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Non-Biological, Same-Sex Parents Should Consider Adoption – Even if Your Name is on the Birth Certificate


In 1997, New Jersey became the first state in the U.S. to allow same-sex couples to jointly adopt children on the same basis as any other married couple. In 2013, New Jersey recognized the right of same-sex couples to marry. And in 2015, the U.S. Supreme Court officially recognized that same-sex couples throughout the U.S. have the right to marry in Obergefell v. Hodges.

Obergefell was not solely a question of same-sex adoption rights, but it did explicitly recognize adoption as one of the longstanding rights of marriage.

But even with all this history to affirm the rights of same-sex parents and spouses, there are still unique considerations these families must weigh. As our Freehold same-sex marriage lawyers can explain, non-biological parents should consider initiating formal adoption proceedings of the child you share with your spouse – even if you and your spouse were married when the child was born AND your name is on the child’s birth certificate.

Same Sex Parents Continue to Fight for Parental Rights

Before Obergefell, only some states (New Jersey included) protected the right of same-sex parents to adopt children.

However, at least one state (Mississippi) outright banned married gay and lesbian couples from adopting children. Even after Obergefell, it took a Federal District Court ruling to block Mississippi from continuing to enforce that ban.

That hasn’t been the last we’ve heard of these issues. Other recent examples:

  • In 2016, the U.S. Supreme Court ruled that Alabama courts must respect another state’s adoption judgment pertaining to a same-sex parent. Alabama courts had initially refused to enforce a Georgia adoption judgment by granting custody/visitation rights to a woman who raised a child since birth with her wife, the child’s biological mother.
  • The U.S. Supreme Court in 2017 struck down as unconstitutional an Arkansas law denying non-biological parents in same-sex marriages the right to have their names added to the birth certificate of children conceived through anonymous sperm donors.

Although New Jersey has been relatively progressive where LGBT couples and their families are concerned, it’s still wise to take precautions when you have children to ensure your parental rights are protected.

Why File for Adoption if My Name is on the Birth Certificate?

There are two New Jersey laws that protect parental rights in cases of same-sex married couples who opt for artificial insemination via a donor under medical supervision. Those are:

NJSA 9:17-44, the state’s artificial insemination statute.

NJSA 9:17-43, the marital presumption statute.

A non-biological parent of a child born as a result of artificial insemination is presumed to be the legal parent of that child if the statutory requirements are met. Those requirements include:

  • Sperm is donated with advance written consent of both spouses;
  • Insemination was done under the supervision of licensed medical professionals;
  • The written consent is certified by the doctor.

The donor in that case would have no legal rights as a recognized parent.

NJSA 9:17-43 notes that a man may be presumed the biological father of a child born to a woman who is his wife at the time of the birth. Obergefell grants same sex spouses this same presumption, even though the statute terms like “biological father” and “man.”

However, laws in many other states pertaining to parental rights are still outdated. If you move and find yourself in a child custody dispute, you may face challenges in preserving the legal parental rights established in New Jersey by way of your marriage and name on the birth certificate.

For this reason, we strongly recommend taking the extra step of protecting these rights by initiating a New Jersey adoption.

To learn more about New Jersey adoption for same-sex couples, contact Rozin | Golinder Law today at (732) 810-0034.

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