2.17 Why Second-Parent Adoption?

Second-parent adoption for LGBTQ families is many things - confirmation, injustice, expensive, and a celebration. What is it, why do lawyers still recommend LGBTQ parents do it, and how does it feel for our families?

Meet our Guests:

Elizabeth Castellana is a second gen queer mom who has two dads and was raised in a mixed race family formed through biology and adoption.  She works as an administrator in Cambridge Public Schools and enjoys the constant work in social justice and equity that provides.  Her background as an Outward Bound instructor and working with COLAGE programs at various levels informs her perspective on social justice education as well as on parenting.

Joyce Kauffman is a graduate of the University of Massachusetts/Amherst (B.S. in Child Development), Lesley University (M.Ed. in Counseling Psychology), and Northeastern University Law School (J.D.). Attorney Kauffman has practiced family law for the past twenty-five years in the areas of divorce, guardianship, adoption, mediation, and reproductive technology. Since the legalization of same-sex marriage in the Goodridge decision, Attorney Kauffman has represented numerous individuals in the preparation of prenuptial and postnuptial agreements as well as in same-sex divorces. She is a trained mediator, collaborative lawyer, coach, and conciliator. 

Episode Transcription

Emily M: Welcome to Outspoken Voices, a podcast by and for lesbian, gay, bisexual, transgender, and queer parents, people with LGBTQ parents, future parents, and everyone else who is part of our family journeys. So today we're talking about second parent adoptions and step-parent adoptions. What is it? Why does it matter and how frustrating it is that we still have to do this. My family went through a second parent adoption process when I was 10 and we went before the judge just after my 11th birthday. Nothing felt different after Nancy adopted me, our family continued just as it had. We did feel that we had this added security knowing that in the case of catastrophe we were all covered. Of course my family's experience is different because this was in Massachusetts in 2001, so pre-marriage equality even within the state. The legal landscape may be different today, but second-parent adoption is still very relevant. With me to discuss the impact of and the necessity of second parent and step parent adoption is Joyce Kauffman and Elizabeth Castellana. To start us off, Elizabeth, would you just talk about who is in your own family and how your own family was formed?

Elizabeth C: Sure. Well, there are sort of two parts to that. The family I grew up in, I have two dads, but I was born into a hetero marriage, to white parents who had already adopted my brother, who is Colombian. So certainly part of my experience around adoption is having grown up in a family that was formed both through having biological children as well as adopted children. And that felt like a very sacred thing. I always grew up feeling like my parents had gone above and beyond to become parents to my brother and I was sort of this incidental child. So I think having grown up in that family gave me a different impression of adoption as a very sacred and powerful way to step into parenthood. Fast forward 35 years and my daughter Harriet was born, and I'm married to a woman, and we knew from early on that we were absolutely going to pursue a second parent adoption to secure the legal relationship between my wife and my daughter. So that's us. And then our next child will be here soon and we will also be pursuing a second parent adoption of that child as well.

Joyce K: Well, I am a little bit older than you are Elizabeth. I have a 33 year old daughter who was born to me when I was a single lesbian in 1980. She was born 1984 and she has a known donor dad who has been involved in her life throughout and shortly after she was born I got involved with a woman and we lived together for several years. That woman became a parent to my daughter as well. But of course this is in the eighties and there was no second parent adoption. There was certainly no gay marriage and there was no way to establish a legal relationship between my daughter and her other mom. We broke up when my daughter was young, but we continued to co-parent together. By the time my daughter was a teenager, adult co-parent adoption had become legal in Massachusetts. I actually worked on that case that brought co-parent adoption to Massachusetts. We were able to do a three parent adoption so that my daughter has three legal parents, myself, her father and her other mom.

Emily M: Wow. So we've already mentioned second parent and step parent adoption. So Joyce, can you just give the, like the quick rundown of what is each of those things are. And then you also mentioned co-parent adoption.

Joyce K: Well co-parent and second parent adoption are basically the same thing. In different states they're referred to as different types of adoptions, but basically a co-parent or a second parent adoption is when a non-legal parent and legal parent together adopt the same child. In some states it's a process where the second parent literally is the only person petitioning to adopt, which is why it's called a second parent adoption. The first parent doesn't give up any rights, but does not have to actually adopt her own child. I'm in Massachusetts, the only way to adopt is for both parents to jointly adopt the child, so the person who already is the biological or legal parent adopts the child with her partner, so that at the end of the day, both of them are legal parents.

Joyce K: A step parent adoption is almost identical process, but step parent means that your parents are married. Um, I don't like to refer to our adoptions as step parent adoptions because we already are the parents of our children. We're not step parents. We're not, it's not that classic situation where somebody is a remarries a person who comes into a child's life at an older age and then adopts that person. That would be as true step parent adoption. I'm talking and of course those situations do exist among our families for sure. But in the classic situation, we're talking about a married couple who bring a child into the world together and then do an adoption.

Joyce K: I like to call them confirmatory adoptions because they confirm what already is the reality. So here in Massachusetts when a married couple has a child, both parents are on the birth certificate, but the birth certificate isn't enough, which is why you have to do an adoption. Everybody asked me, do we have to do this? Why do we have to do this? Where are we're married? We're both on the birth certificate. You know, we shouldn't have to do this. And I agree we shouldn't have to adopt our own children, but if you don't, you don't at your own peril because not every state, and certainly not every other country is going to recognize a birth certificate as a legal judgment of parentage.

Joyce K: The reason married couples both are on the birth certificate is because there's a presumption that when a married woman gives birth, the spouse is also a parent. It's a presumption in some states but, for example, that presumption can be rebutted by evidence that someone else's the biological parent. So if you used a known donor and you're in another state, somebody could challenge. So the only way to definitively determine that someone is a legal parent is to do an adoption. You must have a judgment of the court because the US Constitution says that judgments of adoption or other kinds of judgments have to be recognized in other states. So for example, there was recently a case that went all the way up to the Supreme Court on this issue where an Alabama court refused to recognize two adoptions done in Georgia by a lesbian couple and the non-biological mom was going to lose all of her parental rights. It went up to the Supreme Court and the Supreme Court said you can't do that. You cannot refuse to respect these judgments of adoption. So it's quite clear that a judgment is going to be given full and credit in other jurisdictions. A birth certificate is not necessarily going to get that treatment in many states within the United States and certainly in other countries, but it also, it gets so complicated in emotional too because usually the arguments to do this have to do with those like worst case scenarios.

Emily M: So Elizabeth, what was your experience of like getting ready to do this? Knowing that part of the motivation is for these terrible things that feel so counter to that, that moment and that joyful experience for your family.

Elizabeth C: Yeah. I think, you know, for us like thinking about it as in case we break up did feel really uncomfortable, especially as we were just becoming a family. One factor that seems to come up a lot when we talk to our other friends who are kind of somewhere in the process of considering second parent adoption is - which side of the family is more supportive. These unknowns bring out things that we don't see in each other because we don't expect them. So just knowing that anything is possible and anything could happen, it was just a given for us that this was something we were going to do. It does, it feels icky and didn't feel good. But I think the language that I use to describe it was that it did feel like an injustice because it's a difference in how we're looked at under the law, as a same sex family. But I didn't see it as an indignity. I think that just comes from my own background of growing up in a family that was formed in part through adoption and feeling like actually this was a really dignified day for us to stand in front of a judge together as two parents and declare intentions to care for our child together and to be recognized and validated by the court that way.

Elizabeth C: It did feel dignified. It felt like a proud day for us. But clearly there was injustice embedded in all of that. My other outlook on it is that clearly this institution isn't built for queer families. But I do believe that we can kind of 'queer' institutions by participating in them. And I heard Brittany Packnett say brilliantly, "Don't volunteer for your own disenfranchisement." And that was sort of where I felt like, yeah, this does feel like it's not meant for us, but if we don't participate in it, then we're volunteering to be disenfranchised from it. And by engaging in it, I think there's some claiming of power.

Joyce K: I want to provide a little bit of a historical context because the first co-parent adoption case in Massachusetts was adoption of Tammy and before that case there was literally, it was impossible to establish a legal relationship between a non-biological parent and child. Impossible. So millions of children were raised by one legal parent and one not legal parent who basically could be disenfranchised at a moment's notice by institutions or by the biological mother. The law has changed over the decades that I've been practicing, you know, in wonderful ways. But it's important to remember that there was a time when adoption wasn't even possible. And when it became possible it allowed thousands of gay families in Massachusetts to establish legal parental relationships. And it was incredibly joyous. It was revolutionary. And what year was that, 1993? Wow. So it isn't that long ago.

Joyce K: And so people were very grateful to be able to establish parentage and then you had this complete flip when marriage became legal and we're supposed to get all the benefits of marriage, one of which is to be named on as you child's parent on the birth certificate. And then people began to resent, why do I have to do this? Why do I have to adopt my own child? And as I said before, I get that, I totally get that, but at the same time we should be very grateful that we can. Mostly, I think about it from a child's perspective, you know, I know for my daughter it was immensely important that she have a legal relationship with her other mom and was very important to me that, that happened as well. And it was an incredible experience to make that happen for me personally. I represented us and it was just amazing. I think it's important to keep it in perspective.

Emily M: For my family, when I was born, my mom had a partner, and it was pre-1993, so second-parent adoption was not an option. When my mom and her partner broke up and then she met Nancy. As I said like, Nancy was parenting me for six years by the time she adopted me and it was so exciting. For Nancy, she didn't think she could be parent and have kids and so she just never thought about having kids. And all of a sudden she fell in love with a woman who had a kid and dove headfirst into parenthood. And so to legally have a daughter, then at that point in her life was so joyous, just as you said, because she never thought it would be possible. We were still worried that we would get push back from the judge. And the judge, it ended up, thought it was fantastic. This was family court.

Joyce K: One thing that people should know about Massachusetts is that the court now allows confirmatory adoptions. That is adoptions by married gay couples, to be done administratively. Meaning you don't have to go to court, the court will just allow them, the judge will review the file, allow the adoption and they'll send you the paperwork so that, that takes some of the sting out of it, you know, because it is hard when you have a baby to make your way to court at 8:30 in the morning in one piece.

Emily M: Are there many other states that have that? I mean, because you also hear that people talking about like home visits that like social workers get involved. So is it really just state to state?

Joyce K: Family law and adoption law varies in every single state. I'm not aware of other states that have allowed administrative adoptions, although there may be some and there are some states where you have to do a home study, you have to have an agency involved or a social worker involved to do a home study in Massachusetts. You have to request a waiver of the home study and they're routinely waived where one of you is already the biological parent of the child. So that's usually not an issue. There are some other things you have to ask the court to waive as well. There's a six month residency requirement if you think that the adoption statute was primarily written for traditional adoption, it makes sense to have like some kind of waiting period to make sure everything is working out.

Joyce K: But obviously for our families that doesn't make sense. But you do have to ask the court to waive and you also have to deal with notice to any other parent. So obviously for lesbian couples having children, there's a sperm donor, whether it's an unknown, anonymous donor or a known donor, and you have to seek a waiver of notice to that other person. There is case law in Massachusetts now that says that a man who donates to a married lesbian couple is not entitled to notice he's not a father, so that's good. But I do want to underscore not everybody gets married and if you're an unmarried lesbian couple having children, you really must do an adoption. And if you're using a known donor, you really should consult with an attorney and that donor is going to have to surrender his rights to the child in order for you to do the adoption.

Joyce K: So it's not quite as straightforward as it is for married couples. There is now a possibility since the Partanen case, which involved an unmarried lesbian couple who broke up and biological mother tried to deny the non-bio biological mother's parental rights and the court here in Massachusetts determined that this non biological mother could establish yourself as a parent under our paternity slash maternity statute, which is a fantastic thing. And it may become possible for unmarried couples to establish parentage at birth by signing jointly signing a voluntary acknowledgement of parentage that hasn't happened yet. But because of that case that may come to pass, which would be a fantastic thing because then they too would have both their names on a birth certificate. But still I would want them to do an adoption.

Emily M: We should say that we're talking a lot about married couples where one of the parents is carrying the child and giving birth. Which is different than the experience of parents going through surrogacy route going through a foster care to adoption or private adoption.

Joyce K: Exactly. Yeah, I mean, gestational surrogacy is pretty common. A lot of gay men who want to have biological children use gestational surrogates to do that and they too have to go through legal procedures to establish parentage. It's a much more complicated process. Adoption is a walk in the park compared to a parentage action for a gay couple doing gestational surrogacy, but it is possible in Massachusetts and it happens quite frequently and it's a good thing.

Emily M: So all of our families have gone through the second parent adoption or a process or experience. My family had the framed photos of us with the judge. It was something that we wanted to remember and we wanted to celebrate. Did your families do anything beyond taking photos? Did you try to celebrate or a member of the day in any ways?

Joyce K: Well, my daughter was 18 when we did the adoption, so, she came home from college to attend the finalization and I think we went out to celebrate. It was a very emotional moment. I mean there was not a dry eye in the house. I was very emotional and, Becca's other mom, Marcy was also, you know, it was, it was a big moment. But we didn't, we didn't make a bigger deal out of it.

Elizabeth C: Yeah, it was really bittersweet for us. My friend did our adoption for us and we had planned to get together on election night and watch the results come in to celebrate. That was the night that we signed all the adoption paperwork to submit to the courts. And it ended up being just this kind of devastating night of realizing like weren't obviously, we're not celebrating. And on top of that, suddenly this adoption feels really crucial. It was a joyful day for us, but it felt like it had this kind of ominous meaning behind it because we did feel vulnerable and threatened and that this was something we had to do with urgency in a way we hadn't anticipated. But we, one of the things that felt really good about it was we went with our attorney and very good friend and my dads came as well.

Joyce K: I wanted to say one other thing about the judges. Many judges have commented to my clients saying, you know, I'm sorry you have to do this. I think a lot of judges really understand like you shouldn't have to, you shouldn't have to do this, but as I said earlier, it's really such a relief that we can you.

Elizabeth C: I think we experienced such compassion and support from the judge and the clerk, the clerk was taking pictures. The judge actually gave my like eight or nine month old daughter the pen. So she could sign the document as well, which I loved because it is about her and it is her adoption, not ours, you know, and then he gave her the gavel and took pictures of her at the bench with, with everyone behind her. So it was definitely a day that we felt, you know, supported and seen as a family. So again, like not an indignity by any stretch, but definitely, you know, there was that piece injustice in there and also just the sense of like, okay, we have to do this because now we really are vulnerable in a new way that we hadn't anticipated.

Emily M: One thing I wanted to talk about too was the barriers to this that can exist. Financial barriers, social access barriers, even sometimes the ways that people who are married or not married. A family friend was our lawyer, Joyce, you represented your own family and Elizabeth you mentioned another family friend. And so what are some of those barriers? What does that like for families?

Joyce K: Yeah. Well I do think that, you know, it can be a financial burden. I mean, you can represent yourself in an adoption. There are some things you should know before you do that because if you know, for example, if you don't ask the court to waive a home study, they're going to order a home study and that can cost $1,500 -$2,000. So you don't want to have to do that. That said, I mean, if you are someone who can fill out a whole bunch of forms and isn't intimidated by that process, certainly something that you can do on your own, you just have to, you know, understand that there are some things that an adoption clerk at the court can't instruct. If they can't give you legal advice, they can't tell you what to do. They can give you the forms and then you're on your own. Um, and if people want to do it on their own, that's, that's fine. It's not that expensive, but it is prohibitive for low income families.

Elizabeth C: I will say for us, we attempted to do the paperwork on our own and we found that the clerk of the court to be like really helpful and accessible and she was like, call me back if you have any questions any time. But I think for us, it felt very loaded and we kept not doing it and so then our friend just said, you know what, I'm going to do this for you pro bono, because I want you to get it done. And so she volunteered and I think while we are, you know, very comfortable, it cost us $10,000 to conceive our daughter right around the time that we were closing on our home, we found out that our daughter's donor was no longer going to be donating to the sperm bank. And so if we wanted to have a biological sibling using the same donor, we had to buy more vials right then and there. And so we ended up putting down a little bit less of a down payment in order to be able to have a down payment on a sibling instead.

Elizabeth C: So there are all these sort of things that queer families have to think through and that were an extra burden, all of which we confronted because we had the privilege to do so. But by the time, like the end of the year had come around and we were starting to then pay for daycare, it just felt like attorney's fees was just something didn't have. So we were incredibly fortunate that our friend had offered to do it for us pro bono. It felt awkward being people who are doing fine to accept that kind of help when there are so many people who need it more. And I still feel uneasy about that. But I don't know how we would have gotten it done without that help.

Joyce K: Well, I also think that's why I always recommend to people that they come see me about their adoptions when they're pregnant. Because once you have a baby, as you know, I mean your life is not your own anymore and it becomes impossible - filling out a form can be like just way beyond your capacity on any given day.

Emily M: There's a lot of talk of biology, being the biological parent, and who is the biological parent when you're filling out some of those forms, is that different or what happens when there's reciprocal IVF? So when a fetus is conceived using a sperm donor and then the eggs from the other, from the non-gestational parent.

Joyce K: Well, I'm generally, the way I approach it and I think most people do, is that the woman who gives birth is identified as the mother because legally the woman who gives birth is the mother. But I always acknowledge that fact of the reciprocal donation, reciprocal IVF in the pleadings.

Emily M: Seems to me like these forms and these processes and the court have not been keeping up, not only with societally where our families are, but technology.

Joyce K: No, the law has not kept up with, um, you know, assisted reproductive technology law at all. But the, the artificial insemination statute is one sentence long. It basically says a child born to a married woman through artificial insemination with the consent of her spouses is the child of that woman and her spouse. Or husband, it doesn't even say spouse, it says husband. That's it. That's the only law about reproductive technology in all of Massachusetts.

Elizabeth C: What a powerful sentence.

Joyce K: Well, it is a powerful sentence because it only applies to married couples and doesn't apply to anybody else. It doesn't even apply to if a gay man has a biological child through surrogacy, that statute is useless to him. So it's so interesting that the statute does apply, even though it says husband, it does apply to wives because after the Goodrich case, the marriage case, everything in Massachusetts law refers to husbands or wives equivalent deem the equivalent.

Emily M: Do you have any final advice or thoughts for anybody listening?

Joyce K: Our community has to work much harder at creating than anybody else in our society and that is unfortunate, but it is the way it is. But at some point in the not too distant future, I think that the laws will catch up with our realities and reproductive technology realities and hopefully make all of this a lot simpler for people. But right now it isn't and I think that we owe it to ourselves and especially to our children to make sure that we do whatever we can to protect our family relationships.

Elizabeth C: I agree. So far my journey as a parent kind of reinforces all of the feelings I have about second parent adoption - it’s like, it's not about you. It's about the kids. Things might feel like they're unfair or they might feel not, not ideal, but you do it anyway because it's what's best for your family and I think that's just of part of becoming a parent is having to, excuse my language, but to suck it up. That doesn't mean that we shouldn't fight to change it, but in the meantime we have to accept their world for what it is right now and make sure that our children are protected within it. You know, again, I think it can be a happy part of the story even though we should be working to change it.

Joyce K: And also I think it's important, like I said earlier, to remember how much has changed since when I had my daughter. You literally could not even purchase anonymous donor sperm. I mean, part of the reason I used a known donor was because I had no other option and that was 33 years ago, 34 years ago, and so much has changed and I think we should celebrate how far we've come.

Emily M: Yeah, absolutely. The thread throughout it is while today, doing a second parent adoptions can be frustrating and show us how things have not been keeping up with their families, there are ways to find joy in that affirmation, that confirmation of our families. Thank you both so much for joining me today and thank you for the conversation.