Parenting isn’t easy. That saying has never been more accurate when you are creating or expanding your family by adoption. Whether you are considering a step parent adoption, a second parent adoption, or possibly adopting domestically or internationally, it is important to understand the road ahead so that you can plan as best you can for your new family.
New York adoption law is complex and not always user-friendly but having a basic understanding of the process is invaluable. If you are considering becoming an adoptive parent here are a few things to know about how New York handles this process.
Adoption is the process of becoming the legally recognized parent of a child who is not biologically your child. The process concludes with a “finalization ceremony” which is a court proceeding where the Judge will take brief testimony from the adoptive parents and then sign the adoption paperwork; solidifying the adoptive parents as the legal parents for any and all purposes. After the finalization ceremony, a new birth certificate will be issued which removes the biological parents and lists the adoptive parents.
Unlike becoming a guardian—a process that temporarily places legal, decision-making authority into the hands of an outside adult—adoption is permanent and binding. Once finalized, all duties, rights, and responsibilities of parenthood shift to your shoulders. In the eyes of the law, you are that child’s parent—completely and wholly.
The metamorphic nature of adoption has far-reaching results. Legally, it shifts the line of inheritance from biological parents to adopted parents and alters birth records. Emotionally, it solidifies and completes the bond that has been present since the first day you met your child.
Once concluded, adopted children will receive an amended birth certificate, which replaces the names of birth parent(s) with their adopted ones, insuring that there is no legal distinction between the rights of one versus the other.
Who Can Adopt?
The short answer is: most adults.
While some states are still playing catch up to the idea of what a modern family looks like, New York does not restrict adoption to traditional family units. This opens the possibility of parenthood up to a wide range of individuals, including:
- LGBTQ couples;
- Single individuals;
- Married couples;
- Two intimate partners;
- Couples without children;
- Couples with children;
- High income households;
- Low income households;
- Women; and even,
- Gold-aged senior citizens.
In New York, gender, income, religion, race, marital status, or sexual affiliation make no difference in terms of whether or not you’re allowed to adopt. Indeed, in our state, the only real adoption qualifications, are:
- You must be at least 18; and,
- You must pass a criminal background check.
Background Check: Red Flags
Abuse. If a background check reveals any felony convictions involving abuse, neglect, sexual crimes, or drug use that has occurred within the past five years, these individuals will not be allowed to adopt or foster. Full stop.
Citizenship. While proof of citizenship is not technically required to become an adoptive parent, the ability to provide a stable home environment is a requirement. Thus, any uncertainty about an individual’s citizenship status could potentially create an inadvertent roadblock.
Marriage. If a married person wishes to adopt, then both spouses must adopt. The only exception, is if the couple has been legally separated by either court order, or living on their own for more than three years. In that instance, a married person may adopt on their own; without the consent of their spouse
Adoption: The Process
The adoption process will vary past upon the type of adoption you need or want. So, the first step in the adoption process is determining the type of adoption you want to pursue. The types of adoption are:
- Domestic Adoption: which is when you pursue the adoption of a child from anywhere within the United States by either (1) hiring a private adoption agency, (2) finding a birth parent on your own and pursuing a private adoption, or (3) adopting through the foster care system
- International Adoption: which is when you adopt a child in another country and then return to the US and readopt or register the adoption in the US.
- Step-Parent Adoption: this is a process whereby a step-parent adopts the biological child of their spouse.
- Second-Parent Adoption (LGBTQ Adoptions): this process is frequently used by LGBTQ couples to provide an additional layer of protection to their family, so that they are indisputably parents of their child and not relying solely upon marriage laws to prove parentage.
- Adult Adoption: is when an adoptive parent adopts an adult person (which is someone who is over the age of 18). This type of adoption is often done for estate planning purposes or by LGBTQ couples who do not want their legal relationship to rely solely upon marriage laws (as the recognition of a legal same sex marriage can vary significantly).
If you have questions about which path to adoption is best for your family, it is a very good idea to meet with an adoption attorney who can answer your questions and help you choose the best first step forward.
Moving Forward: Biological Parent’s Consent
In New York, birth parents have legally recognized rights that may require them to be notified of all adoption proceedings until such time as they sign a Consent to Terminate their parental rights or until a Judge terminates their parental rights. Therefore, once you’ve chosen the type of adoption that you would like to pursue, you will then need to consider whether the adoption will be on consent of the birth parent(s) or without the consent of the birth parent(s).
If the adoption is on consent of the birth mother, which is most often the case with private adoptions (except for foster care adoptions), then you will need to determine whether the birth father needs to be notified of the adoption. The requirement to notify the birth father will vary based upon the birth father’s level of involvement in the child’s life, and the age of the child when he or she was placed with the adoptive family. Once the parental rights of both parents have been terminated, the adoption can move forward to finalization.
If the adoption is not on consent of either the birth mother or a birth father (who falls into the category requiring notification), then you may still move forward with requesting the adoption but need to first terminate the biological parent’s rights. A termination of parental rights proceeding can be lengthy, costly, and emotionally-draining. You will want to make sure that you speak with your adoption attorney to find out how to best prepare for this portion of the process.
The process of obtaining the consent of a biological parent (or terminating their rights) can be lengthy. While that is going on, the adoptive parents can still move forward with a number of other requirements for the process, such as:
- Home study: this is when a social worker visits your home, interacts with you and any other members in the home, and receives information from collateral contacts as to whether they believe the adoption is in the adoptive child’s best interest. The fee for the home study will vary and in most instances it is paid by the adoptive parents.
- Medical Clearance: New York state requires that an adoptive parent provide a letter from their doctor stating their health status.
- Criminal background check: this process is all electronic and is relatively simple. Appointments can be made online and the fees are typically less than $25 and paid by the adoptive parents.
- Petition for Adoption and related paperwork: there is a lot of paperwork to complete to petition for an adoption. Your attorney should handle this portion for you but be aware that you will be asked to sign several different documents, ranging from a Petition to Adopt to an Agreement to Adopt.
- Completing the waiting period as required by your specific situation.
Once the birth parents rights have been terminated (either by a court or on consent), the remaining paperwork is complete, and the criminal background check is passed, the adoption proceeds to a finalization hearing. This is a formal hearing where the Judge will take testimony from the adoptive parents about why they wish to adopt. The Judge will then sign the Decree of Adoption making your status as “parent” 100% official! It is a very exciting day and typically parents can bring along other friends and family members to celebrate with them.
Step-Parent, Second-Parent, and LGBTQ Adoptions: A Special Note
Many parents wonder about the benefits of pursuing a step-parent or second-parent adoption. They worry about whether it is “worth” the cost of the attorney’s fees they may incur. While the decision to pursue a step-parent or second-parent adoption is personal to each family there are some reasons why the cost could be worth it to your family; especially given the finality and permanency bestowed by an adoption.
A step-parent adoption will end the rights of one biological parent; with the end of those rights also comes the end of their child support obligation. Many times that detail will aid in getting the biological parent to sign off on their rights. Once that occurs, the process is very streamlined and cost-effective.
For a second-parent adoption or an LGBTQ adoption, the process of formally adopting the child that you already regard as your own can feel…demeaning and degrading. But, adoption may be a very important avenue for you to pursue so that your parental bond is based upon more than just the presumption of marriage or the birth certificate. Presumption of parentage by marriage and or by listing both parents on a birth certificate is just that—a presumption. It is subject to interpretation based upon the individual or entity you are dealing with and, even worse, can be subject to change based upon the reversal of laws and current court rulings. The only way to guarantee that your family unit will be recognized as a family is by obtaining an Order of Adoption or a parentage order.
A second-parent adoption or an LGBTQ adoption is typically very cost-effective and streamlined; especially for the significant rights and protections it affords the parents and the children.
As of February 21, 2021, New York State will allow LGBTQ couples the additional avenue of filing a parentage proceeding. The parentage proceeding will be a streamlined proceeding that results in the issuance of a parentage order. The proceeding should have the advantage of allowing LGBTQ couples to by-pass the following requirements: home study, abuse/neglect clearances, medical histories, financial forms, fingerprinting, etc. The goal of this proceeding is to confirm parentage; rather than apply for it (as is the purpose of the adoption proceeding). This type of proceeding is far more appropriate for LGBTQ couples and will hopefully result in a simpler, more stream-lined process, for parents.
Lauren L. Hunt: New York Divorce Attorney
As a parent, I know firsthand about both the difficulties and joy that come with raising a child. It isn’t an easy journey, but nothing is quite as beautiful, either.
If you have more questions about adoption in New York, and how these laws could affect your family, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you complete your family through adoption.
Frequently Asked Questions
How long does adoption take?
What is a closed or open adoption?
Who can adopt?
- Child abuse or neglect;
- Spousal abuse;
- Crimes against children;
- Violent or sexual crimes; or,
- A felony for drugs or physical assault in the past five years.
How do adoptions work?