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Duke Law > Duke Law Scholarship Repository > Journals > DJGLP > Vol. 2 > No. 1 (1995)

 

Authors

Suzanne Bryant

Abstract

The Liberal Judicial Construction of State Adoption Laws Allows Courts to Grant Second Parent Adoptions to Lesbian and Gay Adults I. Introduction: Second Parent Adoptions A second parent adoption refers to the adoption of a child by his or her legal parent's 1 non-marital partner, without requiring the first partner to give up any parental rights or responsibilities. 2 In second parent adoptions, as in step-parent adoptions, the child is already living in the couple's home and will continue to live there. In both types of adoptions, a non-legal parent has a relationship with the child and wishes to adopt without terminating the legal parent's rights. Therefore, a second parent adoption is the natural extension of step-parent adoptions; in both cases, the couple simply desires to provide legal and emotional stability for the child. Second parent adoptions may occur when a child's heterosexual parents are unable or unwilling to marry and establish paternity, 3 or when the parents are lesbian or gay. Courts have granted both heterosexual and lesbian and gay second parent adoptions relying on the step-parent adoption analogy. 4 When presented with a second parent adoption petition, a court initially must decide (1) whether state law prohibits the two parents from filing a joint adoption petition 5 and (2) whether granting the adoption requires the court to terminate the legal parent's existing parental rights. 6 Once these legal hurdles have been overcome, the primary issue before the court is whether the adoption is ...

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