Why Adoption Is Still an Important Step for New Jersey LGBTQ Families When One Spouse is a Biological Parent and One Isn’t


Recently, a member of the New Jersey Senate proposed a bill that would streamline the legal process for the spouse or civil union partner of a biological parent to adopt his/her spouse/partner’s child. The bill, if passed, would set up a speedier process through which same-sex spouses and same-sex civil union partners could adopt the other’s biological child conceived through assisted reproduction, insidernj.com reported.

At this point, you may be wondering, “well, with marriage equality the law of the land in all 50 states after the U.S. Supreme Court’s Obergefell v. Hodges ruling in 2015, the need for going through the trouble and expense of adopting my spouse’s child isn’t there anymore, right?” Well… no. As the senator’s bill recognizes, there are still plenty of very important reasons why it could benefit you and your family to go through the adoption process. Contact an experienced Hoboken family law attorney to discuss your specific situation and learn more about the best path for you.

Before the Obergefell ruling, there were some very good reasons for you — if your child was biologically related to your partner but not to you — to go through the legal steps to adopt that child. The law in all states gives legal parents some very strong rights when it comes to their children, including the right to shut out those the parent doesn’t want in the child’s life. If you’re not a legal parent or guardian, you don’t have those rights — which means you are at risk of being the one “on the outside looking in.” Biological parents automatically have that legal status. Non-biological parents, like stepparents, do not have that same level of legal recognition.

Adoption was also a big help if you moved to, or happened to be in, a state whose laws were unfriendly to LGBT parents. If you and your spouse relocated to Tennessee and separated, the courts there probably would consider you a legal “stranger” to the child unless you could show the proper paperwork establishing a legal relationship, like a completed adoption. Alternately, say you were in Alabama on vacation and an accident left your spouse in a coma and your child injured. It is entirely possible that you would not only have been denied the right to make medical decisions for your child, you might also have been denied access altogether, and have been unable to see her at all, especially if another relative (like your spouse’s parents) was hostile to your relationship and decided to intervene.

Adoption still may provide many vital benefits even after Obergefell

Now that the U.S. Supreme Court has made its ruling, those worries are a thing of the past, right? Well, not necessarily. Look at Texas, for example. In 2017, the state Supreme Court there expressly ruled that the 2015 U.S. Supreme Court marriage equality ruling did not automatically render that state’s defense of marriage law unconstitutional and did not require that states must provide all the same benefits to all married couples. It basically said that same-sex couples had the right to marry after the Obergefell ruling, but that many other marriage-related issues still remained undecided.

The U.S. Supreme Court refused to rule in that case, meaning that the state Supreme Court ruling is still in effect. While the Texas case involved financial benefits for spouses, the sweeping wording of the state Supreme Court’s ruling raises concerns about other family law issues and LGBT families.

In other words, even if you were married in New Jersey, had your child while married and have both spouses names on the child’s birth certificate, it is still possible today to encounter problems, especially if you’re in a state that strongly opposed marriage equality prior to the Obergefell ruling in 2015.

With something as important as your children, why take chances? If you are the non-biological parent of your child, adoption can remove that risk from the equation. If you adopt your child, then that makes you a legal parent of that child, just the same as the biological parent. Additionally, because of something in the federal law called “full faith and credit,” all the other states are required to recognize your New Jersey adoption of your child, meaning that you will have full parental rights over your child whether you’re in New Jersey, Texas, Alabama, or… wherever.

To find out more about adoption options regarding the child you share with your same-sex spouse or partner, reach out to knowledgeable Hoboken family law attorney Frank Marciano. Attorney Marciano and his helpful team have many years dealing with adoptions and are ready to get started working for you in protecting your family. To set up a consultation, contact the office online or call 201.656.1000.

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