Why Second-Parent Adoption is Still Important for Same-Sex Couples

By Chris Tymchuck
Founding Attorney

Should I adopt my child even if my name is on the birth certificate?

The landmark Supreme Court case of Obergefell v. Hodge recognized for the first time same-sex marriage at the state and federal level.  Passage of this monumental ruling strengthened the parental rights of same-sex parents; however, parenting rights continue to be largely influenced by state laws.  In order to fully protect your family and your child, it remains important for second parents to adopt their child, even if they are on the birth certificate.  Our Minnesota lawyers for the LGBT community at Unique Estate Law discuss the current legal status of non-biological parents and how you can preserve your parental rights as the second parent in a same-sex couple.

Minnesota’s Laws Concerning Same-Sex Parents

Prior to Minnesota’s recognition of same-sex marriage, if a same-sex couple chose to have a child together, only the biological parent would be considered legally a parent to the child.  As marriage was not yet an option, second-parent adoption was the best way to establish legal custody of the child.  Minnesota courts routinely granted second-parent adoptions to same-sex couples when it was deemed in the best interests of the child.  Second-parent adoption provided the non-biological parent with equal legal footing as the biological parent.

As the law evolved, non-biological, same-sex parents gained more legal recognition. As of 2013, same-sex couples in Minnesota are permitted to marry.  As of 2015, same-sex couples can marry nationwide.  Couples who conceive or give birth to a child during the marriage in Minnesota are presumed to be the joint legal parents, regardless of whether just one parent is biologically related to the child.

Even though non-biological parents “should” now receive the presumption of full legal parentage, regardless of their gender, the potential for issues still exists.  It is unclear whether the court will automatically assume the non-biological parent has the presumption of “legal parentage” where biology and adoption don’t exist.  Of additional concern is the potential for changes to the current laws regarding same-sex marriage.  The Trump administration has many LGBT couples afraid for their continued legal protection.  For instance, Minnesota may be supportive of the non-biological parents rights via the marriage, but what happens if that parent travels to another state (or country) with the child? What if the institution in that state does not recognize parentage via marriage/birth certificate? A simple solution to that would be a court order!

To avoid the potential for challenges to your parental authority, it is still advised that non-biological parents

adopt their children.  While this additional step can be burdensome and should not be necessary, taking the time to complete a step-parent adoption can provide you with the security you need to ensure your relationship with your child is never infringed.    


Protect your rights as a parent by contacting an experienced attorney now at 952-955-7623.


About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.