As America rolls into its second year of legalized same-sex marriage, more gay and lesbian couples are finding ways to bring children into their families. But while Obergefell has opened the door for same-sex couples seeking two-parent and second parent adoption in Michigan, there are still some important things you need to know as part of your family planning.
1. Yes, You Still Need to Go Through a Second Parent Adoption
For married same-sex couples, a second parent adoption may seem like an unnecessary and even redundant precaution. After all, you are married, doesn’t that make you a parent automatically? Maybe.
If the child was conceived and born during the marriage, most legal commentators agree that Obergefell means you should be treated as a “presumed parent.” That means that the court should award you custody and parenting time rights as part of any divorce.
But Michigan law also allows for biological fathers (and presumably mothers) to disrupt the normal course of custody by filing a Revocation of Paternity action. So if a lesbian couple asks a friend to donate sperm, and then a couple years later that sperm donor decides he really wants to be a dad, the language of the Revocation of Paternity Act could allow him to terminate the rights of the non-biological mother.
A step-parent adoption, or second parent adoption removes that possibility. The known sperm donor will receive notice that the adoption is occurring. He can then either waive his parental rights (which most do), or the court can terminate his rights based on a number of factors. Once that happens, he loses access to the Revocation of Paternity Act and your parental rights are secure.
2. You Need to Be Married Before You Start a Second Parent Adoption
It may seem obvious that a step-parent adoption requires the petitioner to be a step-parent. But with all the uncertainty that has swirled around same-sex couples’ relationship status, some people are still confused. Second parent adoptions are step-parent adoptions. There is no rule in Michigan that allows two unmarried adults to adopt the same child. So if a gay couple had a child before Obergefell and they now want to unify the family, the dads are going to have to go to the alter (or appear before a judge) before the Petition for Adoption can be filed.
3. You Will Need to Terminate the Rights of the Sperm Donor
It has long been true that if a couple (of any orientation) used a known sperm or egg donor in their efforts to conceive, that person’s rights needed to be terminated as part of the adoption process. But until recently, couples using an unknown or anonymous donor could skip that step. That changed recently. The state is now requiring probate judges to terminate the rights of the unknown sperm donor before finalizing the adoption. To be prepared for this process, your adoption lawyer will ask you to get a letter from the sperm bank or fertility clinic confirming that you used an anonymous donor and do not know the identity of the biological parent.
BONUS: Get a Doctor’s Check-Up as Part of the Process
Most people don’t think of a parent’s health as a factor for an adoption. But one thing that the courts require is proof that the proposed adoptive parent is in sound physical and mental health. To get ahead of the game, schedule a doctor’s appointment after you meet with your adoption lawyer. Ask your doctor to send a letter to your attorney stating generally your health and listing any significant conditions that could affect your ability to parent.
Adoption is not an easy process. Even though second parent adoptions are the most straight-forward, same-sex couples can still expect to spend thousands of dollars and sign dozens of forms in the process of unifying their family. Hiring an experienced adoption attorney can make the process far less daunting. Working with an attorney can de-mystify the process and avoid timely and costly delays.
Lisa J. Schmidt is an adoption attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps same-sex couples unify their families and protect their rights. If you need help filing a second-parent adoption, contact Schmidt Law Services today to schedule a free consultation.