Pride Month: Adoptions
June 25, 2020
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
Adoption by Same-Sex Couples
The Uniform Parentage Act (“UPA”) establishes the parent-child relationship, or the legal relationship between a child and the child’s natural or adoptive parents, between a child and the child’s co-parents, or between the child and the child’s intended parents pursuant to a gestational carrier agreement as to what rights, privileges, duties, and obligations these people have relative to each other.
So, what does that mean?
For the LGBTQ+ community, establishing parentage of a child can be much more difficult than parents who conceive and birth their child. It is not as simple as putting your names on the child’s birth certificate. In fact, in New Jersey, a birth certificate is not proof of legal parentage at all. A person who gives birth to a child establishes legal parentage by giving birth. However, without taking some action, there is no way to establish legal paternity. One must establish paternity through DNA testing, legally acknowledging paternity, or through the adoption process.
For couples who are married or in civil unions, there arises a presumption of paternity under N.J.S.A. 9:17-43. Currently, New Jersey law utilizes gendered definitions for this presumption, and enumerates the presumptions available to “a man.” Specifically, a man is presumed to be the biological father of a child if he and the child’s biological mother are or have been married to each other, and the child is born during the marriage or within 300 days after the marriage is terminated. Unfortunately, this specific presumption did not extend to same-sex individuals until April 1, 2020.
As of April 1, 2020, the New Jersey Legislature expanded this presumption to include any married persons or persons in a civil union with a birth mother of the child. The Legislature, through N.J.S.A. 9:17-69 acknowledged that parenthood is possible for many couples that would not otherwise be able to have their own child through assisted reproduction procedures. As such, adoption by same-sex couples, opposite-sex couples dealing with infertility, and transgender and non-binary individuals, is possible, and society recognizes the same.
Great! So how do I know if I qualify?
First, you must be in a valid marriage or civil union with the natural or legal parent by the time your child is born. Also, you must be listed as a parent on your child’s birth certificate. There also must not be any other legal parents besides your spouse or civil union partner. You also must petition jointly with the natural or legal parent. Keep in mind, though, that this law does not apply to those using a gestational carrier.
Do I still have to file a legal petition? That sounds like a lot of work…
Due to several hurdles including the high cost of filing for adoption, background checks and fingerprinting, home studies, and court appearances, many non-genetic parents have either stalled or failed to adopt their child(ren) altogether. However, by not adopting your non-genetic child, the potential for problems may arise. For example, without legal parentage, other jurisdictions may not recognize you as a legal parent. As long as you legally adopt your child in New Jersey, all other jurisdictions in the United States must give the judgment full faith and credit recognition. However, if you are not recognized as a legal parent, you may have difficulty in obtaining governmental benefits entitled to a parent, personal injury or wrongful death awards, or even harder time trying to craft your Last Will and Testament.
You’ve convinced me! How do I do this?
You will have to file a complaint about a judgment of adoption with the Family Part of the Superior Court in your county of residence. To the complaint, you must attach three things: 1) proof of your marriage or civil union, 2) the original birth certificate of your child issued by the State Registrar of Vital Statistics, and 3) a written declaration signed by you and your partner describes how the child was conceived and identifies any other involved parties. For the written declaration, you must be very detailed.
Done. Now what?
Now, you wait. If the court is satisfied that there are no other persons who may have existing parental rights to your child, a judgment of adoption will be issued. If the court finds that there may be another person with existing parental rights to your child, a hearing must be conducted.
Adoption by same-sex couples implies different aspects to be taken into consideration but if you need help, you can always contact our New Jersey family law attorneys.
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