Whether Same-Sex Couples Still Need to Do a Second Parent Adoption?
Since the United States Supreme Court issued the Obergefell v. Hodges decision in 2015, same-sex marriage has been the law here in Kansas as well as the rest of the United States. Historically, only one same-sex parent’s name was on his or her adopted child’s birth certificate, and the second parent would have to adopt the child subsequently. Now, both parents’ names can be on it. As a result, my LGBTQ clients frequently ask whether it is still essential for the second parent to adopt the children, even if his or her name can be on the birth certificate. I have written the following blog post to go over issues around second-parent adoption for same-sex couples.
Why a Second Parent Adoption May Still Be Necessary
A “marriage presumption” has historically existed regarding children’s parentage—a husband’s name would automatically be placed on the birth certificate of a child his wife gave birth to, even if he was not, in fact, the child’s biological parent. This presumption did not exist for same-sex couples, and when one parent gave birth to a child, the “second parent” had to adopt the child later to attain legal parental rights.
On June 26, 2015, the United States Supreme Court issued the Obergefell v. Hodges decision, which held that the U.S. Constitution requires same-sex marriage to treated as legal like any other marriage. Many same-sex parents now believed that the marriage presumption would also apply to them too, rendering obsolete the extra step of adopting your own child. While I agree with that argument’s logic, I contend that there are stronger reasons in favor of second-parent adoption.
If your name is on a child’s birth certificate, it creates a strong presumption of parentage, but I still advise my same-sex clients to go through with an adoption for the following reasons. First, second-parent adoption is a painless, streamlined, and inexpensive process. None of the traditional hurdles to adoption are present, such as opposition from a biological parent or a home study. In essence, this is a paperwork exercise. Second, it is not yet apparent that having your name on a child’s birth certificate gives you the same rights as an adoptive parent. As a result, if your child becomes injured in another state, you want to be sure that you will be able to make important health care decisions on his or behalf. A second-parent adoption takes away any questions and guarantees that you will be recognized as the child’s parent in all 50 states. Third, for couples that utilized a known sperm donor, second-parent adoption further terminates the donor’s parental rights. Finally, if you later divorce your spouse, your second-parent adoption will put you on a completely equal footing with your spouse regarding custody. If you do not adopt your child, your spouse could argue that you are not entitled to the same custody rights because you are not a biological or adoptive parent.
