Florida Second Parent Adoption and LGBT Adoption

A second parent adoption allows a non-biological, unmarried parent to adopt a child without the first parent losing any parental rights.

In Florida, this type of adoption was particularly significant for non-traditional families, as it provided legal recognition and security for the parental relationship with the child.

If you are a married same-sex couple, the best way to solidify the parental rights of the non-biological parent is through a stepparent adoption. This is true even if you are both on your child’s birth certificate.

Recent Florida court cases have made it more difficult for unmarried, non-biological parents to adopt their partner’s child through a second parent adoption. As a result, often the best route for an unmarried couple looking into a second parent adoption is to complete a stepparent adoption after marriage.

What is Florida LGBT Adoption?

Florida gay adoption refers to the legal process allowing same-sex couples to adopt children in the state. Since 2010, when Florida’s ban on gay adoption was overturned, LGBTQ+ individuals and couples have had the same adoption rights as heterosexual individuals and couples in Florida, subject to the same screening and approval processes as any other prospective adoptive parents.

Is Same-Sex Adoption Legal in Florida?

In Florida, same-sex adoption is a legal proceeding that grants full parental rights to the non-biological spouse in a same-sex relationship. Same-sex adoption is fully legal in the state of Florida.

While LGBT adoption under Florida law used to be outlawed by Florida statutes, in 2010 the Florida Court of Appeals ruled that the law banning gay and lesbian people from adopting was unconstitutional. Then in January 2015, same-sex marriage was legalized as a result of the Obergefell v. Hodges Supreme Court decision. The legalization of marriage then allowed same-sex couples to complete stepparent adoptions.

Recent Supreme Court Decision

On June 24, 2022, the U.S. Supreme Court overruled Roe v. Wade, taking away a right that had been available for decades. As a result, many same-sex couples are wondering how best to protect their families. They are concerned about what the Supreme Court could do next regarding marriage equality and gay and lesbian parental rights.

Florida and national LGBT rights organizations recommend that LGBT parents do everything they can to solidify the legal rights of the non-biological parent. By far, the most important step gay and lesbian couples can take to solidify the parental rights of non-biological parents is a stepparent adoption or second-parent adoption. Stepparent adoptions are for married same-sex couples, while second-parent adoptions are for unmarried couples. In either case, the couple obtains a court order that grants full and equal parental rights to the non-biological parent.

Due to biology, the issue is more pressing for families with two women than with two men. Lesbian couples are more likely to be in a situation where one woman is the biological parent while the other woman is not.

Even if both women are on the birth certificate for their child, a court judgment of adoption has much greater staying power than a mere birth certificate. In theory, a state legislature could invalidate a birth certificate or refuse to recognize birth certificates with same-sex couples as parents. But court judgments must be afforded full faith and credit by all states.

Types of LGBT Adoption

Can gay couples adopt in Florida? Yes, whether as a couple or a single person. That used to not be the case as the law previously expressly disallowed gay people from adopting.

There are two ways to do this: adopt through the Florida Department of Children and Families (DCF) or through a private agency or person.

Private Agency

Adopting through a private agency lets you find a match with specific criteria important to you, but it’s a lot more expensive. Adopting through DCF (also called public agency adoption) is a lot cheaper: Florida will reimburse your adoption expenses (including attorney’s fees) up to a certain amount, plus provide many other benefits to you.

Alternatively, if you are able to match with a birth parent through personal connections and social media, you can take advantage of private adoption without an agency.

DCF Adoption

Adopting through DCF means going through classes, several interviews, questionnaires, and a home visit to ensure you are a good candidate.   After a home study, DCF will place the child in your home during a trial period. Once this trial period has finished, they’ll sign off on the adoption. During the entire process, you work with your adoption lawyer to prepare documents for an adoption hearing in front of a judge.

DCF no longer asks about the applicant’s sexual orientation–it’s not even on the form. But keep in mind a couple of things:

• DCF is still going to favor married couples over single parents, gay or not.
• Prior to January 2015, DCF would not approve a joint adoption by a same-sex couple–now they do.

Private adoption is less paperwork and hassle, but you’ll generally have to pay the birth mother’s expenses, and you still have to do a home study, since that’s required by Florida law. Because there are no reimbursements, private adoptions are a lot more expensive, ranging from $10,000 to $30,000.

If a same-sex couple adopts from DCF as a couple, then both adopting parents will be recognized as the child’s parents through the same adoption proceeding.

Stepparent Adoption

A stepparent adoption allows one person to adopt the child of their spouse. The most common kind of same-sex couple needing a stepparent adoption are two women where one woman is the biological parent, and the other woman is the biological parent’s wife. Through stepparent adoption, the current non-legal parent will adopt the child and become a full legal parent, yet the current legal parent keeps their own parental rights.

Before gay marriage in Florida, same-sex couples could not do stepparent adoptions, as stepparent adoptions were limited to married couples. Instead, couples would do something called a Florida second parent adoption, which was generally more expensive, more paperwork, and riskier. But with the availability of stepparent adoptions for married same-sex couples, stepparent adoption will usually be the better choice.

Who Gets a Stepparent Adoption?

In Florida, our most common clients requesting a stepparent adoption (formerly, second parent adoption) are lesbian couples where one partner is the biological parent. Other people that will also want to do a stepparent adoption include:

• Gay male couples where a surrogate mother has given birth to a child using one of the men’s sperm.
• Couples where one partner has previously adopted a child on their own.
• Couples where one partner has a biological child with a previous relationship, and the other biological parent has or wants to give up their parental rights.

Unless you use an anonymous sperm donor, it is generally difficult (but possibly doable) to get a stepparent adoption without consent from the third-party biological parent. Generally, you can’t do a step-parent adoption if there are already two legal parents (for example, an ex-spouse) without having the other legal parent terminate their parental rights — a child can’t have three parents in Florida.

Stepparent Adoption Effects

Some married same-sex couples tell me that they assume that taking care of their spouse’s or partner’s child gives them legal rights to that child. This is a mistake. The only sure way to secure these legal rights is through adoption.

In general, same-sex couples in Florida should consider stepparent adoption for three reasons:

1. To protect the current legal (often biological) parent.
2. To protect the rights of the adopting parent.
3. To protect the rights of the child.

Without a stepparent adoption, the current legal parent can’t rely on the current non-legal parent’s legal duty to provide for their child. This is especially important if the partners break up: a stepparent adoption can make the second parent help provide for the child even after the divorce or break up.

Of course, this works both ways. The current non-legal parent will also feel more secure in their legal right to care for the child. If the couple breaks up, this second parent will still be able to have a relationship with the child.

Finally, the child herself is guaranteed the legal support of two parents, regardless of what happens to the couple’s relationship.

Pre-Adoption

Florida finally allows a biological mother to put her wife’s name on the child’s birth certificate at birth. However, it is strongly recommended by our office and the national gay rights organizations that lesbian married couples do a stepparent adoption after the child’s birth to ensure that the biological parent’s wife has full equal parental rights to the child. Other states or countries may not recognize a birth certificate alone as granting legal parentage to the non-biological mother without a stepparent adoption.

Post-Adoption

After the stepparent adoption is complete, both of the names of the same-sex couple will be listed as parents. That means both moms or both dads. Once the stepparent adoption is complete, or if the couple adopts jointly at the same time, a new birth certificate is issued by Florida showing the names of the new legal parents. The names will be listed as “Parent 1” and “Parent 2.”

Stepparent Adoption Process

The first step in a stepparent adoption is filing the adoption petition and related paperwork.

Next, if parental rights need to be terminated, we’ll work to obtain consent from the parent whose rights are being terminated. If you used an anonymous sperm donor, we might not have to terminate anyone’s rights. With a known donor, some couples still want these third parties to be involved in the child’s life, which is completely fine. However, these third parties must generally still terminate all legal rights they have to the child.

Once all that’s filed, we complete a putative father registry search, a legally required check with every adoption to see if anyone else is claiming to be the father. Next, we schedule an adoption hearing with the judge assigned to your case. Finally, we prepare the judgment and the paperwork to change the birth certificate.

FAQs About Adoption by Same-Sex Couples