Why Second Parent Adoption Is Important for LGBTQ+ Families
Meg York, director of LGBTQ+ family law and policy and senior policy counsel at Family Equality, is intimately acquainted with the process of second parent adoption, in which the non-biological parent adopts the child of the biological parent. “My wife and I had planned for Ida, we worked together to choose a donor, to have all paperwork reviewed by an attorney, to engage in assisted reproduction, to carry a fetus for nine-plus months and to birth this tiny miracle,” she shared with The Advocate last year. “Ida was born into my arms. I have her face memorized. Her smile brightens my day. She is my everything. And yet, there I was—pleading with a judge to legitimize my role as her mother.”
As an attorney, York knew that having her name on Ida’s birth certificate and being married to her birth mother wasn’t enough to protect her family’s legal rights. “I was familiar with horror stories of families ripped apart and the less traumatic, but no less frustrating denial of dependent health insurance coverage,” she continued. “As a mother, I was frustrated that we had to jump through these hoops that different-sex couples did not.”
Second parent adoption eliminates any confusion under the law about whether you’re your child’s legal parent. If you and your family are considering this process, we’ve put together a guide—including information on where it’s available, how to start a second parent adoption and more.
A second parent adoption is when the non-biological parent of a child adopts the child of the biological parent, explains Ashley M. Silberfeld, Esq., a partner in the matrimonial and family law practice at Blank Rome LLP. This type of adoption often arises with LGBTQ+ couples in which one partner has a biological relationship to the child and the other doesn’t—for example, a lesbian couple in which one partner’s egg was used to conceive the child and the other partner didn’t contribute any genetic material.
“Second parent adoptions are incredibly important to LGBTQ+ families because they give equal parental rights to a non-biological party of an LGBTQ+ couple,” says Silberfeld.
Depending on family circumstances, a state’s law may not recognize an LGBTQ+ parent as their child’s legal parent due to the patchwork of parentage laws around the country, says York. Second parent adoptions help families protect themselves, especially since marriage equality is vulnerable. “Obtaining a second parent adoption order secures parentage, which is a legal parent-child relationship,” says York.
In practice, this means parents are entitled to make medical and other important decisions for their child and ensure their child will have the right to inherit and access certain benefits, York explains. In the event of divorce, decisions about custody and visitation will be based on the child’s best interests instead of who the biological parent is. Adoptions are final and cannot be undone. “In fact, the US Constitution requires that all US states and jurisdictions recognize all validly issued court judgments, including second parent adoptions,” she says.
There are several alternatives to second parent adoption, including stepparent adoption, confirmatory adoption, parentage judgments and voluntary acknowledgments of parentage, adds York. Once you consult with a legal expert, be sure to ask whether one of these options might be right for you.
The cost of a second parent adoption varies by state and also depends on whether a couple chooses to hire an attorney to help them through the process, says York. “When self-represented couples seek a second parent adoption, they may only need to pay a filing fee ranging from $20 to a few hundred dollars,” she says. “Hiring an attorney to help navigate the process and to provide legal advice will cost more.” She adds that it’s always best to reach out to an experienced lawyer to understand your state’s laws and help make the best decision for your family.
Second parent adoption is available in California, Colorado, Connecticut, Idaho, Illinois, Indiana, Maine, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington DC, says York.
She adds that thanks to marriage equality, all 50 states allow stepparent adoption for married couples. (Sometimes this process is called second parent adoption as well.)
The first step in a second parent adoption is to make sure it’s available in your state, says York. Next, you can either book a consultation with an attorney, or, if you choose to represent yourselves, obtain the necessary forms and paperwork from your local probate or family court clerk’s office. Many of these forms will need notarization. The LGBTQ+ Bar Association, in collaboration with the National Center for Lesbian Rights (NCLR), maintains a Family Law Attorney Directory to help LGBTQ+ parents and parents-to-be find experienced attorneys.
“In most states, an adoption process usually entails submitting a petition for adoption that includes background checks, supporting documentation such as the child’s birth certificate, completion of a home study, providing a filing fee and attending a court hearing,” York says, adding that the process varies by state and circumstance. “A few states offer a streamlined process called confirmatory adoption for certain couples who are already legal parents under state law or doctrine.”
Diane S., who did the second parent adoption process in Maine when her now 11-year-old daughter was a toddler, says it comes down to having extra protection under the law in a country where LGBTQ+ rights are far from guaranteed and often under attack.
While she and her partner were married and Diane was on their daughter’s birth certificate, “I didn’t have confidence in any of that because so many people had gotten into situations where their relationships weren’t honored and they lost their kids—and I wasn’t going to let that happen,” she says.
“I grew up in a time when things were quite different than they are now,” Diane adds. “I wanted to make sure that the world knew I was her parent. … I look forward to living in a world where we don’t have to think about these things—where our relationships are on the same level as everybody else’s.”
Please note: The Bump and the materials and information it contains are not intended to, and do not constitute, legal advice and should not be used as such. You should always consult with your legal advisors about your specific circumstances. This information contained herein is not necessarily exhaustive, complete, accurate or up to date and we undertake no responsibility to update. In addition, we do not take responsibility for information contained in any external links, over which we have no control.
Plus, more from The Bump:
Ashley M. Silberfeld, Esq., is a partner in the matrimonial and family law practice at Blank Rome LLP. She has spent most of her 20-plus-year career as an attorney handling and resolving all aspects of family law matters, including litigating high-conflict custody, complicated property and support issues, as well as resolving cases through mediation and alternative dispute resolution. Silberfeld is particularly well-versed in the women’s health and reproductive rights space and advises clients on legal issues around same-sex marriage and surrogacy, among other topics. She lives in Los Angeles with her children.
Meg York is the director of LGBTQ+ family law and policy and senior policy counsel at Family Equality, an organization that works to advance equality for LGBTQ+ families. In her policy work, she focuses on the areas of family formation and expansion. Throughout her legal career, her primary focus has been to support the LGBTQ+ community.
The Advocate, Forever Mine: Why LGBTQ+ Parents Should Consider Adopting Their Own Children, November 2023
Movement Advancement Project, Relationships at Risk: Why We Need to Update State Parentage Laws to Protect Children and Families, June 2023
Family Equality, The Dobbs Decision: Protecting LGBTQ+ Families
Family Equality, Securing LGBTQ+ Parentage by State: Stepparent, Second Parent, and Confirmatory Adoption, October 2023
The LGBTQ+ Bar, Family Law Attorney Directory
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