by Elizabeth A. Hershman-Greven, Attorney, McKinley Irvin, PLLC

What Is It?
A second parent adoption allows a same-sex parent to adopt his or her partner's biological or adopted child without terminating the latter's parental status. Washington does not specifically authorize second parent adoptions by statute, although they are frequently granted by the trial courts.

Second parent adoptions are regularly utilized by lesbian couples who conceive children through assisted reproduction. The parent who gives birth to the child is considered the child's legal parent. Unless her partner adopts the child, she will not be considered a legal parent and will not enjoy the same rights and responsibilities towards the child. Second parent adoptions are also used when a same-sex partner previously conceived a child through artificial insemination, or adopted a child as a single man or woman.

Second parent adoptions are not possible where a same-sex partner has custody of a child from a previous heterosexual relationship, unless the former opposite-sex partner is willing to give up his or her parental rights. Second parent adoptions may also be problematic for lesbian couples who utilize a known sperm donor without the assistance of a sperm bank, or by otherwise entering into a formalized donor agreement. These couples should enter into a written donor agreement whereby the donor agrees that he is not the child's legal parent. The details of such agreements exceed the scope of this article.

Second parent adoptions should be distinguished from joint adoptions, which allow both same-sex parents to adopt a child with no pre-existing biological or adoptive relationship to either party.

Why Do We Need It?
The Washington Supreme Court recently held that a woman had standing to seek custody of her former same-sex partner's biological child under the doctrine of de facto parentage. In re the Parentage of L.B., 155 Wn.2d 679, cert. denied sub nom, Britain v. Carvin, 126 S.Ct 2021 (2006). However, to prevail under this doctrine, a non-biological parent must first be found to be a "de facto parent" by the court. Even if successful, it is unclear whether he or she will be accorded the full set of rights and responsibilities of a legal parent. Currently, the only way to fully protect a parent-child relationship in this context is through a second parent adoption.

In addition, second parent adoptions provide children being raised in same-sex families numerous financial and legal protections not otherwise afford to them including, but not limited to, the rights to:

· Inherit from the "second parent;"
· Receive damages should the "second parent" be wrongfully injured or killed;
· Receive worker's compensation benefits based on the "second parent's" work-related injury;
· Receive social security benefits should the "second parent" become disabled;
· Receive health insurance benefits from the "second parent's" employer;
· Have visitation with the "second parent" in the event of parental separation; and
· Receive child support from the "second parent."

Second parent adoptions also protect the integrity of the family should the child's biological parent die or become incapacitated. In the absence of an adoption, the child could be removed from the non-biological parent's care to be placed with relatives of the biological parent or in foster care. This may be true even if the biological parent has designated the other partner as the child's guardian in his or her will, as such designations can be successfully challenged in court.

Moreover, second parent adoptions are critical should the child become seriously ill. A "second parent" can take parental leave under the Family and Medical Leave Act, can consent to emergency medical treatment for the child, and cannot be prohibited from visiting the child in a hospital or medical facility.

How Do You Get Started?
MI attorneys have extensive experience in handling all aspects of second parent adoptions, including preparing petitions, arranging required post-placement reports, and representing clients at final hearings. We are sensitive to the unique issues presented by same-sex families and look forward to helping our clients secure their family's future, both for themselves and for their children. Contact us today.

For more information about McKinley Irvin, or to contact us about your case, click here.