Marriage creates a spousal relationship but not a parental relationship.
Although most states have a presumption that a child born to a woman is also the child of her “husband,” many courts refuse a gender-neutral interpretation and believe this presumption is based on biology. Sadly, this was the situation in a 2015 New York case in which the second mother was denied the right to even appear in court to request custody or visitation.
There is absolutely no doubt that a Texas adoption creates a permanent, legal relationship. In 2015, the US Supreme Court unanimously agreed that a lesbian mother’s second-parent adoption would be honored in all states.
Seven national LGBT organizations including the Lambda Legal Defense and the Human Rights Campaign have this to say about he issue, “An adoption or other court judgment of parentage is the surest way to make certain that you will be respected as a parent in every state, no matter where you travel or move.” You can find the full text of the advice here.
One case at a time, LGBT parents are fighting in courts throughout the country – and the law is evolving. There are more and more successes for second parents who have not adopted because they are recognized as a “de facto parent.” However, this victory is not in every state or in every case. Even if the second parent does gain visitation or custody, it is only after a long, expensive court battle.
An accurate birth certificate that lists both same-sex parents is a wonderful indication of parentage, which is typically accepted by schools or doctors. However, it definitely is not proof of parentage and can be challenged or changed.
Seven national LGBT organizations including Lambda Legal Defense and the Human Rights Campaign have this to say about the issue:
“Being on your child’s birth certificate does not make you a parent under the law. If you are not respected as a parent under the laws of your state, the fact that your name is on your child’s birth certificate will not establish a legal tie between you and your child.
Even if you are on your child’s birth certificate, we still strongly recommend that you get an adoption or, if possible, a court judgment of parentage. This is needed even if you are respected as a parent in your home state based on your marriage because this is the surest way to make certain that you will be respected as a parent in every state.”
You can find the full text of the advice here, see question 3.
While most legal matters such as name changes or divorces must be handled in the county where you live, the venue (place) for an adoption is flexible. It can be in the county where the child was born, where the adoptive parents live, where the adoption agency is located – or any place that is agreed to by the parties.
Most prospective parents like to start the adoption process before the child’s birth so they can complete much of the process before job of parenting newborn consumes their lives. You can contact our office any time after the first trimester of pregnancy to set up an initial appointment.
Whether to use an anonymous donor through a sperm bank or ask a friend to donate is a personal decision. Some female couples feel strongly that they want to know the donor, while others feel just the opposite. Regarding expenses, it may be more expensive to use a sperm bank initially, but there will be lower legal fees because the known donor’s rights will not need to be terminated.
We strongly advise against using a sperm donor that is located online.
If you are considering a known donor, contact our office before you start inseminating about how to protect your family.
Our clients sometimes find a child with the assistance of an adoption agency. In these situations, the agency may handle termination of the birth parents and our office can handle the adoption for both same-sex adoptive parents.
Now that the same-sex marriage is legal, surrogacy agreements typically name both male partners as “intended parents” and an adoption is not necessary.
Our office will charge you a flat fee. To enable all families to afford the protection of a second-parent adoption, we offer a sliding scale and payments over time your fee will depend on your household income and complexity of your case.
Unmarried adoptive parents who are working and paying taxes should be able to take advantage of a tax credit that will reimburse all expenses, including legal fees, dollar-for-dollar.
For more information from the IRS about tax credit, see here.
Some Texas attorneys advise same-sex parents to obtain joint custody (known in Texas as Joint managing Conservatorship.) This typically occurs when the attorney is not familiar with second-parent adoptions or practices law in a county where the judges refuse to grant these adoptions. While joint custody provides both parents with a legal relationship to the child, it does not provide the same protection as an adoption. The second parent is a custodian, not a legal parent. They do not have the same rights as a legal parent and the rights they do have can be modified.
Second parent adoption laws vary from state to state. However the law is very clear that a court order from one state is granted “full faith and credit” by courts in other states. The U.S. Supreme Court confirmed this principle in an opinion about a second-parent adoption in 2016.
When a child is born, they can be given the name they will keep at the time of the birth, even if this is not the same last name as the birth mother.
A child’s name can also be changed as part of the adoption process. Sometimes parents want to change their names when they have a child, so the entire family will have the same last name. Our office can provide you with instructions so you can handle this yourselves, without the assistance of an attorney.