Second Parent Adoptions - Or Why You Might Need to Adopt Your Own Child

The unfortunate reality is that not all states provide the same rights and protections to queer families.  With the Obergefell decision by the Supreme Court in 2015, marriage was ruled to be a fundamental right that is guaranteed to same-sex couples. In Pavan v. Smith, the Supreme Court held that Arkansas’ marital presumption of paternity and artificial insemination statutes must be applied equally to same-sex and different-sex married couples.  Citing their own decision in Obergefell, the Supreme Court said again that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples,” including both parents being identified on the birth certificate.

There are many routes to becoming parents for queer families.  For many families, their children may only be genetically related to one parent – whether conceived through artificial insemination, IVF, or surrogacy.  For all families in Washington state, the law provides for a legal presumption of parentage when a child is born during a marriage, except in the case of surrogacy. When a child is born during a marriage, both parents are presumed to be the parent of that child, regardless of gender or genetic relationship with the child.  The presumption even extends to couples who divorce within 300 days of the birth of the child or who get married after the child is born and the non-biological parent asserts their parentage.

Why is it then important to have a second parent adoption if Washington has a presumption of parentage statute? Some states and jurisdictions may not recognize the legal presumption of parentage that is granted in Washington state – even if both parents are on the birth certificate.  A “second parent adoption” is a form of adoption that allows a parent to adopt a child without the “first” parent losing any of their rights.  All states, regardless of their own laws, must honor a court order, like an adoption, that is granted in any other state.  In VL. v. E.L.  in 2016, the Supreme Court decided that Alabama had to recognize a Georgia adoption by a non-biological parent in a lesbian artificial insemination case because Full Faith and Credit applies to adoption, and that the adoption and resulting equal parentage rights must be recognized by Alabama, even if the state disagrees that same-sex couples should be afforded the right to be equal parents.

A second parent adoption, like any other adoption, ensures that a child receives the same legal rights, medical insurance coverage and inheritance as a biological child.  Additionally, if the law ever changes regarding presumption of parentage, you have a court order which is a stronger protection than just a birth certificate. Washington state allows for second parent adoptions even when a couple is not married.

Adoptions are recognized in all states and even internationally.  If you do not complete a second parent adoption and travel to a place that does not recognize the rights of both parents in a same-sex marriage, your rights as a parent could be at risk.  While outside of Washington, the concern would be that if your child got sick, you could be denied access to their medical records and not be able to make important decisions about their care, if you are not the birth parent. 

Having to adopt your own child can feel humiliating, alienating and unfair…and it is!  But if something happened to your partner who is the biological parent, you wouldn’t want to be in a situation where you are not able to exercise your rights as a parent. This is a horrible situation for any parent to contemplate and we want to give queer families the tools to ensure this never happens to them. Second parent adoption is still the “gold standard” for protecting the rights of many queer families.  Any challenge to your relationship with your child is eradicated.

No matter how a queer couple builds their family, it is critical that they take the necessary legal steps to ensure that they, as the intended parents, are actually recognized as such.  If you think you need a second parent adoption, Contact Us today to schedule a Second Parent Adoption Consultation.