Co-parent Adoption: A Guide For Same-sex Couples In Massachusetts STAFF PICK

Christopher W. Vaughn-Martel

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Adoption Lawyer

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1

What is Co-Parent Adoption?

Generally speaking, adoption refers to the process of establishing a legal and permanent parent-child relationship where none existed. A typical example is the domestic or international adoption of a child by an unrelated individual or couple. Adoption terminates the parental rights of an adoptive child's parents, and creates new and permanent parental rights in the adoptive individual or couple. A 'co-parent adoption' (sometimes called a 'second-parent' or 'step-parent adoption') is the joint adoption of a child by one person who is already the biological or legal parent of the child together with another person who is not. Co-parent adoption creates a permanent and legal relationship between a child and both adoptive parents, where previously the child had only been related to one of adoptive parents. A classic example is the child adopted by a step-parent who wishes to legally establish his or her parental rights.

2

Who Can Obtain a Co-Parent Adoption?

Co-parent adoptions are frequently used to establish a parent-child relationship in the partner or spouse of a person who already has a child or children. For example, a woman with two children from a previous relationship may bring a co-parent adoption together with her new spouse in order to legally establish her spouse's parental rights. In another example, a same-sex couple who conceived via alternative insemination (sperm donor) would bring a co-parent adoption and petition the court to establish a parent-child relationship in the non-birth parent. In Massachusetts, adoption by same-sex couples is permitted and widely accepted (even celebrated) by the courts. Adoption is also permitted regardless of whether the petitioners are married. Essentially, the petitioners in a co-parent adoption are demonstrating to the court that the unrelated party is a true parent in every sense, and that the parent-child relationship should be established legally and permanently.

3

What Steps Are Involved In Petitioning The Court For Co-Parent Adoption?

A co-parent adoption is commenced by filing a petition and supporting paperwork in the probate & family court. There are no filing fees, and filing can be done by mail or by hand-delivery of the paperwork. If the petitioners are entitled to waive the Commonwealth's adoption requirements, motions should be filed with the Court. Once submitted to the Court, the adoption clerk will carefully scrutinize the petition. The Court may request a hearing before a judge prior to allowing any motions. The Court may also request additional information or affidavits, and may independently request CORI reports from the criminal offender registry. Once all paperwork is approved, and all motions have been allowed or denied, the Court will schedule a finalization hearing. Ideally, this is the first and only time the petitioners will have to attend court, and the hearing is a happy and celebratory event. Friends and family are encouraged to attend, and the proceeding is closed to the public.

4

How Much Does Co-Parent Adoption Cost In Massachusetts?

Court Fees: Unlike most legal proceedings, there are no court filing fees for adoption. Certified Records: Certified copies of birth, marriage, and criminal background records each cost between $20.00 - $30.00. Your attorney can obtain these records for you, or you can request them directly from the appropriate state agency. Legal Fees: Legal representation, including preparation of all paperwork, filing and presentation of all motions, and attendance at your final adoption hearing, typically costs between $1,500.00 and $3,000.00, and most attorneys will offer a simple flat rate for all services. Other Expenses: If the petitioners are unable to waive the more invasive and cumbersome requirements of state involvement, adoption agency participation, notice-by-publication, and a home study, the couple can expect significant delays and several thousands of dollars in additional expenses. Because money is tight for new parents, our firm offers flexible payment plans!

5

Both Parents Are Listed On The Birth Certificate, Do We Still Need To Adopt?

The answer for same-sex couples is YES. In Massachusetts, a child born to two married persons is presumed to be the legal child of both parents (including parents who use alternative insemination and a sperm donor to become pregnant). Most hospitals in Massachusetts will list married same-sex spouses as "co-parents" on a child's birth certificate. Same-sex couples should adopt their child, even if both of parents' names appear on the child's birth certificate, because: 1. Marriage entitles you to a presumption of parenthood only, and there is nothing stopping a known donor or even an unknown donor from attempting to assert parentage over his child - adoption will permanently terminate his rights; 2. Other states may refuse to honor same-sex parenthood, especially those states where same-sex marriage or adoption is prohibited or unrecognized; Adoption creates a permanent and irrevocable court decree, and is recognized by EVERY state in the nation.

6

Do I Need An Attorney To File An Adoption Petition?

While not required, hiring an experienced adoption attorney can make the process of gathering and organizing adoption paperwork, preparing and filing important motions, and coordinating with court staff more efficient, more enjoyable, and less stressful for the adopting family. In addition, an attorney can assist you in the event that problems arise during the course of your adoption, such as an uncooperative donor, difficulty obtaining certain important records and paperwork, an unfavorable criminal background report, or other situations that require individual attention and advocacy. Our firm assists couples in family creation - by adoption, donor insemination, and anonymous egg donation - throughout Massachusetts. We work with families one-on-one to ensure that their experience with the courts and legal system is as enjoyable, friendly, and relaxing as possible.

7

We Used A Sperm Donor. Do We Need To Terminate His Rights?

The answer is yes. In order to finalize the adoption, the courts will require that notice of the proceedings be sent to the child's biological 'father' or any potential 'fathers'. The purpose of notifying the biological donor is to allow them an opportunity to object to the adoption and to assert their rights as parent. If a known donor is used, he should be asked to carefully prepare and submit an "Adoption Surrender" form, acknowledging his understanding of the proceedings and his intention to permanently give up any and all parental rights in favor of the new adoptive parent. If an anonymous donor is used, a motion should be prepared and filed with the court requesting permission to waive the notice requirement, since attempting to notify an unknown donor would be fruitless, cause undue expense, and delay the adoption. Assuming all necessary documentation is in order, this motion is typically allowed.

8

What Paperwork Is Required In Order To Complete A Co-Parent Adoption?

Every co-parent adoption petition will require some or all of the following documentation. An experienced adoption attorney can determine what is required for your unique family situation, and ensure that all paperwork is prepared properly to ensure a quick and seamless court proceeding. 1. Joint Petition for Adoption; 2. Affidavits of Petitioners; 3. Affidavits Disclosing Care and Custody Proceedings; 4. Criminal background checks (CORI); 5. Certification of notice to the Federal & Central Registers of Missing Children; 6. Marriage Certificate, for married petitioners; 7. Birth Certificate; 8. Motion to Waive DCF Involvement and Home Study Requirement with supporting documents; 9. Motion to Waive 6 Month Residency Requirement and supporting documents; 10. Motion to Waive Notice Requirements and supporting documents; 11. Motion for the Return of Original Birth Records, in the case of international birth; and 12. Adoption Surrender of Biological Parent.

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Is Co-Parent Adoption Any Easier Since One Of Us Is Already Related To The Child?

The answer is yes. Co-parent adoption can be a much easier, quicker, and cheaper process than a typical adoption. With the help of your attorney, if you have one, motions can be filed with the court that allow co-parent adoption petitioners to waive some of the most expensive and invasive adoption requirements, including: 1. The requirement that adoption petitioners provide notice to the biological parents or potential biological parents of the adoptive child; 2. The requirement that the adoptive child reside in the adoptive home for a (waiting) period of six months prior to adoption finalization; and 3. The requirement that the Department of Children and Families or other licensed agency conduct a home study and provide the court with a written report in favor of adoption. Avoiding these requirements can save co-parent adoption petitioners thousands and thousands of dollars, and avoid unnecessary delays and invasion of their privacy.

10

How Long Does The Co-Parent Adoption Process Take?

Most of the co-parent adoption we handle are wrapped up in a matter of six months or less. The preferred course of action is to contact and meet with an adoption attorney a month or two prior to birth of the child. It is much easier to establish a relationship with your attorney, get to his or her office, and focus on paperwork, BEFORE the child arrives! Your attorney can have almost all of the paperwork completed prior to birth, with the hope of filing for adoption as soon after birth as possible. If all motions are allowed by the Court, it should be possible to have your adoption finalized by the Court as soon as three months after birth. Once your adoption is finalized, an adoption decree will be issued by the Court, and any amended birth certificates will be prepared without delay. There is no waiting period, and adoptions are effective immediately upon finalization by the judge.

Additional Resources

VAUGHN-MARTEL LAW

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