News In Brief: Second-parent Adoption

Since it is a holiday weekend and things are pretty quiet, I’m doing a bit of catch up. There are some interesting recent cases I’d been meaning to comment on. Here’s my chance.

It seems I haven’t mentioned second-parent adoption before, which actually surprises me. Now’s as good a time as any to run through this.

Generally speaking, when a child is adopted a new parent or set of parents take the place of the original parent or parents. That means that in the typical case, the rights of the existing parents are terminated and the adopting parent acquire rights instead.

But sometimes people really want to add an additional parent rather than substitute new for old.   For example, if couple have kids and one of them dies, the survivor becomes a single parent. That person might repartner or remarry. After a while, everyone might agree that the new person should become a legal parent. But no one wants the surviving parent to lose his/her rights.  What you really want to do is add a second-parent to the legal family.

Generally, the law allows this in most places for at least some people. If the second couple is a heterosexual married couple, the new spouse can do what is called a “step-parent” adoption.

Lesbian couples raising children face a similar but distinct problem.  If one woman uses donor sperm and gives birth to a child, she is a legal mother, but her partner is not.    This is problematic for many reasons.

Over a long period of time a number of determined lawyers developed an analog to step-parent adoptions generally called “second parent” adoptions.   (If you want to know a whole lot more about all this, I invite you to read a law review article I wrote some time ago.   You can get it here.  It’s free, though you will need to register.)   These adoptions can now be concluded in many states.   (You can find a detailed map showing availability here and other resources are available on the web.)

Not all states permit second-parent adoptions, however.  Indeed, some states (Florida comes to mind) do not permit lesbians and gay men to adopt at all.   So questions do arise from time to time about whether one state must recognize an adoption from another state, where the second state would not have allowed the adoption in the first place.   The answer, derived from the Full Faith and Credit Clause of the United States Constitution,  has been (with one pending exception, I think) “yes.”  So, for example, North Carolina had to recognize a second parent adoption completed in Washington, even though North Carolina would not have  permitted such an adoption in the first place.

Now that’s a tremendously long lead in to a very small point.  But the background is valuable and I’m sure I’ll come back to this topic.

In January the Iowa Supreme Court issued a decision in a case where a lower court invalidated second parent adoptions years after they were completed.   This isn’t a multi-state case, but it is the same sort of issue.   Once the adoption is completed, is it subject to challenge in a different court in a different context?   The answer here, once again is no.  Not because of the Constitution this time (it’s all in Iowa) but because the adoptions were final and had been completed in another action.