State laws cover adoption and New Jersey is one of the friendlier jurisdictions when it comes to same sex couples adopting. In today’s economy, many families move. There are steps you can take in New Jersey to protect your rights in case you move to another jurisdiction and something goes wrong.

A legal parent is defined as a person with the right to live with a child and make decisions about his or her education, well-being, and health. Legal parents must support their children financially and emotionally. When a heterosexual married couple has a child, both parents are presumed to be the child’s legal parents. If the marriage ends, both parents are still the legal parents of the child under this parental presumption.

We cannot presume a finding of joint parental rights in the same sex marriage setting, whether involving natural birth or adoption. Non-biological parents should go through the legal process for second parent adoption as a precaution. This legal relationship will be a backup if the couple travels or moves to a state that does not recognize the parental rights of same sex married couples.

The adoption process

To adopt in New Jersey, a person must be at least 18 years old and at least 10 years older than the child to be adopted. A married couple may adopt jointly, or a married person who is living separately and apart from his or her spouse can adopt. In addition, a child’s brother, sister, aunt, uncle, grandparent, or stepparent may adopt.

There are different types of adoptions depending on the couple’s situation:

• Single (Individual) Adoption: This is the traditional adoption where a person seeks to adopt a child who has been made available for adoption by the birth parent(s) or the state.
• Joint Adoption: A couple asks the court to adopt a child who has been made available for adoption by the birth parents(s) or by the state.
• Second or Co-Parent Adoption: This involves one parent who has legal rights to the child and a second parent petitions the court for joint parental rights. The first parent isn’t giving up parental rights. This often occurs when one partner has adopted a child and the other partner wants to adopt the same child. This is a common situation when there’s a same sex couple and a birth through artificial insemination. When this happens it’s important to legalize the parental relationship to give the non-birth parent the same rights as the birth parent or to transfer parental rights completely.

New Jersey is one of the friendlier states for gay and lesbian couple adoptions.

• We were the first to specify that sexual orientation and marital status cannot be used to discriminate against couples who want to adopt.
• The state allows for second-parent adoptions.
• When a same-sex female married couple has a child using artificial insemination of donor sperm under medical supervision, New Jersey law recognizes the non-biological parent as a parent pursuant to the state’s the artificial insemination statute and the statutory marital presumption.
• Under state statute, a man is presumed to be the biological father of a child if he and the child’s biological mother are married to each other and the child is born during the marriage. In accordance with the U.S. Supreme Court’s landmark ruling in  Obergefell, a same-sex spouse is entitled to the same presumption, despite the statute using language such as “man” and “biological father.”

Adoption and same sex couples

The U.S. Supreme Court in 2015 recognized that gay couples have a constitutional right to marry, which has impacted all the legal rights related to marriage, including adoption. The Obergefell decision didn’t explicitly address adoption, but it states one of the benefits of marriage includes adopting children.

If a same-sex partnership dissolves, the second parent’s parental rights will come up if a child is part of the family. If a heterosexual couple splits up, a court will issue a child custody order if the parents don’t reach an agreement. When a same-sex couple splits up, however, the second parent’s rights can be less certain without a marriage or formal second-parent adoption.

Despite Obergefell, same sex married parents have been forced to ask the Supreme Court to confirm their parental rights.

• The U.S. Supreme Court held in 2017 that an Arkansas statute denying married same-sex couples access to the benefits that the state linked to marriage was unconstitutional to the extent it treated same-sex and opposite-sex couples differently.
• In 2016 the Supreme Court ruled a Georgia superior court had subject-matter jurisdiction to hear and decide an adoption petition, which triggered the Alabama court system’s full faith and credit obligation. A Georgia court entered a final judgment of adoption making V.L. a legal parent of the children she and E.L. had raised together. The two separated while living in Alabama and V.L. asked the state courts to enforce the Georgia adoption judgment. The state’s supreme court ruled against her. They decided the Full Faith and Credit Clause of the United States Constitution didn’t require Alabama’s courts to respect Georgia’s adoption judgment.  The Supreme Court unanimously overturned their decision.

While a New Jersey birth certificate identifies each intended parent and state recognition as a legal parent may be considered sufficient in most other states, non-biological parents should confirm their parentage through an adoption, given that some other jurisdictions don’t respect the rights of same sex couples as much as New Jersey does.

Without an adoption decree, non-biological parents may end up in a lengthy and costly custody dispute if they move elsewhere. Even if the family visits another state and something happens to the biological parent, without an adoption decree the non-biological parent may not have access to or make medical care decisions concerning their child.

Birth Certificates are not proof of parental rights because they’re created by government agencies. Adoptions are court orders that all states are required follow due to the Full Faith and Credit Clause of the U.S. Constitution. Every state must recognize an adoption by an LGBTQ parent even if its own laws would not have allowed the adoption.

Get the help you need

Family law is not a do-it-yourself matter. There’s too much at stake when it comes to your ability to be a parent to your child. If you have questions about adoption or want help in adopting a child, contact the Kingston Legal Group today. We are conveniently located on Route 27 In Kingston, Central Jersey, just north of Princeton.  Please write or call us for a near-term and reduced fee initial consultation.  We will listen to your facts, explain the law, and discuss your options to reach your worthy goals. Call today. You will be glad you did.