How has the legalization of same-sex marriage in Pennsylvania altered the adoption process for same-sex couples?

by Gabrielle Lee (Summer Associate)

“Any individual may become an adopting parent.” This statement, cited from Pennsylvania’s Adoption Act now rings true for same-sex married individuals seeking to adopt their spouse’s children through what is called a “second-parent adoption.”  The Adoption Act provides that, unless the court determines otherwise, the consenting parent of an adoptee (the child to be adopted) must permanently relinquish all parental rights to his or her child unless the adopter is the consenting parent’s spouse.

Prior to Pennsylvania’s Whitewood decision, which struck down Pennsylvania’s law refusing to recognize same-sex marriages, this “spousal exception” did not apply to same-sex couples, whether lawfully married outside of Pennsylvania or not.  Although the Adoption Act did not explicitly prohibit same-sex couples from adopting, it imposed additional hurdles not faced by opposite-sex married couples. Same-sex couples wanting to adopt had two options: either the consenting parent could temporarily relinquish all rights to the child and subsequently file for a joint adoption with the spouse, or the consenting parent could attempt to persuade the court that the adopting partner should be permitted to adopt while the parent retained custody. For the latter option, the court had the discretion to determine if the adoption was in the best interest of the child.

Fortunately, now that Pennsylvania recognizes same-sex marriage, married same-sex spouses no longer encounter these time-consuming and emotionally-draining hurdles that existed before Whitewood.


Judge Alarms Gay Parents by Finding Marriage Law Negates a Need for Adoption

A ruling by Brooklyn Surrogate’s Court judge, Margarita López Torres, on Jan. 6, has exposed one of the new legal complexities facing same-sex couples with children.

To see the full New York Times story, following the link below:

Domestic Partner/Cohabitation Agreements: Family

by Maureen B. Cohon

This is part two in a three-part overview of domestic partner/cohabitation agreements. Part one discussed financial and property matters that can be addressed in these agreements. Below, part two will cover family issues.

Family & Living
One of the many purposes of a domestic partner/cohabitation agreement is to document for a court and any other interested parties (i.e. an employer from which you wish to obtain domestic partner benefits) the “family nature” of the cohabiting parties’ relationship and living arrangements.

Questions to Consider

  1. Are there children living with you? What are the responsibilities of the nonparent?
  2. Are you and your partner thinking of having children or adopting? Will one partner carry the baby and the other partner adopt after birth? Are you considering a surrogate or anonymous or known sperm or egg donor?

There are many ways to have children; couples should talk to someone, such as an attorney experienced in adoptions and related issues, to create a written agreement that outlines parenting expectations.

For example, after the baby is born and before any adoption, you may want an agreement that states your wish for your partner to adopt the baby and until the time of the adoption she/he will share responsibilities for the baby and be the guardian. This is important because if something happens to the adoptive or birth parent, the Court and relatives know your wishes regarding your child. Or, if a second parent adoption is not allowed in your state, you may want to have a document stating that you want your partner to adopt your baby at the time such adoption is allowed in your State, and the non-adopting parent shall be the child’s guardian until such adoption.

Please check back for more information on Potential Separations.


In a bitter custody matter, a Vermont judge grants custody to the non-biological parent.

In 2000, this couple traveled to Vermont to obtain a civil union and decided to reside there as well.   One partner got pregnant through in vitro fertilization and together picked a donor.  The civil union was formally dissolved and the Family Court in Vermont granted custody to the biological mother with visitation with the non-biological mom. The biological mom began to block visits to the non-biological mom almost immediately and  eventually, the Vermont judge granted custody to the non-biological mom because of this and the biological mother took her daughter out of the country.

This happens often in custody matters, but this article lays out all of the issues.