends a court appearance with the attorney, which can be routine or even joyful; and
6. The family receives a final order of adoption from the court.
FAQ
What Are the Fees Associated with Second-Parent Adoption?
There are a number of fees that are important to understand in this process.
The first and predominant fee is the attorney’s fee. At Expand Law, we are pleased to offer a flat rate to avoid unexpected fees for the family, including if the case happens to require a lot of attorney hours. This rate can also be negotiated on an as-needed basis.
It is important to understand that there are often additional costs beyond an attorney’s fee, including fees related to filing the petition, fees for hiring a private social worker who creates a home study report, and incidental fees such as court travel and parking, notarization, or the printing of various documents.
How Long Does the Second-Parent Adoption Process Take in NYC?
The timeline for the finalization of the process can vary by court and by county, as well as by each family’s individual needs.
However, many families find that the entire process is often complete within 4-12 months.
It is wise to start the process early as opposed to waiting until a need arises.
What Is the Difference Between Second-Parent Adoption and Judgment of Parentage?
In New York, families may either obtain a judgment of parentage or undergo the second-parent adoption process. It is unclear whether obtaining a judgment of parentage prevents a family from later undergoing an adoption, so it is best to choose the path that works for your family without assuming you can change it later.
A second-parent adoption accomplishes a full adoption after undergoing extensive court review.
By contrast, a judgment of parentage is also a court order, but it often takes less time, money, and resources than a second-parent adoption. In New York, the two orders extend virtually the same rights, as a result of tireless legislative advocacy on behalf of LGBTQ+ families.
However, the difference comes into play in considering whether your family may relocate to a different state.
In the United States, all states are required to abide by the outcome of a judicial process carried out in any other state, providing the original state had jurisdiction to enter the order. This is what is known as “Full Faith and Credit.”
In 2016, after the outcome of Obergefell v Hodges (2015), which legalized same-sex marriage throughout the United States, some states attempted to discredit the parental rights of same-sex parents. Specifically, authorities in Alabama attempted to refuse to recognize a second-parent adoption order in favor of a same-sex couple who had obtained the order in Georgia and then moved to Alabama.
In the 2016 case, V.L. v E.L., the Supreme Court ruled that Alabama had to recognize the Georgia order because Georgia courts had jurisdiction to enter it. The result was that every same-sex couple who legally adopts a child in one state must have their parental rights acknowledged in every other state.
However, there has not been a Supreme Court decision explicitly stating that judgments of parentage are required to receive Full Faith and Credit.
Experts generally recommend that families who think they might relocate to any other state or even travel to another state frequently undergo a second-parent adoption, as this is the most careful measure a family can take to ensure that both parents’ rights are recognized in case of an emergency, such as an urgently needed medical decision, school enrollment, international travel, or claiming inheritance rights.
How to Decide Which Process Is Right for Your Family
Depending on how your child was conceived and your family’s habits, you may choose to undergo a process for judgment of parentage or second-parent adoption. Which path is best depends on your specific circumstances, including where you live, where you may live in the future or where you may frequently travel, and how much certainty you need across state lines.
A few questions you may ask yourself are:
How often have we traveled across the US, and is there a reason that pattern might change (such as an aging parent or a job opportunity in another state)?
Are both of us currently recognized as legal parents in every state we might relocate to or visit?
Does our donor agreement reflect our child’s intended parents?
Are there additional things to consider, such as additional educational or medical needs of our child, that might require us to demonstrate our parentage at any time?
Expand Law works with Brooklyn and NYC families at every stage of family-building, including second-parent adoption and other options for establishing parentage. Once your parentage is secure, you may also want to create or update your estate planning documents to reflect your family as it is today. Lindsey Rubinstein can help guide you through that process.
Expand Law maintains an active blog which provides general legal information. Under no circumstances shall reviewing this blog constitute legal advice. If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.
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