One of the most common questions I see from LGBTQ parents is whether and how nonbiological/nongestational parents should do a co-parent (second-parent) adoption, especially if they’re married and on their children’s birth certificates. Here are some things to know and resources to get you started, for both married and unmarried couples.
First, it’s important to understand that simply being on a child’s birth certificate is not enough to guarantee parental rights, since a birth certificate is not a court document. When a married, nonbiological/nongestational parent is placed on a birth certificate without an adoption, court order of parentage, or equivalent, it is because the state recognizes the marriage and presumes any children of that marriage to be children of both spouses. The danger is if the nonbiological parent travels to a jurisdiction that doesn’t recognize the marital presumption for someone who’s not biologically related to that child, as GLAD Senior Staff Attorney Patience Crozier explained in an interview with me in August. And for nonbiological parents in unmarried couples, the path to legal recognition is even more precarious.
Only an adoption, other court order of parentage, or equivalent is guaranteed “full faith and credit” by other states. “What you want to do,” Crozier explained, “is make sure your child has some decree of parentage that clearly is not based on marital status but really secures your parent-child relationship.”
This means getting a confirmatory adoption, a co-parent/second-parent adoption (which only some states offer, but can be obtained regardless of marital status), or stepparent adoption (which all states offer to married people), or by getting a court order/decree of parentage. All of these establish the nonbiological/nongestational parent’s rights without terminating the rights of the biological or sole adoptive parent. Adoptions can only be done after the child is born; court orders may be filed before the birth, protecting the child from the moment of its entry into the world.
Co-parent adoptions usually cost several thousand dollars in attorney’s fees and require an intrusive home study, background check, and court appearance, among other requirements. Step-parent adoptions may waive some of these steps. A few states, however, have a streamlined confirmatory adoption process so that no home studies, background checks, or court appearances (and thus no expensive lawyers) are necessary; several other states and jurisdictions allow courts to waive home studies on a case-by-case basis, as I explained in August. Court orders of parentage do not require home studies, but may still involve paying an attorney.
Additionally, a handful of states are allowing nonbiological parents of any gender to establish legal parentage via a simple Voluntary Acknowledgment of Parentage (VAP) form that may be filed at the hospital right after the birth. These should be equivalent to an order of parentage though for same-sex parents, they have not yet been tested in a court—again, see my August piece for details. While these options are very exciting, they still don’t exist in most states, which means most LGBTQ couples (unless they’ve adopted their children jointly from the start) must still consider confirmatory adoptions or court orders of parentage to secure both parents’ legal ties.
Family law and the options available can vary widely from state to state, so it’s important to know what your specific state offers and requires.
Learn More
- [Updated June 2023] “LGBTQ Paths to Parentage Security,” from GLAD and myself, goes into further detail about the options available.
- The Movement Advancement Project has a map showing which states offer second-parent adoptions.
- GLAD offers details on VAPs as well as on confirmatory adoptions and other parentage laws for each of the six New England states.
- Family Equality offers an overview of what to expect in a standard (not streamlined) confirmatory adoption process.
Find a Lawyer
I’m not a lawyer and have never even played one on TV. The LGBT Bar Association, however, maintains a Family Law Attorney Directory that’s a good place to start if you need one.
Ask Questions
Got questions? The three major LGBTQ legal organizations have answers. They each offer helplines that can address questions, provide referrals, and direct you further.
