A second parent adoption is a legal procedure that allows a same-sex parent, regardless of whether they have a legally recognized relationship to 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. Married spouses may also be allowed to use their state’s stepparent adoption procedures in every state to confirm their parentage. States that recognize comprehensive domestic partnerships or civil unions allow couples joined in these legal unions to use the stepparent adoption procedures. New Jersey is one such state.
It is important to recognize, however, that a same-sex partner who plans the birth or adoption of a child with his or her partner is a parent – not a stepparent. 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.
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 second parent 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 is filed, the court will hold a preliminary hearing where it 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. Since the second parent adoption is taking place by consent, the hearing is a formality and the court will enter a Judgment for Adoption. After the Judgment for Adoption is entered, the information is sent to the State Department of Health, Office of Vital Statistics to change the birth certificate.
If there is a second natural parent that objects to the 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. This is because the adoption will, if granted, terminates their parental rights. Termination of parental rights cannot happen unless that person is represented by counsel, so the state provides that service free of charge.
At the preliminary hearing in a contested, second parent adoption, the same investigations noted above will be conducted. But in addition to those investigations, the court will require the parties to 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. A bonding evaluation would be appropriate in situations where the objecting natural parent may have been absent from the child’s life to establish whether there is even a relationship there that should be preserved. The bonding evaluation may include an evaluation of the objecting parent’s risk of harm to the child if that is a concern. Some courts, however, seek a more thorough investigation that would be conducted in a best interest evaluation. If the objecting parent has had a full, healthy relationship with the child, a second parent adoption terminating their parental rights is not likely to succeed.
If you are considering a second parent adoption or would like to learn more about the second parent adoption process, contact the attorneys of DeTorres & DeGeorge to schedule a consultation.