second parent adoptions a summary of law and practice in new york

SECOND PARENT
ADOPTIONS:
A SUMMARY OF LAW AND
PRACTICE IN NEW YORK
REBECCA L. MENDEL
ROSIN STEINHAGEN MENDEL
r m e n del@lawrsm.com
www.lawrsm.com

GENERAL INFORMATION
• Governing law of New York: Domestic Relations Law §§109-
117
• Who can be Adoptive Parents
• DRL §110: Used to only allow for an adult person, a husband and
wife together, or a married individual living separate and apart
pursuant to separation decree or agreement, or living apart for 3
years to adopt as a single person.
• Matter of Jacob 86 N.Y.2d 651 (1995)
• In September 2010, DRL §110 amended. The statute now allows for
an adult, unmarried person, an adult married couple together, any
two unmarried adult intimate partners together, or a married
individual living separate and apart pursuant to separation decree or
agreement, or living apart for 3 years to adopt another person.

SECOND PARENT ADOPTIONS: GENERAL
• Second Parent Adoptions are considered to be Private
Placement Adoptions.
• Usually situations where two unmarried persons are in a
committed relationship, and one person is the legal parent of
the child and the other wishes to adopt the child.
• The legal parent must consent to the adoption, but the legal
parent maintains his or her parental rights.

EXAMPLES
• Example 1: Same Sex unmarried female couple. One partner
gives birth to a child through the use of donor sperm. The
legal parent is the birthing parent. The non-birthing partner
then does a second parent adoption to insure she has
parental rights as well.
• Example 2: Different Gender unmarried couple. Female
decided to be a single parent prior to being in a relationship
with the now partner. She used donor sperm and went
through artificial insemination. She gave birth to a child. Two
years after birth, she meets her partner. They begin a
relationship, he moves in, but they don’t wish to get married.
They decide they want him to also be a parent. He does a
second parent adoption.

EXAMPLES…CONTINUED
• Example 3: Same Sex unmarried male couple. One partner
adopts a child as a single parent. That partner may do that
because the state where the adoption is taking place may not
allow adoptions by same sex couples. After that adoption is
complete, if the parties are living in or move to a state that
allows adoptions by same sex couples, the partner will then
petition for a second parent adoption in the new state.
• Note: After the adoption is completed, the state where the birth
certificate is issued may not amend the birth certificate to include
the second parent’s name. See Adar v. Smith, 639 F.3d 146; 2011
U.S. App. LEXIS 7545 (2011).

CERTIFICATION AS QUALIFIED ADOPTIVE
PARENT
• Domestic Relations Law §115-d
• Exception for step-parent adoptions. See Domestic Relations
Law §115-d(8)
• Most courts will treat second parent adoptions as if they were
step-parent adoptions.
• See Matter of Camilla, 163 Misc.2d 272 (Fam. Ct. Kings Co. 1994).
Judge Hepner found that the pre-placement certification exemption is
also applicable to second parent adoptions.
• Practice Tip: Matter of Camilla is a lower court decision. It is
advisable to check with the Court in which you plan to file a second
parent adoption as to whether or not they require a certification
petition to be filed prior to or contemporaneously with a petition for a
second parent adoption.

REQUIREMENTS FOR
SECOND PARENT ADOPTIONS
• Each Court has its own list of required documents. Advisable
that you check with your court before filing.
• Since second parent adoptions are private placement
adoptions, it is not required that the entire packet be filed at
the same time. See Domestic Relations Law §115-b(5).
• Most of the required adoption forms can be found on the
Office of Court Administration (“OCA”) Website:
• For Family Court Forms:
http://www.courts.state.ny.us/forms/familycourt/adoption.sh
tml
• For Surrogate’s Court Forms:
http://www.courts.state.ny.us/forms/surrogates/adoption.sht
ml

REQUIRED DOCUMENTS
• A general list of possible required documents is as follows:
• Petition for Adoption
• Agreement of Adoption and Consent
• Judicial or Extra-Judicial Consent of Birth/Legal Parent
• Affidavit of Financial Disclosure
• Supplemental Affidavit
• Affidavit Identifying Party
• Order of Adoption
• Certificate of Adoption
• Order & Report of Investigation
• Homestudy Report: Will not be waived.
• Some Courts will require an investigation into the adopting parent and
the birth/legal parent
• Affidavit of Disinterested Party

REQUIRED DOCUMENTS…CONTINUED
• Affidavit of Marital History (with any marriage certificate, certificate of
domestic partnership, prior divorce decrees or death certificate of
former spouse).
• Affidavit of Denial
• Birth Certificate for child
• Notification of Adoption or Report of Adoption
• Reference Letters
• Letters of Employment or Tax Returns
• Office of Court Administration (OCA) Affidavit and Postcard
• If Insemination or In Vitro Fertilization used - letter from Physician
performing the procedure, and letter from sperm bank (if donor sperm
used).
• Medical Statement(s) of Health – Adoptive Parent(s)
• Medical Statement of Health – Child
• Child’s Medical History form 1-D
• Child Abuse (SCR) Clearances
• New York State Criminal Clearances

AFTER THE ADOPTION IS FILED
• Once filed, the adoption packet should be docketed and a
judge assigned within two weeks. The court will also inform
the attorney of any deficiencies and give the attorney a
tentative adoption date.
• Once the file is complete, the judge will then review all the
documents. If the judge has any questions that he/she would
like answered, or requires any additional documents, the
attorney will be so informed.
• When the judge is satisfied with the filing, the judge will
direct that the adoption clerk(s) schedule a finalization date
and inform the adoption attorney.
• All appear for finalization hearing before the Judge
• Order of Adoption signed!

AFTER THE ADOPTION FINALIZATION
• Court will send notification to Vital Records to amend the
birth certificate.
• In NEW YORK, Birth certificate will be amended to include the
child’s adoptive name and names of the birth/legal parent
and adoptive parent.
• However, if couple is of the same gender, other states may not
list both parents on the birth certificate.
• It is important for your clients to know this end result in
advance so that they can be prepared.

CONCLUSION
• Although there is a general format for second parent
adoptions, every adoption takes on a life of its own and the
attorney must be prepared to assist his or her clients
accordingly.
• Be prepared: It is important to know the rules of your local
adoption court.
• Make it as simple and easy as possible for your clients.