Second parent adoptions or “co-parent” adoptions have been allowed in
the Commonwealth of Massachusetts since 1993. A second parent adoption,
or often referred to as a “co-parent” adoption, allows the
non-biological parent of a couple’s children to now enjoy the same
legal rights and responsibilities of the biological parent. The second
parent adoption gives the ability of unmarried couples to jointly
petition for the adoption of children of the relationship, and is most
common among gay and lesbian couples, this allows the biological and
non-biological parent to be granted equal legal status, as it relates
to the child or children.
In a traditional adoption, the
biological parents must agree to terminate their parental rights in
order for the adoption to go forward. That is not the case in a second
parent adoption where the parties petition jointly for the adoption of
the children.
In 1993, the Supreme Judicial Court of Massachusetts
ruled that there is nothing in the Massachusetts Adoption Law that
would prevent a non-biological parent from co-adopting his or her
partner’s child. That the ruling was made by the highest court in the
Commonwealth, and the decision is binding in all counties. Although you
may notice some difference in the process from county-to-county or
Judge-to-Judge, in general, couples can expect to follow the same
substantive procedure.
The adoption process begins with the
filing of an adoption petition and supporting paperwork. It is strongly
advised that the couple use an attorney to assist them with this
adoption process in these cases, as once the adoption petition and the
supporting paperwork are filed, a criminal background check on all the
adults in the household is required and completed. Additionally, the
Court may require an in-home study, wherein the home is evaluated by a
social worker to determine the suitability of your family for “the
proper rearing of children.” This is conducted by the Department of
Children and Families (DCF) formally known as the Department of Social
Services (DSS.)
This may seem intrusive, but it is usually
required to complete the process. ,Although, there are private agencies
that are authorized by the Department of Children and Families to
conduct the home studies and may be able to be retained by private
payment to complete the home study, it still requires opening your home
to inspection. It should be noted that as you may guess, there is often
a substantial waiting time before DCF can get into the home.
The
parties may seek a waiver of the home study, however, a waiver of the
home study is not taken lightly by the Court. You and your partner can
obtain information, letters of support, and affidavits attesting to the
fact that you and your partner function as a family and will make good
parents, but this alone may not be enough to waive the home study. It
may seem counterintuitive that a biological parent who joins in the
adoption process with the non-biological parent would have to go
through a home study. However, the Courts normally follow the adoption
process in a traditional fashion.
Your attorney can advise you
as to whether or not the procedures or requirements instituted by the
Court in the county where you and your family reside could be or should
be waived. However, the Courts will grant the waivers within their own
discretion and some may not follow the same rationale as others.
Once
the petition is filed, the home study is satisfactorily completed, the
CORI is returned and all background checks are also satisfactorily
completed, the adoption unit in the Court will likely schedule a
private hearing before the Court either in the Judge’s chambers or in a
closed Court room in order to finalize the adoption.
The
finalization of the adoption is generally a happy event where family
and friends are invited to take pictures and celebrate the adoption of
the child.
A second parent adoption is important because it
grants the non-biological parent full legal rights regarding his or her
child or children in a same sex relationship. It puts them at the same
legal status as the biological parent. The adoption in and of itself
does not change the legal relationship between the two parents, but it
does give recognition and protection to both parents in the
relationship to the children, especially in the event of a dissolution
of the relationship, as the child would now be considered the legal
child of both the biological and non-biological parent. Additionally,
the child is now entitled to the benefits of the non-biological parent,
such as health insurance, life insurance, and other lifetime benefits.
The child, by law, may inherit upon the death of the non-biological
parent as a result of the adoption, and in the absence of proper estate
planning on the part of the parent, would inherit under the laws of
intestate succession.
In regard to the parental rights of the
parties, in the event of dissolution of the relationship, both parties
would be entitled to custody and/or visitation with a minor child on
its face. Each would be able to seek legal and physical custody as well
as an appropriate parenting plan to allow time with the child or
children.
If the child that is adopted is not biologically
related to either party to the relationship, once the child is adopted
by one of you, you still may petition for a second parent adoption. The
process is essentially the same. Be wary, however, that many
international adoptions do not allow married same-sex couples to adopt
a child or for unmarried couples to jointly adopt a child abroad. If
the goal is for the parties to complete an international adoption, it
may be that one of you would have to adopt the child in the foreign
county and then jointly adopt through a second parent adoption here in
the United States.
by:
Julie A. Dialessi-Lafley, Esq
