"We adopted our daughter in 2010 in Texas," a reader wrote us through our Ask an Expert column. "As two single, unmarried men, we were told we couldn't both adopt. So now, my partner adopted as a single person and I am the managing conservator. With same-sex marriage legal nationwide now, can we both legally adopt, even if we're still unmarried?"
I am happy to report that since the Supreme Court's Obergefell decision, which brought marriage equality to all fifty states, and a lawsuit in Mississippi, which invalidated the only remaining ban on LGBT adoption, married same-sex couples can now jointly adopt children nationwide! For unmarried couples, though, the answer varies state by state or county by county.
I reached out to my friend Christine Andresen who practices LGBT adoption and family law in Austin to get some more information about Texas. Christine said that joint adoptions were less of a sure thing in 2010. Sometimes attorneys for same-sex couples would file one adoption and then an immediate second-parent adoption in two separate matters. Today, married couples should be able to adopt jointly throughout the state post-Obergefell—although these cases go more smoothly with some judges than others. Christine cautioned, "Unmarried couples should consider which county they live in, consult a lawyer who has experience with LGBT families, and only bring their second-parent adoption in the nearest LGBT-friendly county."
Your question raises an important issue. A lot of dads welcomed their children into their families at a time or in a state that did not allow for both dads to be on a pre- or post-birth order following a surrogacy, or joint adoption. Now that we have marriage equality, it is imperative that those dads who are not legally recognized complete a second-parent adoption. That adoption will protect the second dad in the event of a dissolution of your relationship or the death of the legally recognized dad. If the second dad should pass away, the child probably will not be entitled to Social Security survivors benefits without the adoption.
I recommend the second-parent adoption even if you were legally married at the time of your child's birth or adoption. Most states will not give the second dad a presumption of parentage based on your marriage. A recent New York case seems to have reached that conclusion, but most of my LGBT family law practitioner friends see that case as an outlier. The cases holding that the baby is a child of marriage are usually lesbian mom cases where the bio-mom's wife successfully established her parental rights.
Lastly, you should also be able to get a new birth certificate showing both dads as legal parents. Texas and some other states used to refuse to amend a birth certificate to list two same-sex parents, even if there was a second-parent adoption in another state, regardless of how long ago that was. However, according to Christine, it is now possible to make this amendment in Texas and have a two-dad birth certificate. In some states, not Texas, one dad may have to be in the "Mother" space, which shows that we still have work to do.
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Post contributed by Brian Esser, Esq.
Law Office of Brian Esser PLLC