What Are the Alternatives to Second-Parent Adoption?
Answered by Kate Kendell, executive director of the National Center for Lesbian Rights. Nov. 15, 2000
[Editor's note: Read the updated information about laws in Pennsylvania]
Q: My partner and I live in Pennsylvania. She is pregnant with our first child, who is expected in February 2001. We have wills and durable powers of attorney for each other. What other legal documents can we get to protect our family? We understand that second-parent adoption is not an option in Pennsylvania at this time but what about guardianship?
Sincerely,
Justus
A: Dear Justus,
Unfortunately, you are correct that second-parent adoptions currently are not available in Pennsylvania. On Nov. 8, 2000, the Pennsylvania Superior Court held that a same-sex partner cannot adopt her partner's legal children under state law without extinguishing the existing legal parent's rights. [See In re Adoption of R.B.F., 2000 WL 1673363 at ¶ 14 (Pa. Super. 2000)]
You and your partner already have executed two important documents to protect your family in the absence of the possibility of a second-parent adoption: wills and durable powers of attorney. Another important document, which you also mentioned, is a nomination of guardianship or conservatorship.
A nomination of a guardian or conservator assigns the care and custody of the child to another responsible adult in the event that the child's legal parent dies or becomes physically or psychologically unable to care for the child. While the nomination is not legally binding, most courts will give great deference to a clear nomination of guardianship in cases where there is no other legally recognized parent. Because the required format of these documents varies significantly from state to state, you are strongly urged to have the nomination drafted by an attorney who is aware of the requirements in your state.
In many states, this nomination can be included in the biological mother's will. In an attempt to stave off challenges by other relatives, the biological mother also should include a statement that she intentionally failed to name any of these relatives as the guardian of her child because she does not believe it would be in the best interest of the child to be placed in their custody.
You and your partner also may want to enter into a co-parenting agreement. You can find sample co-parenting agreements by going to FamilyNet's "documents to protect your family" page. You also can find these documents in the National Center for Lesbian Rights publication, "Lesbians Choosing Motherhood", which will soon be available on our website. While a judge is not legally required to enforce these agreements, some courts have looked to these types of agreements as evidence of the parties' intent.
Sincerely,
Kate Kendell
Kendel is Executive Director of the National Center for Lesbian Rights
Nov. 15, 2000