With the Trump administration taking office on January 20 and the eventual placement of new justices on the Supreme Court, there’s concern on the part of LGBTQ parents about the future of their parental rights, including the ability to get a second parent adoption.
Second parent adoption guidance has not changed: parents should do second parent adoptions, even if married, so that there are no concerns crossing state lines. Parents are also encouraged to seek passports now for their children and update their social security documents so that both parents are represented.
Second parent adoption is a court order by which a co-parent adopts their partner’s parental rights, regardless of marital status, providing the child with two legal parents with equal legal status in terms of their relationship to the child
Is my current second parent adoption under threat? The ability of LGBTQ Oregonians to get second parent adoptions significantly pre-dates the landmark 2015 Obergefell v. Hodges ruling, because adoption and parental rights are determined at the state and county level, not at the federal level. Oregon is one of several states that have allowed second parent adoptions by unmarried same-sex couples in some of their county court levels, such as Multnomah County, so any reversal of the Obergefell v. Hodges ruling would not end the ability of Oregonians to pursue second parent adoptions. Any court judgment issued in an Oregon court is recognized from state to state as part of constitutional rule, so second parent adoptions granted in Oregon establish parental rights in all 50 states regardless of any change in federal law. If you have a second parent adoption ruling, any change at the federal level will not impact your parental rights.
Should I get a second parent adoption now? Even with marriage equality being the law of the land throughout all 50 states, it’s still a highly recommended practice among legal experts for non-biological parents to adopt their children. Having your name on the birth certificate does not guarantee protections if your legal rights are challenged in court. A second parent adoption could be beneficial if there is any challenge to one’s parental rights at the federal level.
Those who are currently in a same-sex marriage or a registered Oregon domestic partnership may want to adopt their non-biological children through stepparent adoption procedures in the state of Oregon to ensure their parental rights. While parents should not have to adopt their own children, it is highly recommended for LGBTQ parents in Oregon to get a court order ensuring their parent rights are protected in all 50 states, regardless of how adoption law may change in other states if they move or travel.
Additionally, a parent’s gender identity and expression should not affect that person’s rights to custody or parenting time. Transgender people can become legal parents by birth, by adoption, or, in Oregon, by marriage, domestic partnership, or donor insemination statute.
Who can’t get a second parent adoption? If the child already has two legal parents, one of the parents would have to relinquish their parental rights to grant the second parent adoption. This issue also impacts known donors to couples when the donor has not terminated their parental rights. It would be necessary to obtain written consent of that person with parental rights to the adoption or give them the opportunity to object the adoption in court.
Additional considerations? Again, Lambda Legal suggests that LGBTQ parents ensure their child’s Social Security number record lists both parents as the child’s legal parents, and obtaining a passport for each child that lists both parents as the child’s legal parents.
Parents with questions can find additional resources here:
- National Center or Lesbian Rights: Legal Recognition of LGBT Families
- Lambda Legal Post Election FAQ
- OGALLA & Lambda Legal Legal Rights of Registered Domestic Partnerships in Oregon
- NCTE and ACLU: Protecting the Rights of Transgender Parents and their Children
- Legal resources: OGALLA ogalla.org