When a same-sex couple decides to raise a child together in California or anywhere in the United States, it is customary for the child to be formally adopted by the non-biological parent. Both spouses may adopt the child together if neither is the natural parent.
“Due to a recent court decision, the rules may be changing and in the future it may no longer be necessary for same-sex couples to formally adopt,” according to James Ballidis, an adoption attorney practicing in California.
A Surrogate Court judge in New York indicated that a child born within a lawful same-sex marriage did not need to be formally adopted by the non-biological parent. The case took place in Brooklyn and the judge indicated that because New York had enacted same-sex marriage and both mothers were listed on the child’s birth certificate, the non-biological mother was already the boy’s parent. The mother could not adopt the boy because she was already his mother.
The decision raised legal questions that could have implications nationwide if more courts adopt this stance.
It has long been established under most state codes that a child is presumed to belong to both spouses if the child is born to married parents, explained attorney Ballidis. In California Family Code section 7611, for example, the law outlines specific situations when a person is presumed to be the natural parent of a child. This code provision presumes someone is a parent if “the presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.”
The law was obviously written at a time when only heterosexual marriage was recognized and the reasons were apparent why a man should be presumed to be the father of a child who is born to his wife. However, the law does not specify that this rule apply only to heterosexual marriage. By the statute’s plain language, it would be possible to make an argument that at least in the case of lesbian couples, a legally married same-sex spouse would be presumed to be the child’s parent without the need for formal adoption proceedings.
The same California Code provision also indicates that a person is presumed to be a child’s natural parent if, “With his or her consent, the presumed parent is named as the child’s parent on the child’s birth certificate.” This means that if the same-sex spouse’s name is put on the birth certificate, he or she should be considered the natural parent.
“While at first glance this ruling would seem to make life easier for same-sex couples because they no longer need to go through a formal adoption process to raise a child together, it creates myriad complications if parents are unable to adopt when they desire to,” attorney Ballidis explained.
Without a formal adoption, there is a significant risk that the non-biological parent’s rights would later be curtailed or not recognized, especially if the couple traveled to a state that did not recognize same-sex marriage. If the couple divorces, there is also a concern that the non-biological parent could lose his or her parental rights.
These issues need to be addressed and legal questions regarding adoptions within a same-sex marriage are likely to persist as long as the laws differ from state to state. The judge who made the controversial ruling indicated that she is aware her ruling creates a legal risk for parents but that courts in other states will need to settle the issue. Her opinion also indicated that granting the adoption would mean that “true marriage equality remains yet to be attained” and that “a same-sex marriage remains somehow insufficient to establish a parent-child relationship.”
While this may be true, parents in California and throughout the U.S. may prefer the certainty of adoption until the laws become more uniform and until same-sex marriage is unequivocally accepted nationwide.
Additional articles on adoption are available to the public free of charge through our office. If you would like to request one, or to speak with an adoption attorney, feel free to call 888-752-7474 or contact us online.
