Second-Parent Adoption in New York: Protecting Same-Sex Parents’ Legal Rights

Since the Marriage Equality Act took effect in 2011 and the U.S. Supreme Court’s decision in Obergefell v. Hodges in 2015, same-sex marriages are valid and recognized everywhere in the country. New York also applies a “marital presumption” of parentage: a child born to a married couple is presumed to be the child of both spouses, regardless of gender.

The difficulty is that a presumption is rebuttable. It can be challenged in court, and a non-biological parent who relies on it alone may find their relationship to the child questioned — in a custody dispute, after a death, or when dealing with insurers, schools, or immigration authorities. Just as importantly, other states are not required to honor New York’s presumption the same way. A court judgment, by contrast, must be respected nationwide.

A second-parent adoption is a court proceeding that allows a person to adopt their partner’s or spouse’s child without the existing legal parent giving up any rights. At the end of the process, both individuals are recognized as the child’s legal parents by a court order.

New York has permitted this since the Court of Appeals decided Matter of Jacob, 86 N.Y.2d 651, in 1995 — a landmark ruling holding that the unmarried partner of a child’s biological parent, including a same-sex partner, may adopt that child under New York’s adoption statute (Domestic Relations Law Article 7). That decision predates marriage equality by two decades and remains the foundation for second-parent adoptions in this state today.

The key feature is the resulting order. An adoption is a final judgment of a court. Under the Full Faith and Credit Clause of the U.S. Constitution, every other state must recognize it. The Supreme Court reinforced this in V.L. v. E.L. in 2016, confirming that states cannot refuse to honor an out-of-state adoption by a same-sex parent.

In our experience, the families who most often benefit include:

• Married same-sex couples where only one spouse is the biological or birth parent, and the other wants a court order confirming their parentage.
• Couples who used a sperm or egg donor, or who conceived through assisted reproduction, where the non-genetic parent’s status should be secured.
• Unmarried partners raising a child together, where there is currently no legal tie between the child and the non-biological parent.
• Families who travel often, have ties to other states or countries, or anticipate relocating — situations where portability of the parental relationship matters most.

The second-parent adoption process in New York is generally orderly and, when uncontested, not adversarial. In the Buffalo and Williamsville area, these petitions are typically filed in Erie County Family Court or Surrogate’s Court. While every case is different, the steps usually include:

• Filing the petition. The adopting parent files an adoption petition along with supporting documents, including the child’s birth certificate, the parents’ marriage certificate (if applicable), and consents.
• A home study or investigation. New York requires a study in most adoptions, though courts can streamline or, in limited circumstances, waive certain requirements for a spouse adopting their partner’s child.
• Addressing any other parent or donor. If there is a known biological parent or donor with potential rights, those rights must be resolved — through consent or a court finding — before the adoption is finalized.
• The finalization hearing. A brief, usually positive court appearance where the judge reviews the file and signs the adoption order. Many families bring children and grandparents to celebrate the day.

Once the order is signed, the adopting parent has the full and permanent legal rights of any parent, and an amended birth certificate can be issued listing both parents.

New York’s Child-Parent Security Act (CPSA), effective February 15, 2021, created a faster path called a judgment of parentage for children conceived through assisted reproduction or surrogacy. Eligible intended parents can obtain a judgment before or shortly after birth establishing them as legal parents, and like an adoption, that judgment is entitled to full faith and credit across the country.

The CPSA is an excellent option when it applies, and we frequently help couples pursue it during the surrogacy or donor-conception process. But it is not available in every situation — for example, if your child was born before the law took effect, or conceived in a way the statute does not cover. In those cases, a second-parent adoption remains the reliable route. Deciding which path fits your family is exactly the kind of question to bring to a consultation.