1) Can my same-sex partner and I adopt a child together?

Absolutely. (Or almost always!) This is a very basic question, but you should feel reassured. In Massachusetts, adoption by two unmarried people of the same gender is allowed, as established in 1993 in the case named Adoption of Tammy. Unless there is some other, independent reason for disallowing the adoption, you and your partner should be able to adopt.

It should be noted that when you and your partner adopt a child together, even if one of you is already the biological or adoptive parent of the child, you are still both adopting that child together. The legal parent of the child is not required to surrender their parental rights to adopt their child, as was previously required; however, the adoption proceeding must address the suitability of both co-parents for the adoption. You should also be aware that if you are adopting a child from another state or another country where co-parent adoptions are not allowed, one of you may need to initially adopt as a single parent. The two of you would then proceed with the co-parent adoption at a later time. If you are planning to adopt a child, either as a single parent or jointly with your partner, you should, of course, discuss the appropriate procedures with your adoption agency and/or with your lawyer.

2) Are the legal effects of a co-parent adoption different from other adoptions?

No. What we refer to as a "co-parent" adoption is not a legal term; rather it is a phrase used when the prospective adoptive parents are a same-sex couple. This is no different, really, than referring to "single-parent" adoptions or "stepparent" adoptions. The legal effect of any of these adoptions is the same. That is, an adoptive parent has all the same rights and obligations as a biological parent. That means that if you and your partner adopt, regardless of whether you should later split up, each of you has the same right to have the child live with you, and each of you will be obligated to support that child, regardless of whether the child lives with you.

You should be aware that having the same rights and obligations does not mean that each of you will have equal time with the child or pay the same amount of support. Those factors are based on the best interests of the child (as ultimately determined by a judge) and on each of your financial status. The important point here is that when you do a co-parent adoption, the biological parent is giving the co-parent the same rights to have time with and make decisions for the child, and the co-parent is assuming all legal obligations to support and care for the child. It should also be noted that without the adoption, the co-parent would have no legal right to continue seeing the child if, for example, you split up; nor would the co-parent have any obligation to support the child.

3) Will I have to have a home study?

It depends. If you are adopting a child who is not the biological or previously adopted child of one of you, you will have to go through the same steps as any other adoptive parent, including a home study by an authorized agency. If you are adopting a child who is the biological child of one of you, or who has been previously adopted by one of you, you can seek to have the home study waived.

4) What is involved in a home study and what it costs?

A home study is an evaluation of you as prospective adoptive parents, of your family and of your home. If you are already living together and raising the child of one of you together, depending on the agency conducting the home study, the scope of the home study may be much less. The cost of the home study can range from about $1,200 to $3,500 depending on the scope and on the agency which is conducting the study.

5) Will the home study be waived?

Hopefully. We have been successful in having home studies waived when the child to be adopted is the biological or adopted child of one of the petitioners. ("Petitioners" is the term which refers to the adoptive parents who are filing the petition for adoption). We have made legal arguments as to why a home study can and should be waived in this circumstance, and to support these requests, we have submitted letters or affidavits from the petitioners, their family members, medical providers, colleagues and friends.

In the case of Adoption of Galen, the Probate Court Judge refused to waive the home study, and the petitioners appealed. The Supreme Judicial Court, the highest court in Massachusetts, confirmed that, where two women were seeking to adopt the biological child of one of them, the probate court judge could not refuse to waive the home study just because the petitioners were of the same gender. That case was sent back to the probate judge either to waive the home study or to give specific reasons for denying the waiver.

The legal arguments for waiver of the home study under the statute are most compelling where the child to be adopted is the biological child of one of the petitioners. However, many of the same arguments can be made where the child to be adopted is the adoptive child of one of the petitioners. We have been successful in having the home study waived in this situation, but that issue was not specifically addressed in the recent decision in the Galen case.

6) Are there other requirements for adoption besides the home study?

Yes. For example, the law generally requires that notice be given to any biological parent before the adoption can be completed. Under the law, a sperm donor has legal rights that must be terminated before the adoption can be completed -- either by his signing a surrender, or by publication of legal notice, usually in a designated newspaper. In fact, even if the sperm donor has signed a surrender, the court might require publication (which can be somewhat costly and take a number of weeks, not to mention embarrassing), unless a motion is made to waive publication. And even in the case of an anonymous sperm donor, whether through a doctor's office or a sperm bank, the court will probably require publication unless a motion to waive publication is allowed. In addition, in certain courts, some judges have required that a guardian ad litem (representative to act in the best interests of the child) and/or a separate attorney for the child be appointed -- at your expense. Again, you can seek waiver of these requirements by filing motions with the court.

7) Do we need a lawyer and what will it cost?

Yes. I would definitely recommend that you have a lawyer for a co-parent adoption. As discussed, there can be many hurdles to jump through. A lawyer familiar with the adoption process, and the particular court's procedures, can make a difference in helping you present your case in the best light, as smoothly and quickly as possible. If you do need to have a home study, a lawyer may be able to help match you with an appropriate agency, and provide information which could be helpful in preparing you for the evaluation and in submitting the home study to the court. In fact, some courts require that you have a lawyer represent you, (unless you are working with an authorized agency which will help you with the adoption process in Court).

Typical fees for filing the adoption, requesting the waivers, and the finalization hearing can range from about $1,400 to $2,000, depending on the experience of the lawyer and the particular circumstances. This does not include the cost of any appeal or other unusual or unexpected situation; nor does it include the cost of a home study if one is required.

8) Can I file for adoption before the baby is born?

No. There is a requirement that the child has resided with you for six months. As such, the child would have to be six months old before the adoption is finalized -- although you can file for adoption any time after the child is born. In addition, you can make a motion to waive the six-month residency requirement, especially if there is a compelling reason, such as the availability of insurance coverage, issues of inheritance or the existence of an older child who has already been adopted.

9) How long will the adoption process take?

About two months. If all of the motions for waivers are allowed, it takes about two months from the date of filing the adoption petition to the date of finalization. Depending on the specific court's procedures and the particular judge's schedule, the adoption can be finalized more quickly. Of course, if there are any complications, or if an appeal is necessary, it can take much longer than two months.

10) How many times will we have to go to court and what steps do we have to go through to do the adoption?

It depends. But you will probably have to go to court only once. To initiate the adoption, you and/or your attorney will need to complete a number of forms, and you will need to file an original birth certificate for the child with the court. After filing, certain requests will be sent out to various agencies to see if you have a criminal record or if the child is listed as a missing person. At the time of filing, you would usually also have submitted motions for waivers and supporting documentation, and if you are seeking waiver of the requirements discussed above, a hearing will be scheduled. In the past, the petitioners were required to appear at that hearing; now, typically, only the attorney has to appear for the waiver hearings. Once the waivers have been granted (or all requirements have been complied with), you and your child will appear in court for the finalization of the adoption. The finalization hearing is usually conducted in the judge's chambers (office) and is almost always a very happy and meaningful experience!