New Jersey Birth Certificates May Create a False Sense of Security for Same-Sex Parents

Posted by Legal Q&A on Tuesday, March 27, 2012

My civil union partner and I had a child using sperm from an anonymous donor. My partner gave birth to our son and, at the hospital, we were able to put both of our names on the birth certificate. Is it necessary for me to also adopt my son?

 In New Jersey, a child born to civil union partners or married same-sex partners will be able to have both partners’ names appear on the original birth certificate as parents, just as opposite-sex married couples are able to do. A birth certificate is a document issued by the Bureau of Vital Statistics, which records information including who is reported as being a parent. This document, however, does not constitute a legal finding and, therefore, leaves children vulnerable in a number of areas and circumstances.

Because civil unions and same-sex marriages are not recognized by the majority of states, a child may not be legally recognized as the child of the parent to whom they are not biologically related. This is because their relationship to their non-biological parent is based on the marriage or civil union of their parents. If a family moves to or travels to a state in which the relationship is not recognized, there could be dramatic consequences for the children of that relationship. In an emergency medical situation, for example, the non-biological parent could be unable to access a child and be prohibited from providing consent to treatment. The child could be unable to inherit from their parent if the parent dies without a Will. The child would also be unable to access federal benefits associated with their non-biological parent such as Social Security Benefits.

The child’s relationship with his or her non-biological parent could also be jeopardized if the parents separate and a custody dispute ensues. In some cases, biological parents have challenged the parental rights of their former same-sex partner and even moved to a state that is hostile to the rights of same-sex couples in hope of denying the non-biological parent a continuing relationship with their child.

While many states and the federal government may not recognize a parent-child relationship that is based on a birth certificate alone, every state and the federal government will recognize an adoption decree.

Second-parent adoption is the adoption of a child by the partner of a biological parent or a legal parent. A second-parent adoption allows a second parent to adopt a child without the "first parent" losing any parental rights. While second-parent adoptions are not available to same-sex parents in every state, New Jersey will allow a parent to adopt their partners’ child and this adoption will be recognized in every state regardless of whether the state would have allowed the adoption to be completed within its borders.

Once the adoption is complete, the adoptive parent will have the same rights as biological parent. The second-parent adoption creates a legal parent-child relationship with the second parent, bringing with it hundreds of rights and benefits including inheritance, custody, child support and medical decision-making.

Through the end of 2012, if you complete a second-parent adoption, you may be able to deduct eligible costs of that adoption from your tax liability through the adoption tax credit. Expenses that qualify for the adoption credit are all reasonable adoption fees, court costs, attorney fees, home study fees, traveling expenses, and other expenses directly related to the legal adoption of a child. For many individuals, if your modified adjusted gross income is less than $185,210, the entire cost of your adoption may be refunded to you through the credit. Consult your tax adviser or see IRS Form 8839 for more information about the adoption tax credit and to determine if you are eligible.

If you have specific about adoption, you may contact Jerner & Palmer, P.C. http://www.jplaw.com/

By: Rebecca Levin, Esq.

Rebecca Levin is an associate at Jerner & Palmer, P.C., with offices in Marlton and Philadelphia. Her practice is concentrated on Child Support & Custody, Divorce & Dissolution and Domestic Violence & Protection From Abuse.  

Nothing contained in blog should be construed as legal advice. Because each person's situation is unique and because laws differ significantly from state to state, you should consult a lawyer in your area to obtain legal advice appropriate to your situation.

Pursuant to certain Internal Revenue Service regulations, any tax advice contained in this website, including any links to document downloads, is not intended to be used, and cannot be used, for the purpose of avoiding penalties imposed under the U.S. Internal Revenue Code.

 

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