Second Parent Adoption to Protect Your Family’s Rights

Following the 2015 Supreme Court decision of Obergefell v. Hodges, LGBTQ couples gained access to the marital rights afforded to heterosexual couples. Unfortunately, the parentage statutes in Ohio have not been updated to reflect the legalization of same- sex marriage. Therefore, there are still additional steps that may be necessary for LGBTQ families to solidify their parenting rights.

The parent who carries the child is automatically granted the legal rights as a natural or biological parent. If the biological mother is unmarried, the child’s biological father can be named on the birth certificate or his genetic paternity can be proven through a later legal process. However, if the second parent is not the biological parent, then he/she does not have access to the same statutory procedure to establish genetic paternity.

In cases of lesbian couples, the biological mother is the legal parent, and the couple must take steps for the other parent to obtain legal rights. If the biological mother is married, her spouse can be designated as the second parent on the birth certificate. When two men start a family, they must utilize adoption or surrogacy. If the men are married at the time of these processes, they may both be granted legal parent status in the adoption decree or parentage order.

LGBTQ families will often utilize a second parent adoption to formalize the legal rights of both parents. This can be if the parents were unmarried at the time of the birth or adoption of the child, but are now married and wish to give both parents equal legal parental status. Some married couples will use a second parent adoption to ratify the administrative designation of the non-biological parent on the birth certificate as an added layer of protection of their parental rights.

If the couple was not married at the time of the child’s birth or adoption, only the biological or adoptive parent is the legal parent. Upon marriage, the spouse of the legal parent becomes a stepparent. A stepparent’s legal standing is not equal to the legal parent’s standing, regardless of the parties’ intentions or the family history prior to the marriage. A stepparent cannot make legal decisions for the child, does not have the same inheritance rights as a parent, and is not granted custodial rights of a parent in the event of the termination of the marriage.

Through a second parent adoption, the non-biological parent is granted the same rights

and responsibilities as the biological or adoptive parent. The adoption process is only

available to married couples. An unmarried couple cannot adopt a child together, nor

can an unmarried partner adopt the other partner’s child without terminating the original

parent’s rights.

The second parent adoption is completed in the Probate Court utilizing the same process as a stepparent adoption. A stepparent adoption differs from a traditional adoption because the adoptive parent, known as the “petitioner,” does not replace the current parent. Rather, the adoptive parent is granted equal legal status as the current parent. Most LGBTQ families pursuing adoption in this context do not consider the adoptive parent to be a “stepparent.” The adoptive parent has likely always had the role of parent and not just the spouse of the legal parent. Our firm and the LGBTQ

community use the term “second parent” to identify that parent’s role. However, the court forms do not recognize the more inclusive terminology.

The process for a second parent or stepparent adoption has the same formalities as a traditional adoption. The adoptive parent must file a Petition with the Probate Court, provide consent of the legal parent, and complete a home study. The home study is conducted by an agency who will report to the Court about the safety and appropriateness of the adoption. After filing of the necessary paperwork and successful completion of the home study, the parents and children attend a final adoption hearing at the Probate Court. Upon granting of the adoption, the adoptive parent officially becomes a legal parent with the same rights, responsibilities, and duties as the natural parent.

When you are considering your family’s options to protect each parent’s legal rights, it is important to review the options with a family law attorney who has experience in this issue and can guide you in making the right choice for your family. Our team of attorneys has experience with assisting LGBTQ families with a compassionate and knowledgeable approach to protecting their rights.