Center Blog

This blog is crosss posted with permission from It’s Conceivable

Guest Post By Evita Nancy Torre, Esq. 

Since New York became the sixth state to legalize same-sex marriage, adoption attorneys have been flooded with inquiries about the continued need for second-parent adoptions, which allow a same-sex parent to adopt their partner’s child (biological or adoptive) without terminating the first parent’s legal rights. If a same-sex couple moves—or even travels—to one of the many states and countries that do not allow or acknowledge same-sex marriage, the second-parent loses all recognized rights and responsibilities to the child. The only way to guarantee that the relationship is enforced is via a second-parent adoption, and both same-sex and adoption advocates strongly suggest same-sex couples pursue this option.

Adoption law, along with all family law, is based on the best interests of the child—what serves the child’s well-being and ensures the child’s safety. If there is an emergency medical decision needed for a child and the second-parent is the only person available to make that decision, the second-parent adoption can be literally life-saving. Additionally, adopting as a second parent gives the child certain rights, such as child support, social security and health insurance benefits, and inheritance from you. The adoptive parent will also have the right to custody and visitation regardless of the status of the partnership or marriage. And if a parent passes away or becomes incapacitated, the second-parent’s rights and responsibilities, which are not guaranteed in a state or country that does not recognize same-sex marriage, will be protected.

Steps to a Second-Parent Adoption in New York

In New York, Family Court and Surrogate’s Court have jurisdiction over adoptions. Although the processes in Family Court and Surrogate’s Court are very similar, each court, especially based on which county the case is in, runs differently. There is no steadfast rule about which court is most expedient or which judge is least flexible, but an experienced adoption attorney understands the nuances of the individual court’s requirements and how to interpret a court calendar and judge/surrogate rotation to the client’s benefit.

Along with initial legal paperwork, a home visit (study) by a social worker is conducted. A parent can obtain a free home study from the Probation Department but unfortunately there is a tremendously long wait time. Or, you can choose a court-approved and licensed social worker based on the suggestion of your adoption attorney. In addition to being LGBT-friendly, a parent should inquire about the social worker’s employment history, the cost of the homestudy (anywhere from $500 to $1000) and the amount of time for the homestudy to be completed (usually 30-60 days for the report to be written).

What to Expect from the Home Study

Your social worker will likely call you prior to the date of the home study to allow you to ask questions about the process. During an approximately three-hour visit, the family and the home will be evaluated to make sure the environment is suitable and safe (i.e. safety measures, window guards, outlet covers, a fire safety plan) for a child. Various factors will be reviewed, such as your social, economic, medical, and criminal (by taking fingerprints to check for criminal records and reports of child abuse) background. It is your social worker’s job to tell your story accurately and without judgment, and to engage your family in a discussion about aspects of adoption that you may not have considered. “I am not coming to investigate a family but rather to interview them so that I can tell their unique story in a way that is reflective of their history, morals, values, and beliefs about family and adoption,” says Shanequa Anderson, an LGBT-friendly social worker in New York City, who gives clients a questionnaire prior to her visit in order to prepare. Here’s what you can expect to prepare for the social worker:

• Dates and locations of significant life events (marriages, births, etc.)
• Financial information (savings and investment accounts, as well as monthly budgets)
• Medical information (primary care physician’s contact information and prescription medications)
• Family information (ages and names of extended family members)

Before, during, or after the home study is completed, an adoption attorney will provide parents with the remaining legal paperwork, including a Child’s Medical History Form, an Agreement of Adoption, an Affidavit of Financial Disclosure, and the Order of Adoption. Additional forms may be necessary, depending on the court, county, and case facts. The paperwork is detailed and can be daunting, but a court requires thorough information to protect the child’s best interests. Your adoption attorney will lead you through the process, explain each form, and answer any questions or concerns you might have. If the court has questions or requests further documents, your adoption attorney will notify you and help you fulfill the court’s conditions.

Second Parent Adoption Timelines and Wait Times

Within approximately eight months, depending on the specifics of your individual case, your adoption attorney will submit the complete package (including legal forms and homestudy report) to the court. Once submitted, the adoption clerk will review your file within approximately two to three weeks. If there are any requested additional forms or preliminary questions, these are handled at that time. After the clerk feels the packet is complete, it is passed to the judge for review. The judge has 60 to 90 days to review the packet and will schedule the adoption finalization after the review is completed. While some parents might be concerned that they will encounter discrimination, the New York City court system welcomes adoptions within all families. Judges enjoy finalizing adoptions of all types—straight, same-sex, domestic, international—and try to make the event a memorable occasion for you, your partner, and your child, who must be present.

The court will advise you and your attorney of a picture-taking policy, and whether other guests may be in the courtroom for your family’s celebration. The special day requires no preparation and should not cause any concern. Like the birthdays and graduations you will someday share together, the adoption finalization “ceremony” (usually only 5 or 10 minutes) is a cherished moment for your family to enjoy and remember fondly.

Evita Nancy Torre is an adoption attorney with Greenberg Adoption in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Center, and recently published a children’s book about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Evita and Cliff host The Center’s monthly Family Law Clinic, and exclusively practice adoption law (public agency, private agency, second-parent, sperm donor agreements, co-parenting agreements) in Chelsea.

This blog is crosss posted with permission from It’s Conceivable

Guest Post By Diana Adams, Esq, Attorney and Mediator

Adams is a trusted Center partner and supporter of our Center Families Program.

Many families today seek artificial insemination from a sperm donor, including lesbian couples, single women, and heterosexual couples in which the male does not have viable sperm. Despite the availability of sperm banks, many women prefer to collaborate with a male friend. In this situation of ‘informal sperm donation’, a Sperm Donor Agreement is essential.

A Sperm Donor Agreement is a contract between the sperm donor and the person seeking to use that donor’s sperm for insemination purposes, without using a sperm bank as intermediary. The primary purpose of this document is to clearly identify that although the sperm donor is the biological father, he intends to sever all legal rights and responsibilities of fatherhood, including visitation access, all decisions about the child’s health, religion, schooling, or anything else, responsibilities for child support, and any other care or support of the child.

Swept up in the excitement of planning parenthood, potential parents and a potential donor may not speak in detail about their expectations of the donor’s role. As with a romance, people often rush past important stages of trust-building and negotiation. The discussion and reflection involved in crafting a well-meditated agreement will help prevent future misunderstandings and disappointments.

For instance, everyone must be in agreement about the role of the sperm donor in the child’s life, if any. A lesbian couple may choose a sperm donor who is a relative of the woman not intended to give birth, so that the child will be related by blood to both women. In other instances, a trusted friend may be invited to be a donor. In either case, it is likely that the donor and the child will come into contact, and it is in the best interest of the child that the donor and potential mother (or couple) come to agreement about the expected level of contact, if any. In some families, the donor may be treated like a special uncle, always present at birthday parties and family gatherings. The child may know from a young age that this man is his donor, and that they have a special connection. Other families choose for the child and donor to have little or no contact. There is not one right way to handle this issue, conflicting expectations lead to conflict.

What issues should be discussed between a potential sperm donor and birth parent?

I recommend that a potential sperm donor and potential birth mother or couple sit down and discuss the following:

• Do both sides agree that the sperm donor will never have financial responsibility of any kind?
• Do both sides agree that the sperm donor will relinquish all legal parenting rights, including decision-making about the welfare of the child, or formal visitation rights?
• Will the donor have a relationship with the child? If so, how often will the donor visit the child? (Occasionally is not specific enough. Once a week? Several times per year?)
• What will the child call the donor?
• When will the child be told that this person is his or her donor?

Since in some states, a Sperm Donor Agreement has tenuous or no legal standing, it is essential that both sides feel significant mutual trust.

Whether to prevent litigation or interpersonal strife, it is crucial to find a donor you are sure will not change his mind in the future, even if he ends up not having other children or if he disagrees with your parenting choices.

Similarly, a donor should be confident that the birth mother is emotionally stable and capable of parenting without financial or other assistance. If the potential donor is merely a friend of a friend you have only met a few times, it may be better to just use a sperm bank.

The process of insemination: Is a turkey baster enough?

A Sperm Donor Agreement will be most legally viable if a licensed physician is used in the insemination process. This may involve a several month waiting period in which the semen is ‘washed’ and tested by the medical facility, and then several months of insemination attempts during ovulation. Families often balk at the time and expense of this process, but if you have concerns about the legal status of the agreement, this effort may be very worthwhile. I recommend using a physician in New York State, or consulting with an LGBT family law attorney in your state for advice tailored to your situation.

Will a Sperm Donor Agreement be enforced in court?

This field of law is shifting with the increased acceptance of artificial insemination and alternate routes to parenting.

As of January 2012, Sperm Donor Agreements precluding the parental rights of sperm donors have been enforced in California, Colorado, Florida, Indiana, New Mexico, Ohio, Oregon, and Washington, DC, particularly if done via a licensed physician and where there is no involvement in the child’s life by the donor. Keep in mind that these challenges were raised because one party to the agreement later tried to contradict the agreement in court, either with a sperm donor seeking visitation rights or a mother seeking child support (or the state seeking it for her if she is on public assistance). These challenges are very rare, but still cause anxiety and present a slight risk to those entering into Sperm Donor Agreements.

In New York courts, donor agreements have been enforced between a donor and married couple, in which case the couples is assumed to be the legal parents, including in same-sex marriages; in New York, donor agreements are also enforced when the partner of the woman being inseminated adopts the child in a second-parent adoption. In this case the legal rights of the donor are severed. I strongly recommend second-parent adoption for same-sex female couples; their marriage may not be accepted in other states as evidence of parental relationship to the child, but a second-parent adoption is strongly legally enforceable nationwide.

It is worthwhile to create a Sperm Donor Agreement even its enforceability is legally uncertain. The process of negotiating the agreement and memorializing shared intentions in writing agreement will make it very unlikely that the parties will later disagree and bring the matter before a court. In the unlikely event that you do go to court, even if the agreement is not binding in your state, the court may look to it for guidance in what you intended and often uses it as a factor in making its decision. Furthermore, we need strong Sperm Donor Agreements challenged in courts so that they may be ruled legally binding. If a strong agreement is presented in a New York court, we will have the chance to change New York state law to make Sperm Donor Agreements enforceable and help future parents protect their rights.

Diana Adams is an attorney mediator who assists families to create stable family agreements, including Sperm Donor Agreements, second-parent adoptions, marital contracts. Her practice is based in New York and often serves the LGBT community. www.dianaadamslaw.net