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Second Parent Adoptions

By: Peggy Senentz on Jul 7, 2013

Florida Courts are now entering adoption orders that allow a homosexual partner of a biological or adoptive parent to adopt a child. This process recognizes those existing family units and provides children of homosexual couples with all the legal protections available to adopted children of heterosexual couples.

What are second parent adoptions and how are they different from other types of adoptions in Florida?

Florida law currently allows for several types of adoptions. These include a stepparent/relative adoption, a non-relative adoption and under a growing body of developing case law, a second parent adoption.  Non-relative adoptions are what many people think of when a birth parent seeks to place her child with a family who is not related to the child.  Usually the birth parent will work with an adoption attorney or agency to help them locate a family, which seeks to adopt the child.  A stepparent or relative adoption is when a parent seeks to have his or her child adopted by spouse or other relative who is within three degrees of consanguinity to the child being adopted, such as an aunt or uncle.

The third types of adoptions currently entered in the State of Florida are second parent adoptions.  Florida Courts are now entering adoption orders that allow a same sex partner of a biological or adoptive parent to adopt a child. This process recognizes those existing family units and provides children of same sex couples with all the legal protections available to adopted children of heterosexual couples. These types of adoptions are known as second parent adoptions and are not a stepparent adoption.  Second parent adoptions require the same statutory requirements and procedural safeguards that are required of non-relative adoptions. 


Summary of Case Law Development

On September 22, 2010, the Third District Court of Appeals in the decision of Florida Department of Children and Families v. In re:  Matter of Adoption of X.X.G. and N.R.G., 45 So. 3d 79 (Fla. 3rd DCA 2010) found section 3 of Florida Statute section 63.042 unconstitutional.  That section reads, “No person eligible to adopt under this statute may adopt if that person is a homosexual.”  The Florida Department of Children and Families did not appeal the decision and later that year the Florida Office of Vital Statistics printed new birth certificate forms for use in partner adoption cases referring to “Parent 1” and “Parent 2”.

In January 2011 a Miami Court Judge held that Florida Statute section 63.172 regarding the effect of judgment of adoption did not preclude an initially adopted child, whether previously adopted or naturally born, to have two (2) parents of the same gender, or two unmarried persons being parents of the same child.  The adoption is controlled by the adoptee’s best interest.

How is a second parent adoption different from a stepparent adoption?

Second parent adoptions are not stepparent adoptions, and therefore, a parent who files a second parent adoption must complete the same statutory requirements that are undertaken in a non - relative adoption.  Consequently, an adoption entity must represent the prospective adoptive parent, a home study is required, the parent placing the child must be interviewed, and in most cases a termination of parental rights proceeding must be accomplished in a separate petition.  In addition, after the initial home study, a licensed provider must conduct several post placement visits to check on the status of the placement. After the termination of parental rights hearing, an additional court hearing is held to finalize the adoption after a required statutory waiting period.  On average, a period of four to six months is suggested to move from the initiation of your second parent adoption to finalization.

In contrast to second parent adoptions, stepparent adoptions are treated as expedited proceedings and in one petition the parental rights may be terminated and the stepparent adoption finalized.  A home study is not required unless good cause exists and unlike second parent adoptions, there is no statutory waiting period or requirement of post placement visits.