Baby Makes Three, Part II: Don’t Go Without A Second Parent Adoption

Scales of JusticeOh my goodness, oh my goodness. So last week we wrote about the budding trend in marriage-recognition states toward adding a second parent to birth certificates based on the parents’ marital status. In short, in some marriage-recognition states, the non-biological, same-sex parent’s name can be placed on the birth certificate as the presumptive second parent. And we cautioned that while this may make some administrative hurdles easier to clear, it is not to be relied on as a replacement for adoptions.

And this week, we have been hearing a groundswell through the grapevine of some REALLY BAD LEGAL ADVICE (do you hear us yelling?) coming from all kinds of usually reputable corners – medical professionals, social workers, etc.

Some non-lawyer types are now telling expecting couples that second-parent adoptions are no longer necessary. NOT TRUE. FALSE. NONSENSE. RUBBISH.

Readers, Can You Hear Us?!?

Please, this is important and just a little confusing (which is why we’re revisiting the topic), the addition of a name to a birth certificate does not replace the necessity of a second-parent adoption because that action conveys no substantive legal rights to the non-biological parent.

Maybe this will help conceptualize the problem: Consider the case of a straight marriage.

Imagine a child born of the marriage listing Jane and John Doe as the Mary Doe’s parents. Shortly after Mary’s birth, it becomes clear that Jacob Poe is Mary’s biological father. Is Jacob out of luck because John is on the birth certificate? Heck no!

Now, there’s an array of circumstances that can influence these factors, but the bottom line is that an Adoption Decree, as far as we know, will get Full Faith & Credit from all of our fifty states, but a flimsy administrative presumption will not.

Maybe this will help scare you: Think of moving from Washington D.C. across the Potomac River to Virginia.

Imagine that you and your spouse are married in D.C., conceive in D.C., give birth to a baby in D.C., are both listed as parents of the baby on the birth certificate, but never complete a second-parent adoption (in D.C. or anywhere else). Imagine that you and your spouse split (kind of messy because Virginia won’t recognize your D.C. marriage) and that your ex, the biological mother, now asserts you are not the (legal) parent of the baby you’ve been helping to raise, but to whom you have no conclusive legal connection. You may very well be in a heap of trouble.

The second parent adoption versus the administrative presumption would have made all the difference in the world in this scenario.

Alright, we’re stepping down from this soapbox for now. But, please, heed our advice; there is nothing so precious a responsibility as a child, be sure to protect your legal relationships to your little ones, so that wherever you live or visit, your child will be recognized as yours.

As always, we welcome your questions and encourage you to ask them before your big day.

Legally Yours,

Heather & Emily


Photo Credit: © Tmcnem | Dreamstime.com

Heather McCabe and Emily Russell are family law practitioners who regularly serve the LGBT community in all kinds of legal affairs – from adoptions to dissolutions/divorces. McCabe has taught family law and legal writing and has been on the faculty at Georgetown Law, American University, and University of Baltimore. Russell worked as a lobbyist before coming to the law. Whether through document drafting, mediation, collaborative law, or litigation, McCabe and Russell are committed to the creation and security of the unique families they serve.