Here in Massachusetts, same-sex couples can adopt children together. However, often when couples enter a relationship, one of them already has a child — either one they’ve adopted or a biological child.
That person is the child’s legal parent, while his or her partner has no legal rights as a parent unless he or she formally adopts the child. That’s known as second parent adoption. Many gay couples opt for second parent adoption not just to formalize the family unit, but to ensure that they have full parental rights.
Adoption allows the formerly “non-legal” parent to make important medical and other decisions for a child. It also prevents them from losing the child to another family member if the other parent should die. It can be particularly crucial if the couple divorces or breaks up.
If there’s no adoption agreement in place, as we’ve seen in cases that have played out throughout the country, a person who’s parented a child for virtually that child’s entire life can be prevented from having any sort of custody or visitation rights by an ex without court intervention in the matter.
There are some strategies for people who find themselves fighting for the right to continue to parent their child after a divorce or break-up with the child’s legal parent. They need to provide evidence that they are “de facto” parents. This means that even though they have no biological or legal relationship to the child, they have cared for him or her, participated in all aspects of the child’s life and provided emotional and financial support. They need to show that the couple and the child lived together as a family.
This can be an arduous, stressful and expensive process. Even though judges are supposed to make decisions in custody cases based on the best interests of the child, the matter is still in their hands. Further, if the couple has moved to a state that’s not as accepting of gay couples and parents, convincing a judge of that parent-child bond can be difficult.
While there are legal steps short of second parent adoption, such as co-parenting agreements, that couples can take to protect the non-legal parent’s rights, adoption is the best way to do it if the two of you did not originally adopt the child together. A Massachusetts family law attorney experienced with same-sex legal issues can provide guidance.
Source: GLAD, “Family Law in Massachusetts,” accessed Dec. 15, 2016