- December 6, 2015
Imagine you are at work one day when your cell phone rings. It is your daughter’s school, calling to tell you that she has fallen off the monkey bars and broken her arm. She is currently in an ambulance en route to the hospital. You rush to meet her there, where you are greeted with an array of hospital and insurance paperwork, requiring your permission to treat your child and bill your insurance company. Finally you are able to see your daughter and comfort her while the doctors and nurses treat her.
Now imagine what would happen if you were not legally considered your daughter’s parent. You could not give consent for her treatment; perhaps you would not even be allowed to see her. If you were in a same-sex relationship and only your partner was your daughter’s biological or adoptive parent, you would not have the same rights that a legal parent does. These rights include the right to legal and physical custody and visitation and the right to make decisions for your child about such important matters as health care, education, and religion.
What Is a Second Parent Adoption?
In many same-sex relationships, often only one partner has a biological connection to or has legally adopted a child, even though both partners act as parents. Second parent adoption provides a mechanism for same-sex couples to both be considered their children’s legal parents. With a second parent adoption, the so-called “second parent” can adopt without impacting the other parent’s legal rights. Both parents would therefore have the same rights to custody and to make important decisions about their children’s welfare. Additionally, should the couple split up one day, both would have the same rights to seek custody, visitation and support.
The Right to Child Custody for Same-Sex Couples
The good news for many couples is that following the U.S. Supreme Court’s June 2015 decision in Obergefell v. Hodges, same-sex marriage is legal throughout the country, including in South Carolina. Married opposite-sex couples are presumed to be the legal parents of any children born during the marriage. It remains to be seen whether courts will extend this presumption to children born to married same-sex couples. However, married same-sex parents can now avail themselves of the stepparent adoption provisions found in Section 63-9-1110 of South Carolina’s adoption statute. A stepparent adoption is easier to accomplish than a traditional adoption because the statute waives many of the usual requirements, most significantly the necessity of having a home study.
A second parent adoption, then, is for same-sex parents who choose not to marry. Some states explicitly permit second parent adoptions, either by statute or by court decision. South Carolina is not among these states. However, because South Carolina’s adoption law states that any resident may petition to adopt a child, state law does not prohibit such adoptions. But because the law is not clear and the adoption process can be complex, having an experienced family lawyer in your corner can be invaluable.
Consult a Greenville Family Lawyer
If you have questions or concerns about your or your partner’s legal status regarding your children, it is best to seek the advice of an knowledgeable family lawyer. Greenville Family Law attorney Robert Clark is adept at handling all manner of family law cases. Contact us for a consultation today.
