Step Parent Adoption, Second Parent Adoption for LGBTQ families
“Step parent adoption” is the term used when any person adopts the child of their spouse. This can refer to families with heterosexual parents or families with same sex couples. “Second parent adoption” is often used to refer to a situation where a child only has one parent and that parent’s spouse/partner in a same sex relationship adopts the child.
You may hear the terms “second parent adoption” step parent adoption” and “same sex adoption” used interchangeably when referring to a partner in a same sex relationship adopting a child who is legally already the child of their spouse.
Who Can Adopt?
In Texas, the law states that a person must have “standing” to file an adoption case. “Standing” is a legally valid reason and a situation that is recognized under law. Not just anyone can file a petition to adopt a child.
Formalized marriage of two years or more is most favorably looked upon by the courts. This is all true for ALL couples, including heterosexual couples. In the LGBT community, it is common to see a couple who has been legally married since 2015 or 2016, but had already been together for many years prior. So evidence is submitted to the court. Then the judge understands that the couple has been in a long-term, committed relationship even prior to the date on the marriage license.
What if the couple is not formally or legally married?
There are adoption situations that are a little out of the “ordinary” (Ordinary = two people formally married to each other). For instance, some people never got married formally but are informally married or “common law married” in Texas.
In order for this to be the case, the couple must live together, agree to be married, and hold themselves out as married. There needs to be evidence showing that an informal marriage exists. Generally, it is best for the couple to be formally married to each other to show the judge that there is stability and commitment. This is true for heterosexual couples as well as LGBTQ couples.
What if there is “another parent”?
In some situations, there may be another parent in the picture. For instance, there may be a biological parent or sperm donor who is not involved with the child, but is still the legal parent of the child, or has a potential claim to parental rights regarding the child.
If there are any potential unknown fathers (a case when a women is pregnant but may not be sure who the biological father is), or a “legal father” (a woman has a child while still legally married to a man who is not the biological father), the parental rights of these people will need to be legally terminated.
It is important to understand that in Texas all existing and potential paternal rights will need to be accounted for and dealt with legally before an adoption can be granted.
What happens after the petition is filed
Once an adoption is filed with the court, a court-approved Texas home study worker will be appointed to make a home study in the case. This happens even if the adopting parent has been there since day one of conception. That social worker will meet with the parents and examine the home and make a recommendation about the adoption to the court.
In addition, the judge MAY appoint an attorney specifically to represent the interests of the child, but that does not always happen. This is up to the judge.
Both parents must have proper background checks performed and filed with the court.
Evolving area of law
There are some differences in the procedures from county to county. Each Judge has certain preferences and authority to determine how things are done in his/her courtroom.
This area of law is relatively new, compared to other areas of family law, and it is not uncommon to find that some attorneys, courts and court staff are not yet experienced with this particular type of case.
What to do next
If you have been thinking of filing an adoption case, the first step is to have a legal consultation with an adoption attorney who is familiar with the specific laws and procedures for LGBTQ families. You should gather any relevant documents (a copy of your marriage license, child’s birth certificate, paperwork from fertility institute or private contracts).
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Editor’s note. This blog post was originally published on February 15, 2019 and was updated on June 17, 2020.
