A judge in Brooklyn Surrogate’s Court recently sent shockwaves through the community with the decision refusing to grant a second-parent adoption for the non-biological mom in a married lesbian couple. Her reasoning was New York law already recognizes both women as parents because of the marriage. But families understandably have questions about what this decision means for them. Below are a few common questions and the answers I can give, based on what we know now. I will update as new information comes in.
Is a second-parent adoption still necessary in New York?
Leading experts on LGBT family law uniformly believe that same-sex couples must continue to pursue second-parent adoptions, even if both parents are on their child’s birth certificate. As I’ve written before, parental rights for the non-biological parent flow from the couple’s marriage. This means you're fine if you plan on never leaving the state of New York, or the patchwork of states that recognize same-sex marriage. But if you ever go to Disney World or the Grand Canyon, you could find yourself in trouble because Florida, Arizona, and 31 other states will not recognize your marriage, meaning that the non-biological parent’s rights will not be recognized either. Being listed on the birth certificate is not definitive proof of your parental rights. A birth certificate is only proof of the child’s identity and date of birth.
Faint of heart, skip to the next question: In the event of a medical emergency incapacitating the biological mother, the non-biological parent’s rights to the child will be in jeopardy, or at least in question, while in a state or country without marriage equality. In the event of an acrimonious split, a non-biological parent will be in a terrible disadvantage in a custody dispute if the biological parent moves to a non-recognition state.
What about Sebastian?
Interestingly, another case, also involving a child named Sebastian, decided in Manhattan Surrogate’s Court, reached the opposite conclusion. That judge concluded that both mothers were already legally mothers of their son by virtue of their marriage, but the judge still granted the second-parent adoption in order to insure universal recognition of both mom’s parental rights within the United States and abroad.
Sebastian’s parents, and other families who are in a similar position, are deciding whether to appeal, or simply re-file in Family Court, which can also enter second-parent adoptions. (In New York, there are two courts that both have jurisdiction over adoptions: Surrogate’s Court and Family Court.)
How can I protect my family?
The experts and I still recommend pursuing a second-parent adoption until same-sex marriage is recognized throughout the United States. (Even then it could be advisable for families who travel frequently overseas.) If you live in a county other than King’s County, you are unaffected by this ruling and can file your adoption in the preferred court in your county. If you live in Brooklyn, it is best to file your adoption in Family Court until this gets sorted out.
New York City’s Family Court has a bad reputation — if you’ve never been there. I’m happy to report that my experience as a lawyer in Brooklyn Family Court was very pleasant. More importantly to me, my same-sex couple clients felt they were treated with respect.
I completed a second-parent adoption in Brooklyn Surrogate’s Court last year. Is it still valid?
Yes, the judge only gave the reasons why she would no longer grant second-parent adoptions in the future. Her ruling did not affect second-parent adoptions that have already been granted.
My partner and I are not married. Does this affect our ability to get a second-parent adoption?
No, the judges ruling only related to married same-sex couples. Unmarried couples are not affected.