Immediately following the reversal of Roe v. Wade on June 24 that ended the constitutional right to legal abortion in the United States, a question began popping up in queer parents groups all over social media: can you protect your family with second-parent adoption?
Queer parents, like myself, began to fear that our families could become the conservative justices’ next target. Especially after Supreme Court Justice Clarence Thomas stated in his concurring opinion in Dobbs vs. Jackson Women’s Health Organization, which precipitated the overturning of Roe, that the court “should reconsider” other cases involving the right to privacy, including 2015′s Obergefell v. Hodges decision, which legalised gay marriage.
Before same-sex marriage was even on the horizon, queer families in the 1990s began using second-parent adoption as a way to legally secure their family structures. Second-parent, or co-parent, adoption is the same legal process that step-parents use to adopt their spouse’s child or, in this case, queer parents who seek to adopt their own children. It wasn’t designed with queer families in mind.
But second-parent adoption allows for an expanded definition of parenthood that goes beyond a biological mother and father, which LBGTQ+ parents have used to our benefit.
Shira Gaudet, who is raising a seven-year-old and four-year-old with her spouse in Massachusetts, contacted a lawyer within days of the court’s ruling to begin the uniquely burdensome process of second-parent adoption.
Gaudet’s family doesn’t have much room in their budget for the expensive legal proceeding, which can cost $2,000 or more. “It’s gonna be a struggle, but we’ve put a high priority [on it],” Gaudet tells HuffPost.
“My thoughts are as much for the kids as it is for the parents,” Gaudet says. “This is something necessary to protect my children.”
The basics of second-parent adoptions for queer parents
When my wife and I welcomed our first child back in 2009, the first version of his birth certificate listed only my name because I had given birth. To change it so that my wife’s name was also listed required a tedious process of paperwork. Requirements vary from one jurisdiction to the next, and some have changed over time, but during that time in New York, we were required to submit letters of recommendation, medical forms signed by physicians and a list of every address at which we had ever resided. Additionally, there was a home study that involved a social worker visiting our apartment and asking us invasive, personal questions, such as whether either of us had been abused as children.
In some states, parents aren’t required to complete the home study, and in others there are additional requirements, such as fingerprinting.
There are currently 11 US states in which queer families have the additional option of completing a voluntary order of parentage shortly before or after a child’s birth, according to the National Center for Lesbian Rights (NCLR). It’s a quicker, more streamlined process for parents that carries the same weight as second-parent adoption.
It was a relief when our adoption went through and the birth certificate was corrected to include my wife’s name. But the process was, at best, inconvenient and at worst, humiliating.
“There is no joy in these adoptions,” says Carol Buell, who has dedicated a decades-long legal career to LGBTQ+ family law. Subsequently, she’s processed the adoptions of many children.
Though some straight couples do use sperm or egg donors, it’s unheard of for them to seek second-parent adoption in these cases. “Nobody’s questioning their family,” Buell explains. For these families, a birth certificate is sufficient. But queer families have had different experiences. In the past, some states refused to even acknowledge same-sex couples’ marriage licenses.
The NCLR advises that “securing a court judgement or decree of parentage or adoption is essential in protecting your family. This is true even if you are married and are both listed on a child’s birth certificate.”
The birth certificate alone is not enough to establish legally secure parental rights for same-sex parents.
“While the birth certificate reflects the legal presumption that any child born into the marriage is the child of both parents, it is not a legal judgment establishing parentage and could be vulnerable to a legal challenge down the road if unexpected circumstances arise,” according to NCLR.
While it was unlikely that my wife and I would have to brandish a copy of the certificate of adoption in a New York airport or emergency room, there was the very real possibility that we would need to do so if we ever traveled to a less LGBTQ-friendly state. The adoption gave us an extra layer of protection, should anyone question our parentage based on the fact that we are both women.
The future of queer parenting
Having seen so much shift in a positive way for queer families during her career, Buell remains circumspect given the current makeup of the Supreme Court.
“We cannot predict what will happen next,” she says. “Here we are. If they can overturn a 50-year ruling that impacts more than half of American citizens, what’s next?”
Whether or not couples are married, Buell recommends that parents pursue both second-parent adoptions and what she called the “belts and suspenders”: wills, health care proxies and powers of attorney. In this way, and at a financial cost, queer couples can access à la carte the main legal benefits of marriage regardless of any possible actions against same-sex marriage laws by the government.
How to pursue a second-parent adoption
Because requirements change from one state to the next, it’s important to find an attorney where you live. Several organisations can refer you to an attorney. The Family Law Institute publishes a state-by-state directory of LGBTQ+ family law attorneys. COLAGE, Family Equality, GLAD and the NCLR are other organisations that can provide referrals. These organisations suggest asking potential attorneys whether they have done second-parent adoptions before, what the process entails and how long it may take.
In some places, the process is simple enough that families may file their own paperwork – although this is unusual. You can ask around in local parent groups if this may be true in your area.
Finances frequently prevent families from pursuing second-parent adoptions. Campaigns for second-parent adoptions have proliferated on GoFundMe since the Dobbs ruling was handed down, but there are ways to find low- or no-cost legal assistance. You can ask attorneys directly if they have a sliding fee scale or payment plans available for their services. It’s also likely that your state’s LGBTQ+ bar association does pro bono work, according to Buell. Other resources include legal services in your state, and, for health care proxies, your state’s department of health website.
When traveling between states or between countries with your family, it’s also a good idea to bring certified copies of whichever of the following documents that you have:
Children’s birth certificates
Court judgment or decree of adoption, or voluntary acknowledgment of parentage
Marriage certificate
Adults’ health care proxies
It’s unlikely that you would need to show any of these documents in a hospital, for example, or at a border crossing, but your family deserves the security.