Gone are the days when one overheard such sad comments as, “I always wanted to have children, but since I am gay/lesbian, that will never happen.” Today, things are very different. Families with two moms or two dads seem to be everywhere. Unfortunately, many of these moms and dads do not realize that they can both be legal parents, that legal status for both parents confers many benefits, and that there is a tax credit that typically covers the expenses.
Here are a few fictitious family situations that illustrate the importance of second parent adoptions:
Jane and Mary became the parents of their daughter five years ago with the assistance of a sperm bank. Jane gave birth and Mary left her career to be a stay-at-home mom. Lately, the couple’s relationship has been rocky and Jane is threatening to take their child and never allow Mary to see her again. Can she do that?
Bob and John became the parents of their 2-year-old son with the assistance of a surrogate in another state. The surrogate had no parental rights and Bob became the sole, legal parent of the child. Last month, Bob was tragically killed in a car accident. In addition to the grief of losing his partner, John is faced with a lawsuit by Bob’s parents who are trying to take the child away from him. Can they do that?
Alice was in the Air Force when she fell in love with Sue. Soon after Alice’s discharge, Sue gave birth to twins. Alice died after an extended illness that almost financially ruined the family. Sue applied for the twins’ military and social security survivorship benefits, but was denied because they were not Alice’s legal children. Can the government do that?
Fritz and Amy were legally married in Massachusetts. Fritz is transgendered, so they are having a child with the assistance of a sperm donor. When the child is born, Amy will be a legal parent, but Fritz will not. Can Amy take the child from Fritz? Can her parents fight for custody if she dies? Can the government deny benefits?
In Texas, without the protection of a second-parent adoption, these scenarios could end in disaster because Mary, John, Sue and Fritz are “legal strangers” to their children. A second-parent adoption not only provides protection in each of these situations, it also allows a child to be covered on the second parent’s health insurance and enables the child to inherit from the second parent’s family as a legal grandchild.
So, what is a second-parent adoption? It is basically a stepparent adoption (except in Texas the parents are not legally married). The couple petitions the court to allow the nonlegal parent to adopt and then completes all the requirements for a Texas adoption, including a home study and a criminal background check. The home study, by a licensed social worker, is a narrative about the family and a recommendation to the court as to whether the adoption is “in the child’s best interest.” If a criminal background check reveals some past indiscretion, the real issue will be whether that past event affects a person’s current ability to parent.
When all the paperwork is complete, the couple and their child appear, with their attorney, before the judge, who will review the court file and ask a few simple questions. If all the adoption require- ments have been met and the adoption is in the child’s best interest, the judge will sign the order. It is that simple—now the child has two legal parents.
Many LGBT parents have heard, from uninformed attorneys, that second-parent adoptions are not possible in Texas. This is so untrue. Like the law in many states, Texas law about second-parent adoption is unspecific and open to interpreta- tion. However, since this is an atypical area of law, it is of utmost importance to work with an experienced attorney and a knowledgeable judge.
Raising children is expensive and many families don’t have extra funds to hire an attorney to handle a second- parent adoption. Luckily, at least through 2012, there is a federal adoption tax credit that completely covers all adoption- related expenses for most LGBT families. There is no reason not to provide your family with the protection of a second- parent adoption, so do it this year while the tax credit is still available.