LGBTQ+ Parents in NY Need to Protect Their Rights

On June 24, 2022, the Supreme Court released its decision in Dobbs v. Jackson, which overturned  the constitutional right to abortion.  This a tragedy for the sexual and reproductive rights of all people living in the USA.  Even worse, Justice Clarence Thomas in his concurring opinion made the chilling argument that the Court should go further and reconsider whether the constitution guarantees other “substantive due process” rights like the right to same-sex marriage, the right to same-sex intimacy, and the right to contraception.  

With so many of our rights held in the balance, LGBTQIA+ people are left wondering how to keep their chosen families safe and intact.  Of special concern is the rights of non-biological parents to raise and care for their children. If you are a non-biological parent, take steps now to protect your parental rights. Being on a birth certificate is NOT sufficient to protect your rights. The following is an assessment of your two options if you live in New York State, Judgment of Parentage OR Second-Parent Adoption.  

Types of Parentage in New York   

In New York, parentage can be established in a few ways, and the different ways have different benefits and challenges for you. The decision of what pathway to legal parentage is right for your family is an important decision that your attorney can help you make based on your family’s needs and risk profile. 

A person who contributed genetic material to create an embryo, or who gestated and gave birth, is automatically considered to be a legal parent unless they enter into a formal donor or surrogacy agreement. These legal agreements can disclaim the parentage rights of the donor or surrogate and allow the intended parents to assume those rights.   

Parents who are not biologically related to their child can establish their parentage through several legal pathways.   

Marriage:  In New York, a child born to a married couple can have a non-biological parent’s name listed on the birth certificate, which will be evidence towards demonstrating an intent to parent that will be accepted ONLY in New York and other progressive states, without the power of a court order or adoption. Having your name on the child’s birth certificate will NOT be sufficient to secure consistent legal parental rights in conservative states, internationally, and (possibly in future) before a conservative federal government.  It is essential that you do not rely on the birth certificate alone to prove you are a parent if you are a non-biological parent, especially in a family at risk for discrimination and violence.   

Second-Parent Adoption:  In a Second-Parent Adoption, the non-biological parent gains full parental rights without terminating the parental rights of the biological parent.  Although not all states allow Second-Parent Adoptions, the Supreme Court ruled that a Second-Parent Adoption granted in one state must be recognized by every other state in the case V.L. v. E.L. in 2016.  

Judgment of Parentage: As of 2020, the parental rights of non-biological parents can also be legally affirmed through a Judgment of Parentage.  Legally, a Judgment of Parentage does the same thing as an adoption. A Judgment of Parentage confers  the same parental rights and responsibilities in New York as a second-parent adoption, with a power of a court order. There may be strategic distinctions between the two processes, making different choices right for different families. Your lawyer can help you talk through your options and make the right decision for you. .

Should I Get a Second-Parent Adoption or a Judgment of Parentage?  

Non-biological parents can get their rights legally recognized using either a Second-Parent Adoption or a Judgment of Parentage.  So what’s the difference?  And why choose one rather than the other?  The answer will depend on the needs of your family.  

Judgment of Parentage - Pros and Cons  

A Judgment of Parentage is fast and easy, and should offer the same protection as a second-parent adoption. This process is relatively new, so we have less precedent to tell us how different states and entities will respond to this tool, although as a court order it should be given Full Faith & Credit. 

Here are some of the pros and cons:  

Pros 

• Simple:  All that is required is a short petition asking the Court to recognize the intended parents. 
• Cheap: A lawyer can guide you through this process for a relatively small fee.
• Quick: This is a simpler proceeding with fewer moving parts than adoption, and can be filed and signed more quickly. Exactly how quickly depends on your county and shifting delays due to COVID shut-downs, but we expect Judgments of Parentage to come back in a matter of months 
• Offers protection: In New York, an agency or court that sees a Judgment of Parentage will recognize you as a parent. Other states should also recognize any court orders made in New York, including Judgments of Parentage, and give them Full Faith and Credit.  

Cons 

• Potential resistance in conservative jurisdictions: While we believe the law requires courts, agencies, hospitals, and other entities to recognize the validity of a Judgment of Parentage no matter what state you’re in, we know we have to be realistic about other jurisdictions. We don’t have legal precedent and history of states recognizing them the way we do for adoptions. Forcing a conservative entity to recognize your parentage could take a long and traumatic legal fight, although we think you have a strong argument that the judgment would ultimately need to be recognized as binding. 
• Not recognized by laypeople who could discriminate: If you’re in a hospital, airport security, government agency, or police station environment and you explain that you’re legally a parent by a Judgment of Parentage, they may not recognize this and understand its validity as readily as with adoption, which could add one more element of potential discrimination or friction, particularly for marginalized communities in conservatives areas.  

Second-Parent Adoption - Pros and Cons

The pros and cons of a Second-Parent Adoption are the opposite of a Judgment of Parentage. Adoption is a long and burdensome process, but has the reliable track record of certain protection.  

Pros 

• Strong protection in other jurisdictions: We have precedent that other states must respect adoptive parents as parents, and conservative states have already been forced to do so. The Supreme Court has stated that they must do so in the case V.L. v. E.L. in 2016 which confers Full Faith and Credit. 
• Adoption is widely understood by laypeople. 
• More recognized internationally: Our European LGBTQ+ attorney counterparts assure us that western European countries will honor a Judgment of Parentage as much as an adoption, and we expect that any countries that honor US court orders would honor them, but adoption is a world-wide concept that will be understood more readily by both lawyers and non-lawyers, and thus reduce friction. 

Cons 

• Complex and burdensome: A non-biological parent must go through the entire adoption process they would undergo with a child who was a stranger to them, which requires multiple court filings and can take over a year. 
• Emotionally difficult: The non-biological parent must provide personal information and be assessed by a social worker to determine if they are fit to parent their own child, including a home study, finger-printing, background checks, and sometimes recommendation letters about your fitness to be an adoptive parent. Many clients experience this as a highly demeaning process. 
• Expensive: The process requires an attorney and is likely to cost $5,000 or more.   

Can I do both?

Some families have wondered if they can start with a Judgment of Parentage now, and obtain a Second-Parent Adoption later. The law in this area is still developing, but it is unlikely that a judge would grant an adoption to someone who already has a court order proving they are a parent of the child.   

Families should carefully consider their options up front to ensure that they choose the path best suits their needs.  

Given these pros and cons, the decision between a Judgment of Parentage and Second-Parent Adoption will depend on your needs. If you frequently travel internationally or spend time in states hostile to LGBTQ+ rights, and want the peace of mind of the strongest possible protection, investing time and money in a Second-Parent Adoption may be the right choice. But if you are mainly based in New York and want a quick and easy way to establish your parentage without a time of legal limbo, a Judgment of Parentage could be a better option. One of our attorneys can help you talk through your priorities and come to the conclusion that’s right for your family.  

GET YOUR PAPERWORK IN ORDER and support your queer community with doing the same: Our sister nonprofit Chosen Family Law Center provides free Judgments of Parentage for free to low-income residents of New York. Your donation will provide desperately needed security to others at risk.