Is Adoption Needed in Same Sex Marriages with Kids?

same sex marriages

In many states, unmarried same-sex couples have the option to build their families by second parent adoption, so that both partners establish legal parenting relationships with their child.  This has been an option for nearly 20 years in New York.  Now that same-sex marriages are available in more and more jurisdictions, I am often asked whether adoption is still necessary or important – the answer is unequivocably, YES!

Legalizing the relationship between the adults in the household does not protect the relationship between the non-biological parent and the child.  So the non-biological soccer mom who may be waking the child up in the morning, making her lunch and putting her to bed at night, is legally a stranger, and the rug could be pulled out at any moment.
The only way to guarantee that this parental relationship is legally recognized in every jurisdiction is through a court order.  If the non-biological parent is not married to the biological parent, this is called a second parent adoption.  If the adult couple is married, it is called a step-parent adoption.

What is necessary in a Second or Step-Parent Adoption?
Both biological parents must consent to the adoption.  If a known donor was used to help a lesbian couple conceive, he must sign an extrajudicial surrender of his parental rights and a consent to the adoption.  If an anonymous sperm donor has been used, the family will need to obtain a letter stating such from the sperm bank.  In many states, the child’s consent is also necessary if she or he is over a certain age (most commonly, age 14).

What is involved in the Adoption process?
The adoptive parent petitions the Court to request the adoption.  That petition is backed up by several documents, including:
• Fingerprints , which are submitted for a criminal background check. (this may also be necessary for other adults in the home).
• An address history, which are submitted for a check of the child abuse registry.
• Letters of reference from friends who have observed the child and prospective parent.
• Doctor’s notes saying that the parent is healthy enough to raise the child.
• Medical history of the child.
• A home study completed by a social worker.
• Financial information about the parents’ income.
• The child’s original birth certificate.
• Attorney-certified copies of the parents’ marriage certificate, divorce certificates, name changes, if appropriate.

Why is adoption necessary? 
Being established as the legal parent has many advantages, including:
• You will be recognized as the child’s legal parent in jurisdictions that do not recognize same sex marriage.
• You can make medical decisions for the child, to take the child to the doctor, and to visit the child in the hospital.
• You may make educational decisions for the child.
• You can claim the child as a dependent on your taxes.
• You can put the child on health insurance offered through your employer.
• The child can get Social Security disability or workers compensation benefits from you.
• You will have standing to file for access and parenting time with the child if you and the biological parent split up.
• You will have the obligation to support the child financially until she or he is grown.
• Sense of security and belonging for the child.
• The child has a right to inherit from you even if you have no will or if your will is found to be invalid.
• You will raise the child in the event of the death of the child’s biological parent.
• You may be entitled to parental leave under the Family & Medical Leave Act.
There is no doubt that the adoption process is intrusive, expensive, and can be overwhelming, and many families resent the need for it.  But the reality is that it is still necessary for the children of same sex married couples, just as step-parent adoptions are to protect the children for opposite sex married couples.  Adoption is the gift of peace of mind to parent and child. Priceless.

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About Joy Rosenthal

Joy S. Rosenthal, Esq. is an experienced, caring New York City-based Family and Divorce Professional Mediator and Attorney. Joy founded Rosenthal Law & Mediation in 2006 to use both law and mediation as a tool to help families as they move through transitions. Her services include Divorce Mediation and Elder (adult sibling) Mediation, Adoptions, Collaborative Divorce, and representation in custody and visitation disputes. She also offers wills and estate planning. Visit Joy at

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