New Jersey Simplifies Legal Parentage Process for Nonbiological Parents

New Jersey has just enacted a law allowing married/civil unioned LGBTQ couples using assisted reproduction to avoid the intrusive, expensive, second-parent adoption process and simply file a few documents in order to get a court judgment confirming the nonbiological parent’s legal parentage.

As I hope readers already know, simply having both parents on a child’s birth certificate, even if you are married, is not enough to ensure a nonbiological parent’s legal parentage. As the text of the New Jersey law itself says, “Birth certificates are administrative records and do not confer parentage rights.” They may not be recognized by other jurisdictions when traveling. Yet second-parent adoptions, which do confirm such rights, require an intrusive home study, background checks, and appearance in court for a hearing, plus attorney fees.

The push for a change began when spouses Danni Newbury and Christy Wilson did a second-parent adoption after their child was born, “yet felt that something should be done so that equally situated couples could obtain similar protection without all of the legal hurdles,” explain LGBTQ legal experts Bill Singer and Deb Guston, in Garden State Equality’s overview of the new law. Newbury approached Singer, who drafted the legislation in partnership with Guston, then Newbury got Senator Nicholas Scutari (D) to be the main sponsor of the legislation.

The new law, signed by Governor Phil Murphy (D) today, states that married or civil unioned couples seeking legal rights for a nonbiological parent may do so without a home study, background checks, or court hearing (except in the presumably rare instances where the court determines that another person also has a claim to parentage). There is still a court filing fee, but no need to pay an attorney. Instead, couples may simply file documentation with the New Jersey Superior Court, including:

1. Proof of marriage or civil union, issued before the child’s birth;
2. An original birth certificate with both parents’ names on it; and
3. A written declaration “that describes in sufficient detail how the child was conceived” so the court can make sure no other people have parental rights to the child.

The court will then issue a signed judgment naming both people the legal parents. This judgment “is entitled to full faith and credit in other jurisdictions because the order will be a final judgment issued by a court with subject matter jurisdiction.” In other words, it’s as strong as a second-parent adoption or any other court order of parentage.

Singer and Guston note, however, that the law is not designed for couples who have used known sperm donors and not properly terminated the donor’s rights in the state of conception.

The law also doesn’t seem to apply to unmarried/uncivil unioned (uncivilly unioned?) couples (though Singer and Guston note that “proof of comparable marital-type relationship from another jurisdiction”—presumably domestic partnerships—would be accepted). (In contrast, similar bills in New York and Rhode Island would not, as I read them, have required proof of legal marriage/union/partnership, merely statements of consent by the nonbiological parent. These bills both failed to pass last year, but will likely be reintroduced.)

Notable, though, in the New Jersey legislation, is the clear recognition of transgender and non-binary parents (something the New York and Rhode Island bills did not have). The text notes:

[Assisted reproduction] procedures have enabled same-sex couples, opposite-sex couples dealing with infertility, and transgender and non-binary individuals, to become parents.

Societal recognition of the rights of lesbian, gay, bisexual, transgender, and non-binary individuals, in combination with advances in assisted reproduction, has outpaced changes in the law concerning processes for establishing legal parentage.

I am personally thrilled about this law because my spouse Helen and I had our own son in New Jersey 16 years ago (though we no longer live there) and Bill Singer was our lawyer. We used reciprocal IVF to start our family, with my egg, my spouse’s womb, and anonymous donor sperm. Under New Jersey law, I would have had to adopt my own biological child in order to be a legal parent. We thought that was ridiculous, and asked Singer to help us avoid that.

We successfully petitioned the court for a parentage order, even before our son was born, so that I would have solid legal rights from the moment of his birth—an important protection for him, should anything happen to Helen. (Second-parent adoptions, by contrast, cannot be issued before the birth of a child and may take several months to finalize.) At first, we thought we were going to be the first same-sex couple in the state to do this; turns out another couple beat us by about a month, but we were the first in our county. We couldn’t have been happier, though, knowing we were part of a trend.

It’s great to see LGBTQ parents continuing to advocate for change in the state—and to see Bill Singer continuing his good work. (Deb Guston, too, who has also long been a positive force for LGBTQ families, though we did not know her.)

If you live in New Jersey and think you’ll be taking advantage of this new law (which goes into effect April 1), make sure to read Singer and Guston’s overview, and give the fine folks at Garden State Equality a call if you have any questions.