Why Securing Parental Rights is Critical for LGBTQ+ Families
For LGBTQ+ families, securing parental rights goes far beyond peace of mind – it is an essential step to protect the foundation of your family. Legal recognition safeguards your family unit, especially in a shifting legal landscape where federal protections may not be guaranteed.
Second-parent adoption is one of the most effective ways to ensure your family is protected. It provides legal recognition for both parents, securing your rights regardless of biology, gender identification, or where you live. While Illinois offers robust protections, families who rely solely on state-level recognition risk vulnerabilities when traveling or relocating to less supportive states. A second-parent adoption creates a legal safety net, ensuring your family’s security wherever life takes you.
What is a “Second-Parent Adoption”?
A second-parent adoption is a legal process which allows a parent who did not give birth to or is not biologically related to their child to be officially recognized as a full legal parent. This process ensures both parents have equal legal rights to the child, without removing or interfering with the rights of the biological or birth parent. Unlike other types of adoption, which might involve replacing one parent’s legal rights with another’s, a second-parent adoption simply adds legal recognition for the second parent, solidifying their role in the family.
This process is especially significant for LGBTQ+ families. For instance, it applies to families where children were conceived using donor gametes and/or born via surrogacy. It ensures both parents have equal and legally recognized rights to their children. Even if both parents are listed on the birth certificate, a second-parent adoption provides stronger protections by establishing a legally binding judgment which is enforceable nationwide. Think of it as a “belt-and-suspenders” approach. Second-parent adoption emerged to fill gaps in parentage laws, offering LGBTQ+ families a way to fully protect their parental relationships. It is a crucial safeguard, ensuring stability and security for your family in any legal scenario.
Why is This Necessary If Both Parents Are Already on the Birth Certificate?
Many parents assume being listed on a child’s birth certificate is sufficient to establish parental rights. However, a birth certificate is an administrative document, not a definitive legal determination of parentage.
A second-parent adoption provides a court-ordered judgment ensures your parental rights are recognized nationwide and beyond. This is vital because parentage laws vary widely across the country and may continue to become more fragmented. In some states, LGBTQ+ families may face challenges if legal disputes arise, or if they encounter unsupportive institutions during emergencies. For example, a hospital in a restrictive state might question the non-biological parent’s authority to make medical decisions for their child.
An adoption decree eliminates these uncertainties. It is recognized under the Full Faith and Credit Clause of the U.S. Constitution, meaning it is enforceable nationwide, regardless of state laws or policies. Additionally, for families considering international travel or relocation, adoption decrees issued in the United States may be recognized in other countries under the framework of the Hague Convention. This international treaty ensures that adoption decrees from member countries, including the U.S., are generally respected, though some countries may require additional legal steps for full recognition. Relying solely on a birth certificate leaves gaps in your family’s legal security, while an adoption decree closes those gaps permanently.
The Legal Landscape: Illinois vs. Federal Law
Illinois is one of the most supportive states for LGBTQ+ families, offering comprehensive protections for parentage. This makes it a haven for families seeking to secure their rights. However, the national legal landscape is not as stable.
Federal protections, such as marriage equality established by Obergefell v. Hodges, have played a significant role in recognizing LGBTQ+ relationships and families. But these rights could be challenged or narrowed in the future. If such changes occur, states with restrictive laws could pass measures limiting or refusing recognition of LGBTQ+ parental rights.
A second-parent adoption acts as a safeguard against these risks. Because adoption decrees are court orders, they remain valid and enforceable even if federal or state laws change. For LGBTQ+ families, completing a second-parent adoption is a proactive step to protect their family from legal uncertainties.
What Can I Expect from the Second-Parent Adoption Process?
The process for second-parent adoption is typically straightforward. It begins with filing a legal petition to adopt. Families provide supporting documentation, including proof of marriage, the child’s birth certificates, and affidavits explaining why the adoption serves the child’s best interests.
A home study and the appointment of a Guardian ad Litem (GAL) are standard components of adoption cases. The home study evaluates the living environment, while the GAL ensures the child’s best interests are represented in court. However, in second-parent adoptions for married couples, these requirements are often streamlined or waived by the court, particularly when both parents are already listed on the birth certificate.
Once the petition is filed, the adoption process typically takes 8–10 weeks to finalize, depending on court availability. Working with an experienced attorney can ensure the process runs smoothly, avoiding unnecessary delays or complications.
Special Circumstances: Divorce and Second-Parent Adoption
Divorce can add complexity to an adoption, but it does not make it impossible. In fact, completing a second-parent adoption before finalizing a divorce can simplify legal and financial procedures. By securing parental rights first, both parents can avoid disputes about custody or parentage during the divorce process. If divorcing amicably, you can pause the divorce process to complete the adoption first. This ensures both parents’ rights are firmly established before addressing the division of assets or other matters related to the divorce.
For families with urgent financial matters, a post-nuptial agreement can address these concerns while an adoption is pending. Once the adoption is finalized, the divorce process can proceed with both parents’ rights fully recognized, providing clarity and stability for all parties involved.
Beyond Adoption: Additional Steps to Secure Your Family’s Future
While second-parent adoption is a critical step in protecting your family, it is only part of the bigger picture. Estate planning is another essential tool for ensuring your parental rights are upheld and your family’s financial security is safeguarded.
Estate planning provides peace of mind by preparing for unforeseen circumstances. Every family should have a will that names guardians for their children, ensuring the people you trust most will care for them if something happens to you. Powers of Attorney (POA) for healthcare and finances are equally important, giving someone you choose the authority to make critical decisions on your behalf during emergencies.
For LGBTQ+ families, the importance of estate planning cannot be overstated. In addition to wills and POAs, trusts and pour-over wills can be valuable for protecting the financial future of surviving spouses and children. These tools not only provide tax benefits but also ensure your assets are distributed according to your wishes. Together with second-parent adoption, estate planning forms a comprehensive strategy to protect your family now and in the future.
What If I Plan to Travel with My Children?
Traveling can present unique challenges for LGBTQ+ families, especially in states with restrictive family law policies. To protect your parental rights while traveling, it is essential to carry the right documents. These include your adoption decree, marriage certificate, your child’s birth certificates, and Powers of Attorney for healthcare and finances.
Having these documents on hand provides clear evidence of your legal relationship to your child, ensuring you can make decisions and assert your rights in any jurisdiction. Especially in emergencies, these documents can make a critical difference in avoiding disputes or delays.
Why Second-Parent Adoption Is the Gold Standard
Second-parent adoption is not just a legal formality – it is the gold standard for securing your family’s future. It ensures both parents are fully recognized as legal parents, protecting your family against challenges and uncertainties.
If you are an LGBTQ+ parent, taking this step is one of the most important things you can do to safeguard your family. At Beermann LLP, we are here to guide you through the process with individualized care and expertise. Contact us today to learn more about how we can help you protect your family for generations to come.
Beth F. McCormack, Equity Partner, and Justin Smith
For more on Ms. McCormack, please visit:
www.beermannlaw.com/team/beth-f-mccormack.
