As of 2011, same sex couples can get married in New York. However, what this also means is thatsame-sex couples can get divorced in New York. While the Marriage Equality Act allowed for same-sex parents to list both of them on their child’s birth certificates, making them both the legal parents under New York law, the unfortunate fact is that many states still do not legally recognize the marriages of same sex couples. What this means is that if the couple separates or divorces, the party who is the biological parent of the child could take them to another state that does not recognize same-sex marriage and effectively deny the non-biological parent all of their rights to the child or children of the couple. Or, the non-biological parent could leave the state and attempt to get out of child support on the basis that under the law of the new state, the parties’ child is not theirs to jointly provide for. Therefore, even if they are married, it is imperative that same sex couples hire a family law attorney to help them obtain what is called a second parent adoption.
A second parent adoption, once ordered by a judge, will give the non-biological parent the same rights over the child as their biological parent partner. What this means is, if the parties are married in New York, split up, hire attorneys, and get divorced in New York, but one party relocates to another jurisdiction that does not recognize same-sex marriage—the New York adoption order will still give the non-biological parents the same right as the biological parent with respect to child support, custody, and visitation.
The process for a second parent adoption is very similar to that of a typical “stranger” adoption. An adoption can be ordered by either the New York Family or Surrogates Court. First, the couple’s attorney will file the initial paperwork with the court.
Later, there will be a home visit. This visit will often be from a social worker. Although the Probation Department can provide a social worker for free, it is often faster to obtain a court-approved social worker and pay for them to come to your home. It is important to look into the social worker’s background and history to ensure that they are used to doing home visits for second parent adoptions and are not only LGBTQ friendly, but familiar with the community.
The home visit will typically last around three hours, and during that time the social worker will look at your home to ensure it is child-safe, and review aspects of the couple’s background (social, financial, criminal, and medical).
In addition to the home visit, the parents’ attorney will provide them with the rest of the legal paperwork to fill out for filing with the court. This paperwork includes, but is not limited to the Order of Adoption, an Agreement of Adoption, and forms addressing the finances of the parents and medical history of the child.
Typically, it takes 6-10 months for all of the legal paperwork to be completed and the home visit to occur. Once the packet of documents is complete, the attorney will file the papers with the court. After filing, the file will be reviewed within the next few weeks, and shortly after the Adoption Order granted. Once this happens, both parents will have legal rights to their child that are recognized in all states and abroad.
Although the process may seem long and complex, every LGBTQ couple with children, even if married, should make sure that they hire a New York family law and divorce attorney to do a second-parent adoption. The benefits and rights are too important to put at risk.