According to the federal government, 15% of same-sex couples have children as a part of their household. This could include children who were adopted or biologically conceived by one or both of the parents. In that case, there are parenting issues at play if the child was adopted or conceived before the couple began their relationship.
After the Supreme Court legalized same-sex marriage in Obergefell v. Hodges, we have seen numerous clients who have asked us about adoption issues. Oftentimes, we hear from people who want to adopt their partner’s child without impacting that parent’s rights. The good news is that New Jersey law makes that possible, and the couple does not even need to be married.
Every child has a right to be a part of a cohesive and loving family. In many cases, their stability depends on it. This is why many LGBT couples want to legally formalize parenting relationships. There are still some outdated assumptions that could present difficulties with the absence of legal protections that help LGBT couples.
Here, the issue would arise in the context of one of the same-sex spouses having a child that they either adopted or biologically conceived before their marriage. If two people adopted a child after their marriage, both would be considered legal parents. This is an automatic presumption, and it would remain that way, even if the couple eventually got a divorce. There are situations in which a couple gets married when one already has a child.
The legal concept at work here is called second-parent adoption. Here, one parent already has legal rights to the child, and they do not want those rights disturbed. However, they also want their partner to share in the legal status of parenting. In most cases, this arises when the legal parent has already adopted a child on their own, and they now want their current partner to also have the same legal status. New Jersey law allows LGBT spouses to use the same procedures that stepparents can use for adoption.
LGBT couples have very clear reasons for wanting both partners to be legal parents. Without this legal status, one person does not have the right to make decisions regarding the child’s health, education, and well-being. Once this procedure is effective, the adopting parent will have an equal say with the other parent. This relationship is permanent, and it will endure no.
On the flip side, once second-parent adoption is legally effective, the adopting parent’s rights and obligations remain, even if the marriage ends. For example, the adopting parent will be entitled to parenting time and can seek primary custody. Child custody would be determined as part of the divorce. The adopting parent would have the obligation to pay child support to the custodial parent. Even if the parent without custody never adopted the child, New Jersey law may still even recognize their right to spend time with the child after a breakup if they played a significant role in raising the child and became a psychological parent.
The court will need to do its due diligence to confirm that this arrangement is in the best interests of the child. This means that a third party will need to conduct an adoption home study. This person will still interview the prospective legal parent and conduct a family interview. Even though you may already have a parent-child relationship, you would still need to go through this step to satisfy the court. This is not something that should be taken lightly.
Nonetheless, even with the legal hurdles, here are the reasons why you would want to pursue second-parent adoption as an LGBT couple.
It is crucial to have co-parenting rights recognized where they are legal. A family law attorney would tell you that not every state in the country allows for second-parent adoption. Without formalizing the process in New Jersey, you could be faced with a situation where you end up in a different state, and your new state of residence does not allow for second-parent adoption. Hence, the new state would not legally recognize the second parent.
However, if you take advantage of the laws where it is legal, another state cannot take away the second parent’s rights if they move to that state. The United States Constitution requires that a court order in one state be recognized in another.
This is still a formal process, and you would need the help of a family law attorney just as you would in any adoption. If you have decided to move ahead with second-parent adoption after speaking with a family lawyer, here are some steps in the process:
If you are considering second-parent adoption, it is vital that you move quickly. Even if you are adopting a child where your partner already has legal status, the process still takes time. There is paperwork and a court process. In addition, both people would need a parenting plan in place. This is an arrangement that takes some time to think through, and you should consult with a divorce lawyer about legal issues that you may face. Not only should you address current issues, but you should also plan for future legal contingencies.
Contact the divorce law firm of Lawrence Law at (908) 645-1000 with any questions about same-sex marriage and parenting issues. Our Watchung and Red Bank divorce attorneys can guide you through the adoption process and help you with other issues.