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Gay Parenting 101: Tools to Protect Gay and Lesbian Families - Part 1, Second Parent Adoption

The previous entry detailed some of the problems that can occur when same-sex parents have unequal rights, as most such couples do in the U.S. The next few will talk about some of the legal tools available to grant rights to the non-biological mother, in the case of lesbian couples using donor insemination, or the second adoptive parent, in the case of gay male or lesbian couples adopting.

The oldest and most widely used tool is something called Second Parent Adoption. I'll explain what it is, how it works, where it's available and what's wrong with it.

Second Parent Adoption was invented by attorneys at the National Center for Lesbian Rights based in San Francisco. The first second parent adoption was granted in 1987 in California, and there have been second parent adoptions granted in close to half the states in the US (although it is a legal tool available state-wide only in a handful).

Second parent adoption is a new legal tool based on an old one: step-parent adoption. Step-parent adoption occurs when a child who has only one legal parent (generally because of the death of the other parent) gets a second one. Say you have a woman whose husband has died. She remarries and after some time comes to feel that her new husband’s role in her child’s life is truly parental and wants legal recognition of that. She then petitions that the new spouse be granted full parental status and the state approves.

Step-parent adoption differs considerably from the more common forms of adoption (which are often called “stranger adoption”). There is no home study to determine fitness of the parents. There is no “surrender” of the child, since the child is not moving from one family to another. The adoption is done solely because the parties are married, the legal parent requests it and the new spouse wishes to be a parent. It’s a relatively easy, relatively cheap, minimally intrusive procedure in all 50 states.

Second parent adoption was first granted in California and has spread to other states by analogy with step parent adoption. Those asking for the adoption to be granted say that the biological or adoptive parent should have the right to add a second parent who is not married to her/him just as s/he would a spouse. Arguments in favor have generally come from the idea of the best interest of the children. Children are very much disadvantaged when one parent is unacknowledged and has no legal rights or responsibilities. Decades of research have shown that children of same sex couples do as well as those of opposite sex couples psychologically and emotionally, and it only seems fair that they should have the same legal protections. Very mainstream organizations like the American Academy of Pediatrics and American Psychological Association have come out in favor of second parent adoption.

The results in court have been mixed. A map showing where second parent adoption is available can be found here . It actually paints a little too optimistic a picture, since some of the states marked as “unknown” have since been ruled out for second parent adoption with the wave of often very broad legislation and constitutional amendments enacted to discriminate against same-sex couples. For example, in Virginia second parent adoption has been ruled out, as has any recognition of same-sex relationships. Also, the states where trial courts have granted second parent adoptions are ones where at least one has occurred. In many cases, this means only that if you are an exemplary case and you get the right judge, you can get a second parent adoption, not that it is generally granted.

Still, there are whole states and parts of other states where this is an option and it does in fact grant full parental rights to the second parent. For many of us in many places it’s the only tool we’ve got and we’re grateful for it. The first second parent adoption in NY occurred in 1992, when my son was four years old. I knew the family slightly. One of the mothers is a pediatrician and the other has a PhD in child psychology. They were financially secure, had been together for years before they had a child, their relationship and desire to parent together was well documented long before the pregnancy. They were considered a good first case.

I sat in a community meeting where a group of gay family lawyers talked about who should go next after we had that first one granted. The criteria we were given were: long term relationship prior to birth of child, documentation prior to conception of intention to parent together, financial security including joint ownership of a home, advanced degrees for both parents (preferably in education, medicine, psychology or related fields), supportive extended family on both sides. It was demoralizing to listen to. The woman next to me whispered, “Do we stand up and walk out when they get to the part that rules us out?” I was there until the last one – my parents disowned me when I came out, so we weren’t good candidates. I suppose I don’t have to say how unfair it is that heterosexual couples don’t get scrutinized in that fashion when they have children, just to give their kids basic rights.

In some places second parent adoption is still in that groundbreaking state, and it’s a hard and uncertain process. In some it’s pretty routinized. So, what’s wrong with it?

- It’s expensive. This varies from place to place. It can be just a few hundred dollars or a few thousand. It depends in large part whether you need a home study (you do in NY), need specialized and extensive legal help, need one or more court appearances. Remember, straight couples get equal parenthood for free. It comes with marriage (which comes with gifts and financial advantages and health insurance, too!) Lesbians and gay men typically have to spend a lot of money to have children. We do it gladly, but we’re often very stretched when we do. It’s disheartening to have another big expense on top of sperm bank fees and health insurance (which we don’t always get through the usual spousal means, remember) or adoption agency fees.

- It’s intrusive. Again, this varies from place to place. If you need a home study, someone has to come to your home and evaluate you as parents. In some cases a guardian ad litem is appointed to represent the child’s interests, which sort of suggests that the parents don’t represent the child’s interests. In less intrusive situations, you still have to get signed affidavits supporting your petition to adopt. Courts have typically not been friendly to our families and our community, and it’s scary often for lesbian and gay parents to have that kind of intrusion. It’s scary for the kids, too, if it’s not being done when they’re infants. In places where it’s expensive and a long and protracted process, parents often wait until they complete the family to go through second parent adoption. They have to do a separate petition for each child, but can do one home study. Children old enough to be questioned in the home study can feel like their family is tenuous, or that they might be taken away from their parents.

- It’s too late. At best it can be completed in a few months – in my state and some others it generally takes two years or more. Childbirth is quite safe but women do die during childbirth. Women die after childbirth and before a long legal process can be completed, including in car accidents and from illnesses. Couples break up, too, before second parent adoption is completed. We need to do all the not quite parenting legal documents I described those who can’t get full legal status as doing, even if we’re doing second parent adoption, because we can’t wait for second parent adoption and we need whatever little protection we can have in the interim. And those cost money, too.

-It’s not universally available. If you live in Virginia, it’s not much consolation that you could get a second parent adoption if you lived in New York. If you live in the right part of Minnesota (like my sister and her wife do) it’s pretty easy to do. I did one of the affidavits and my nephew had two legal parents before he was four months old. If you live in the wrong part of the state, though, you don’t get to do it at all.

- It’s not durable. Couples have done second parent adoption and then moved to states where their equal parenthood has not been recognized. Couples have done second parent adoption and then the bio mother has left with the child and moved to a state where her ex is no longer a parent. A woman named Sharon Silverstein tried to have all California second parent adoptions nullified when she broke up with her partner and coparent and wanted to undo the second parent adoptions she had agreed to. California was the first state to have second parent adoption and has the most in the country. Silverstein won at the appellate court level and the legal status of thousands of families was in question. She lost at the court of appeals level and the state legislature also stepped in and there are again options for same-sex parents in California, but no one should have to live with the uncertainty that was rife in that state when the case was unresolved. Some of the cases in other states are still unresolved. Children of heterosexual parents don’t have to worry about whether they have rights to their parents’ support based on what state they live in. Ours shouldn’t either.

- It’s offensive. Even if it goes really well, even if it's treated just like a step-parent adoption and the biological or adoptive parent's say so is sufficient to grant it, even if it’s minimally intrusive, even if it doesn’t cost much - second parent adoption is a legal fiction that protects our families only by forcing us to deny them. Adoption is a wonderful legal tool for bringing children into a family and if done properly protects the rights of all - the birth parents, the child, and the adoptive parents. Step-parent adoption is an excellent way to bring legal acknowledgement to a change in a family when a single parent marries and the new partner over time becomes a parent. But in both cases adoption is about legal recognition of change in a child's parents. It is just the wrong tool to acknowledge parenthood that has had no change. My ex and I were equal parents from the start. We conceived of our kids before we conceived them, planned and hoped and struggled through years of infertility together. We were parents from the start. We’re not step-parents and we shouldn’t need a legal process that demands that we pretend we’re becoming what we always were just to receive the rights our families always should have had.



So, am I saying not to do second parent adoption? Not at all. In fact, I think those who can ought to do it even when other tools are available. For all its faults, it’s generally the best tool we’ve got. I think a special place in hell should be reserved for people like Sharon Silverstein who fuck with what little protection we have just to achieve their own selfish aims. By all means, go ahead and do second parent adoption if it’s available to you. But let’s realistically acknowledge its limitations and not present it as the answer to the problem of lack of legal recognition for same sex parents. It’s an answer for a few families and in general it’s the best or only answer for those who can do it. But it’s not an answer to the social and legal inequity as a whole.

Next Up: More Tools To Protect Gay and Lesbian Families: Civil Union, Domestic Partnership, and Marriage
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