The Fundamental Unfairness of “Second Parent Adoptions”

KidsWhat’s a “second parent adoption”? If you’ve got the stomach for a legal subject that is truly nauseating and unjust, read on. More and more same sex couples are having children of their own through surrogacy and otherwise. Second parent adoptions are a way the non-biological parent can be legally recognized as the “second parent” of their own child.

The Issue: In a same sex relationship that opts to have a child through a surrogate who actually carries the child, only one parent can be truly genetically related to the offspring and hence considered the biological parent. His or her partner is every bit a parent to the child, yet if something happened to the biological parent, the child might be taken away from the non-biological parent (“NB Parent”) by a family member of the deceased. The NB Parent has no legal status over the child he or she has raised to that point even though they’ve wiped noses and tears, taught the child to tie a shoe and ride a bike and otherwise loved this child as their own for years.

Imagine the emotional trauma of a child losing one parent through death and then being separated from their other parent by a distant family member – which sometimes happens to be a judgmental family member of the deceased who objects to the “lifestyle” of the NB parent.

The Solution: All states allow for “step-parent adoptions”. This is when a man or woman marries and the new spouse becomes a parent to a child from a difference relationship or marriage. When the union is successful and the child begins to view their step-parent as “Mom” or “Dad” a stream-lined application process has been put in place where the step-parent can petition the court to have them declared, not as a biological parent, but as a “legal parent”, imbued with all the rights, duties and responsibilities of a natural biological parent. This generally means the other biological parent has given up parental rights. The child’s last name can be changed to that of the step-parent, and the newly minted Mom/Dad is listed as the parent on an amended birth certificate. The child is truly “theirs” as a couple and judges like nothing more than finalizing these adoptions. They’re lovely events.

The Problem: Many states, like Florida, do not afford any legal recognition to same sex couples. A simplified step-parent adoption isn’t an option to a same sex couple with a child, because they are not legally married. And a domestic registry offered by many municipalities and cities doesn’t cut it.

The Legal Contortion: We all have friends who have adopted a child from an agency. It is a long, grueling and extraordinarily expensive process. There’s lots of paperwork, applications, classes, interviews, fingerprints, background check, questionnaires and home studies. To all couples, it’s a worthy process to qualify to adopt a child that isn’t ones’ own, to bring him or her into the home and raise that child as your own.

This is same process sex parents must go through to have the NB parent declared the legal parent of their child. Step-parent adoption is not an option.

Remember, same sex parents must go through this prolonged and expensive process for the NB parent to adopt a child who is already living under their roof, whom they’ve helped raise for months or years. It’s not to obtain permission to adopt a child from a foreign state or country. The NB parent essentially has to qualify to continue to do what they are already doing – rearing someone they love and consider their own, but for their non-legal status.

As if this isn’t enough indignation, many jurisdictions will not allow Second Parent Adoptions at all. Sometimes it depends not only on which circuit will allow it, but which judge within that circuit will authorize it.

The Solution: The fall of the Defense of Marriage Act by the US Supreme Court this summer was just the first step. This will afford same sex couples some federal protection in states that recognize gay marriage, and possibly afford some federal benefits even in those states that do not recognize gay marriage, like Florida.

However, it does absolutely nothing to the laws of individual states, like Florida. Same sex parents will have to continue to navigate these turbulent waters of Second Parent Adoptions until there is a better solution, like the legal recognition of same sex marriage in our state.

While this may seem remote and distant, many are surprised when I tell them that gay adoption by individuals wasn’t even legal in Florida until just a few years ago. So, we can all hope the wave of progressive legislation we’ve seen recently swings south.

About Author: Walt Blenner is the owner of Blenner Law Group, P.A. in Palm Harbor where he practices in the areas of personal injury law, wrongful death and estate planning.

Image courtesy of photostock/

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