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There are different scenarios for when a gay parent will want to consider adopting a child:
- A child is born by one partner to the relationship and a non-partner.
- When a child is born, the biological (natural) parents obtain parental rights for their biological child.
- If a parent/partner has a child from a previous relationship, the new person in the parent’s life wants to love that child as much as possible. For many gay parents, when it’s clear the new relationship is working, whether the biological parent marries his/her new partner or not, the nonbiological parent may want to become a permanent part of the child’s life by adopting that child.
- The gay parents seek to adopt a child where neither partner is the biological parent. Generally, New Jersey does permit gay parents to adopt children.
It’s natural for the biological parent to ask – can my new partner adopt my child? It’s natural for the nonbiological parent to ask about how to adopt your spouse’s child
Our same-sex family law firm advises same-sex couples on a variety of issues including same-sex couple adoption and co-parenting by gay couples. Parents should not have to adopt their own children, but it is legally advisable for non-biological parents to get an adoption or parentage judgment to ensure that their parental rights are fully protected no matter where they move or travel to, even if they are married, in a civil union or a registered domestic partnership.
Two Options for Same-Sex Marriage Child Adoption:
This New Jersey procedure allows a same-sex parent, regardless of whether they have a legally recognized relationship with the other parent, to adopt her or his partner’s biological or adoptive child without terminating the first parent’s legal status as a parent. This is the most common means of same-sex couple adoption in New Jersey.
Stepparent adoption
This New Jersey procedure allows a same-sex parent who marries his/her partner to adopt the child – in the same way that heterosexual stepparents can adopt a child in New Jersey – essentially by obtaining the consent of the other biological parent or terminating the child rights of the other biological parent. Termination normally involves a hearing to show that the other natural parent has abandoned the child, abused or neglected the child, or for other valid reasons. This is a less common but still frequently used avenue to same-sex couple adoption.
How does second-parent adoption work?
In New Jersey, the court action for the second-parent adoption is brought in the county where you live. You start the same-sex couple adoption process by filing a complaint reciting the demographic information about you, the child, and the natural parent. You also include information about other children of each party, information about how long the child has been in the care of the parties, and the intended name of the child after adoption. The natural parent has to consent to the adoption and sign a Consent Affidavit.
Once the complaint and consent are filed, the court will hold a preliminary hearing on same-sex couple adoption action. The court will decide if there needs to be a home study of the parties’ residence, a criminal background check of the adopting parent, and fingerprints. Sometimes courts forego these investigations. Once the home study, criminal background check and fingerprints are completed, the court will hold a final hearing on the same-sex couple adoption request.
Since the second-parent adoption is taking place by consent, the hearing should a formality and the court should enter a Judgment for Adoption. After the Judgment for Adoption is entered, the information about the same-sex couple adoption is sent to the State Department of Health, Office of Vital Statistics to change the birth certificate.
If a second natural parent objects to the same-sex couple adoption, the process is much more difficult.
- This can happen where one parent has a child from a heterosexual relationship, then wishes to have their parent in a same-sex relationship adopt the child.
- Or it can happen when you want your spouse in a second marriage to adopt your child from your first marriage.
If the second-parent adoption is contested, the objecting parent is entitled to legal representation paid for by the state – because the second-parent adoption request terminates the parental rights of the natural parent. In addition to the same investigations discussed above, the court will require the parties go to the expense of having a best interest, bonding evaluation and/or risk assessment done to determine whether it is fair and just to terminate the parental rights of the one natural parent and allow for the second-parent adoption. The evaluation may focus on both or either the gay parent seeking to adopt or the natural parent – especially if that parent has not been involved with raising the child for a substantial amount of time.
At DeTorres & DeGeorge Family Law, our family lawyers are skilled at handling same-sex couple adoptions. We advise gay parents who have questions about adopting my partner’s child. We’ll explain your rights and guide you through the same-sex couple adoption process. To discuss same-sex couple adoptions. call us at 908-503-2925 or fill out our contact form to make an appointment. We have offices in Clinton and Florham Park.
