How to Protect Your Parental Rights as a Same-Sex Couple

Alex Garcia

A Quick Overview of Adoption in the US

While the US has made great strides in LGBTQ rights over the past decade, same-sex couples still face countless legal obstacles, particularly when they decide to have children. Many queer couples choose to adopt. Unfortunately, twenty-one states don’t have any protections in place to prevent discrimination against these couples, and eleven of those states have legislation allowing agencies to cite religious beliefs as a reason to turn the prospective parents away.

Some same-sex couples use IVF or surrogacy to have children. It may seem like there would be fewer legal complications with these methods, but in actuality these families require unique protections.

Why Do You Need to Pursue Second-Parent Adoption?

Say you and your same-sex partner are legally married. Your partner carries your child, and both of your names are on the birth certificate. That should be enough to establish you as one of your child’s legal parents, right?

Unfortunately, that is not the case. Legal parentage is automatic for the parent who is biologically related to the child, but the other parent needs to adopt the child in order to cement their rights. This can become an issue if your partner passes away or is incapacitated, or if the two of you decide to separate.

Luckily, second-parent adoption is now available for married same-sex couples in many states. This allows the second parent to legally adopt their child without impacting the other parent’s rights. Once this process is complete, the courts will recognize what you’ve known all along—that both of you are your child’s parents.

What’s the Process?

Second-parent adoption varies from state to state, so your experience will depend on your location. That said, the process generally includes:

  • Submitting documents to the court—such as completed forms, ID, medical test results, and background checks
  • Attending a hearing with your partner and child
  • Completing a home visit with a social worker who will observe you parenting your child
  • Waiting for the adoption order to be completed and the new birth certificate sent out

The process can cost upwards of $3,000, and many people find it time-consuming and invasive. However, at the end of the day it is the best way to protect your family.

What If You Can’t Adopt Your Child?

There are several states that allow married couples to pursue second-parent adoption, but don’t have any specific legislation guaranteeing that this will be honored for same-sex couples. This means that you could find yourself prohibited from completing the process.

You should consult a lawyer to find out about other options in your state. Many couples choose to work with a lawyer to create a legally binding co-parenting agreement or custody agreement.

Another thing that can give you peace of mind is making sure that you and your partner have up-to-date wills. A last will and testament is a legally binding document that specifies, among other things, what happens to your children after your death. You can each appoint each other as your child’s guardian in your respective wills. This does not provide the same protections as adoption, but is a good place to start as you investigate your options with a lawyer.

You can create a last will and testament on the Tomorrow app in just minutes.