There are many questions to consider when contemplating adoption, especially in regards to LGBTQ parents. With this podcast New Jersey family lawyer Bari Zell Weinberger discusses the topics of egg donors, insemination, and child custody, and how they apply to New Jersey law.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Bari Zell Weinberger, Certified Matrimonial Law Attorney
Bari Zell Weinberger is a renowned family law expert and the founder of Weinberger Divorce & Family Law Group, a family law firm with offices throughout New Jersey. She is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, a certification achieved by only 2% of the attorneys in New Jersey. Bari is also an experienced family law mediator, a published author, and a frequent media contributor on divorce and family law for both local and national audiences.
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Read the Transcript of this Podcast Below.
Why is it important for same-sex couples to consider adoption?
Families come in all shapes and sizes, and many same-sex couples are in the position to adopt children. In situations where the child is the biological or adopted child of only one partner or spouse, then adoption by the other spouse or partner can legally clarify their status and relationship as parents.
Parental status may entitle children to certain benefits such as health care coverage, inheritance rights, social security benefits, life insurance, pension payments, and veteran’s benefits. If parents end their relationship, having their legal status in place allows for rights to custody or parenting time, and responsibility for payment of child support.
What kind of adoption options are available in New Jersey?
For LGBTQ couples where one partner is already parent to a child, the other partner may be able to adopt the child through a process called “second-parent adoption.” This procedure is available for both same-sex or opposite-sex couples, where one partner is a natural parent or has already adopted a child as a single parent. It is desired for the other partner to gain legal status as a parent.
Second-parent adoptions can be carried out regardless of marital status. In situations where both partners or spouses wish to adopt a child, options in New Jersey for welcoming a child into your family include:
- Private adoption. Many private licensed adoption agencies in New Jersey are friendly to gay and lesbian individuals who wish to become parents either on their own or with a partner. The all-children, all-family initiative of the human rights campaign maintains a list of agencies that have met or are seeking to meet 10 benchmarks in LGBTQ cultural competency. With private agency adoption a child is generally placed in the home for six months before an adoption hearing is scheduled.
- Private placement adoption. In a direct adoption from birth parents, the adoptive parents must file a complaint for option within 45 days of receiving the child. The parental rights of the birth parents are generally not terminated until a preliminary hearing two or three months later.
- State agency adoption. The New Jersey office of adoption operations is within the Department of Children and Families, Child Protection and Permanency. The agency works to connect children from the state’s foster care and child welfare system with loving adoptive parents. As a state agency, DCS does not discriminate on the basis of sexual orientation.
What can families expect from the adoption process?
Requirements differ depending on the type of process. Second-parent adoptions are generally simpler with fewer requirements. Be prepared for some or all of the following: first, criminal and child abuse background checks; second, disclosure of financial, medical, and employment information; third, personal references; fourth, home studies and home visits.
What about international adoption and LGBTQ families?
For any person or couple, international adoption can be expensive and more complicated than adopting a child within the United States. Depending upon the country, it may also be more challenging for single, gay or lesbian parents, or same-sex couples, to adopt. Do your research carefully and work with a vetted adoption agency that is supportive of LGBTQ families.
Some couples have found it easier for one partner to adopt a child as a single parent and for the partner to complete a second-parent adoption in the United States. Definitely consult with an attorney who is familiar with the procedures and any applicable restrictions in your country of interest.
Same-sex couples may use reproductive assistance in their process of starting or growing their families. For example, a lesbian couple may use a sperm donor with one spouse carrying the child. In these kinds of situations, does the other spouse need to adopt the child?
When it comes to sperm donors and parentage statute, the applicable New Jersey statute was actually written in gendered language. Section 9:17-44 of the Parentage Statute prevents that a husband will be the legal father of a child if, with both spouse’s written consent, his wife is artificially inseminated with donated semen under physician supervision.
For today’s families, however, the courts have now interpreted this section to also apply to same-sex couples. When a woman gives birth to a child in New Jersey and that woman is in a state-recognized relationship such as a marriage or a civil union or domestic partnership, her spouse or partner is presumed to be the child’s second parent and her name will be added to the child’s birth certificate.
The second parent will legally be considered a natural parent. It is important to note that this statute applies only when the insemination process is carried out under the direct supervision of a physician. The law also protects the donor from having any rights or duties stemming from the conception of the child.
In situations where partners are cohabiting without a legally formalized relationship, second-parent adoption may be advisable and required for establishing parentage.
Does a sperm donor ever have parental rights under New Jersey law?
Some couples prefer to go through the insemination process at home rather than in a doctor’s office, usually for financial or privacy reasons. This is sometimes referred to as “alternative insemination.” Alternative medically unsupervised donor insemination is legally risky because the law that allows a donor to relinquish rights applies only when the process is carried out under physician supervision.
In these situations, couples put themselves at risk for the sperm donor to later claim parental rights, including child custody. The sperm donor, too, could be at risk for having a claim for child support made against them.
Very recently a case made the news in New Jersey which involved a lesbian couple with two children conceived through alternative insemination via two different sperm donors. Both donors sued the couple seeking parenting time and the courts agreed to it. The couple has appealed and continues to be locked in a battle over this issue.
If you are considering using a sperm donor, consider that the added cost of seeking physician assistance for artificial insemination may be less expensive in the long run than the court battles you can potentially experience over parentage issues.
Two male spouses may decide to have a child using an egg donor and surrogate gestational carrier. How is parentage established in these families?
New Jersey’s famous Baby M case involving a paid surrogate who refused to relinquish rights to the child after birth has profoundly impacted how surrogacy operates in New Jersey. For same-sex male couples in which one man is genetically related to the child, the non-genetically related partner must pursue second-parent adoption to ensure legal parent status.
If neither partner is genetically related to the child, if the couple used both donor sperm and a donor egg, for example, then generally both parents will need to go through the adoption process.
Careful consideration to legal planning is vital for a successful surrogacy relationship. Above all, be sure that both you and your intended surrogate have adequate and separate legal counsel to ensure contracts are fair and enforceable.
What happens to children if same-sex partners or spouses break up? Does the law favor biological parents when it comes to custody and parenting time?
Parenting laws in New Jersey are gender neutral. They do not favor parents based on whether they are biological or adoptive parents. The courts operate under the general premise that is in a child’s best interest to have close healthy relationships with both their parents whenever possible, and will look to custody and parenting time arrangements to provide this to the children.
In some families with children from previous relationships, a new spouse can take on a direct role of caring for the children and be viewed by the law as a psychological parent. How do you know if you’re a psychological parent and what rights, if any, does that give you?
If the partner has not adopted a non-biological child, but has essentially functioned as the parent to the child, they can make a case in the courts for being what we call a “psychological parent.” The courts look at certain factors in determining this, including did the child’s biological parent encourage and foster the relationship between you and the child?
For example, was it encouraged that you were called “Mom” or “Dad”? Did you assume the role of parent in the child’s life? Did he or she financially support the child? Did he or she participate in the child’s education, help with the homework, bring the child to doctor’s appointments? Did the child live in the same house as you? Was your relationship with the child of significant length?
If the judge agrees that you are, in fact, a psychological parent, you then have the right to file for child custody, parenting time, or child support.
Where can LGBTQ couples go to learn more about the issues that we discussed today?
I encourage listeners to download our free guide, “LGBTQ Families. Becoming a Family,” for details on everything that we’ve discussed today, plus more on adoption and parentage. Please find it at wlg.com/downloads.
What special help does your firm offer to individuals and couples interested in pursuing adoption or learning more about protecting their parental rights?
If you’re seeking a trusted family law attorney with experience in matters including adoption, surrogacy contracts, custody arrangements, and related issues, please contact us to set up your free consultation.