Second-Parent Adoption 101: Do I need to Adopt my non-biological Child if I am Already on the Birth Certificate?

Welcoming a new addition to the family is a joyous time for many couples. However, parents who are not biologically related to their child, as is the case in many LGBTQ+ families, may have concerns about how to officially establish their parental rights now that the child is in the home. The Illinois Parentage Act determines who is considered a parent under Illinois law. The Act seeks to ensure children can have their physical, mental, and emotional needs met by both parents, including those who are not biologically related to the child. However, not all states recognize these same rules. An experienced family law attorney can help you determine your legal rights and responsibilities in Illinois and beyond. Our firm is LGBTQ-owned and is highly experienced in working with LGBTQ+ clients, so we are perfectly suited to support your family.

Who is Considered a Parent in Illinois?

The Illinois Parentage Act creates what it calls a “presumption of parentage” for people in many different relationships with the child. For example, a person giving birth to the child is presumed to be the child’s parent, as is any adult legally married to the parent giving birth. Parents who used a surrogate to carry the child to term are also presumed to be the parent of the child, as long as the parents hold a surrogacy contract that complies with the Illinois Gestational Surrogacy Act. One of the most common ways parentage is established under the Parentage Act occurs when the non-birth biological parent signs a Voluntary Acknowledgment of Paternity, also known as a VAP.

Those people legally presumed to be parents based on any of the above can be included on the child’s birth certificate, allowed to sign forms for the child after birth in the hospital, and can have the child discharged from the hospital into their care.

I’m on the Birth Certificate – Why Would I Need to Adopt My Child?

Legal parents, meaning parents who are legally presumed to be the child’s parent because they were married to the birth parent when the child was born, are recognized in the same light as biological parents in Illinois. However, not all States in the U.S. recognize these types of parent-child relationships. For example, Alabama, Mississippi, Texas, and Florida, among others across the country, have laws on the books that deny LGBTQ+ couples, married or not, the right to adopt a child and thereby establish legal parentage. The Supreme Court of the United States ruled in its 2015 landmark decision Obergefell v. Hodges that all states must grant same-sex couples the right to marry and must grant them the same associated privileges the State grants to heterosexual couples. As such, Obergefell ensures that any legal parent-child relationship based on relationship by marriage to the birth parent in one state should be recognized and upheld in every state.

While Illinois law is a great comfort to parents within its borders, the Obergefell decision is at risk of being overturned, causing many families to fear the potential backlash outside Illinois’ borders. If this decision is overturned, the US would likely revert to a patchwork of different same-sex marriage laws and restrictions on same-sex parentage that were in place prior to the decision. This means that not only your marriage, but also your status as legal parent of your child could be at risk if you leave the state. Given the anti-LGBTQ+ stance of the current administration and the conservative majority on the Supreme Court, it would be wise to ensure that your family’s legal status is protected regardless of what may come.

Benefits of Adoption

Adoption is a formal court proceeding that establishes a legal parent-child relationship and results in a court order, commonly referred to as an Adoption Decree. An Adoption Decree is more protective of your legal parental status than a presumption of parentage because an adoption decree is recognized throughout the United States, regardless of the parents’ marital status or a state’s recognition of their marital status. Even if Obergefell is overturned, your parental status will be protected throughout the country. If you are considering moving or traveling outside of Illinois, formally adopting your child will afford you the highest level of protection.

The Illinois Adoption Act allows a birth parent’s legal spouse to adopt the child in a straightforward proceeding, often involving only one court appearance to finalize the adoption decree. These proceedings, called Second-Parent Adoptions, are normally exempt from the child welfare investigation required in traditional adoptions. The process typically boils down to three steps:

1. Gather the necessary supporting documents;
2. Draft and file your petition for adoption; and
3. Appear before a Judge to finalize the adoption!

Contact Our Experienced, Knowledgeable Adoption Attorneys

In these uncertain times, protecting your family is paramount. Our experienced family law attorneys can guide you through the adoption process and ensure your family is protected at the highest level. O. Long Law, LLC is committed to serving LGBTQ+ families and providing the high-quality legal services our community requires. We are ready to help – call us or submit our contact form to start your adoption journey.