do second-parents have legal rights? let’s ask Heather Poe

Best of Queercents week continues with a “guest blog” by
Nina Smith.

“The most important thing about a family is that all the people in
it love each other.”
– from Heather has Two Mommies

Queers around the nation heard the breaking news a couple of weeks
ago about Mary Cheney’s pregnancy.
John Aravosis
had plenty to say about the topic. He writes,
“They live in Virginia, where a new state constitutional amendment
pretty much guarantees that
Mary’s baby is screwed

“In November, Virginia voters passed a state constitutional
amendment banning gay marriage and civil unions; state law is
unclear on whether [Heather] Poe could have full legal rights as a
parent of Cheney’s child.”

Yes, Virginia, there is a Santa Claus, but even he can’t make
Heather Poe the legal parent in her state. This denies her a basic
human right and will hurt her child. The American Academy of
Pediatrics asserts, “Children who are born to or adopted by 1
member of a same-sex couple deserve the security of 2 legally
recognized parents. Children deserve to know that their
relationships with both of their parents are stable and legally
recognized. This applies to all children, whether their parents are
of the same or opposite sex.”

This is an issue that is top-of-mind these days as Jeanine and I
proceed with the
baby-making process
. In my relationship with Jeanine, I’m the
legal equivalent to Heather Poe. When we finally have our baby,
I’ll have to ask the State of California to grant me a
second-parent adoption. What is this?

HRC offers
this explanation
, “A second-parent adoption allows a second
parent to adopt a child without the ‘first parent’ losing any
parental rights. In this way, the child comes to have two legal
parents: you and your partner. It also typically grants adoptive
parents the same rights as biological parents in custody and
visitation matters.”

“Where is it available? Eight states and the District of Columbia
have approved second-parent adoption for lesbian and gay parents
either by statute or state appellate court rulings, which means
that it is granted in all counties statewide.”

These states include:

  • California
  • Connecticut
  • Illinois
  • Massachusetts
  • New Jersey
  • New York
  • Pennsylvania
  • Vermont

Virginia is missing from this list which is why it’s unlikely that
Heather Poe will have any rights. Why should every state offer
second-parent adoptions?

According to The
Rainbow Babies
, “Imagine that you and your partner decide to
adopt a child, but only one of you can adopt her or him. Your
partner becomes the legal parent. However, you begin to find that
your lack of legal parental rights is a problem: you can’t pick the
child up at daycare without a consent form, you can’t make medical
decisions or even authorize life-saving medical treatments without
an authorization form, and if you and your partner split up, you
will have absolutely no legal right to custody or even

“Even worse, if your partner should become incapacitated or die,
you will have no legal rights to the child at all; despite the fact
that you see yourself as the child’s parent, and he or she sees you
as such, you will have no legal right to keep the child. Entire
families have been torn apart for the lack of a second parent

“Although many of these problems can be solved with the right
paperwork – consent forms, authorization forms, custody agreements
in case the parents split, and a will appointing the partner as the
child’s legal guardian in the event that the legal parent dies – it
takes a good deal of forethought and preparation.”

“A second-parent adoption removes the need for most of these
precautions, as it gives both partners equal legal rights as the
child’s parents. Should you and your partner split up, both of you
have equal rights to custody and visitation; and should a medical
emergency require it, both you and your partner will have equal
right to make a decision regarding medical treatment for the child.
Most importantly, second-parent adoption is better for your child,
as it reduces the chances of losing one of his or her parents due
to a legal loophole.”

I went searching online to find out what the paperwork will cost us
and I couldn’t find anything. We will likely hire an attorney that
practices family law to draw up the paperwork or we could probably
save money by reading the book:
Do Your Own California Adoption: Nolo’s Guide for Stepparents and
Domestic Partners

Although Heather Poe will not be granted a second-parent adoption,
she has one other option for protection:
a co-parenting agreement
. This will enable her to consent to
medical care for their child and it could also stipulate that they
name each other as the child’s guardian in their wills. However,
this stipulation is still not legally binding a court of law. If
something happens to Mary, then Dick and Lynne could sue Heather
for custody and probably win in the Commonwealth of Virginia.

We are so behind the rest of the world. In February 2006, France’s
highest court ruled that both partners in a same-sex relationship
can have parental rights over one partner’s biological child. Gay
Paree respects Gay parents. When will we have the same rights
nationwide in this country?