And Baby Makes Three: Protecting Your LGBT Family

When my son was born, my name could not go on his birth certificate until I completed the process commonly referred to as “second-parent” adoption.  Despite everyone’s personal recognition that I was his parent from birth, it was a full 6 months later before my name was included on his birth certificate and I received legal recognition as his parent.

A few years later the Supreme Court decision legalizing same-sex marriage in the United States ushered in many changes in the lives of LGBT parents like me. Those who chose to marry could inherit each other’s Social Security benefits and avoid certain estate taxes. Parents whose children were born after a marriage could place the non-birth parent’s name on the birth certificate immediately. So why do many lawyers and other family professionals still advise non-birth parents to complete a second-parent adoption even if their name is on the birth certificate already? Let’s take a look.

1.  A presumption is just that. When the non-birth parent’s name is recorded on the birth certificate it creates what is known in Minnesota as a “presumption of parentage.” This presumption is based on the idea that if a child is born while two people are married, the child born to the couple can be “presumed” to be their child.  However, the presumption is rebuttable, and if a known (rather than anonymous) donor is used, no presumption exists.
2. Divorce and death can always happen.  Hope for the best and plan for the worst. It’s a good motto at any point in life, but should really be considered when it comes to your rights as a parent of your child. Perhaps you are certain your marriage won’t end in divorce, but why take that chance? Upon a divorce the birth parent may challenge your right to custody and, upon death, any third party may challenge your child’s right to inherit from you. The only certain way to avoid these risks is through a second-parent adoption.
3. So can a complete change of heart.  There is always the chance that the birth parent may just change their mind about their relationship with you or your relationship with your child. In Minnesota, we simply can’t know what a judge would do if a birth parent asked to have a non-birth parent removed from the birth certificate, or to establish that the non-birth parent is not the child’s parent.

Only a full adoption, with an accompanying decree, can legally establish a parent-child relationship. If you have questions about any portion of second-parent adoption, we’re always happy to chat about either the legal or personal/emotional side of the process.