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Now that we can get married,
do we still need Second Parent Adoptions?
D.C. law was amended in 2010 to permit gay and lesbian couples to get married.
Under D.C. law, gay and lesbian couples who are married in D.C. are treated identically to opposite-sex couples who get married. However, married gay and lesbian couples are not recognized as married under Federal law. In addition, most states will not recognize a gay or lesbian couple as married, even if the couple were married in D.C.
D.C. law includes a provision stating that if a child is born to a woman who is married to or in a registered domestic partnership with another woman, both women's names can appear on the birth certificate.
As every parent knows, a birth certificate is a crucial and often-used document, important for registering a child for child care, school, and camp, as well as for obtaining a passport. Having both parents' names on the birth certificate is critically important. It permits both parents to properly care for the child, including authorizing medical care when needed. Therefore, D.C. law putting both parents' names on the birth certificates is a useful and positive improvement in the law.
But it is not enough to protect your child.
To understand why, you have to understand the important distinction in the law between ministerial acts by
a state (such as preparing a birth certificate) and court orders.
There is a Constitutional principle known as "comity". Comity is the
principle that one state should honor the ministerial acts of another
state as a matter of courtesy, even when it is not Constitutionally
required to do so. If D.C.'s Department of Vital Records issues a birth
certificate, that might be honored in another state ---- but under
principles of comity, the other states do not have to honor it.
On the other hand, under the Full Faith and Credit Clause of the U.S.
Constitution, a state must recognize the public acts, records, and
judicial proceedings of every other state. It requires that any final
judgment entered by the courts of a state acting consistent with state
laws and with constitutional requirements must be recognized and
enforced in every other state.
All of this means that other states and the federal government do not have to recognize both of you as parents simply because your names are on your child's birth certificate because the preparation of that birth certificate is a ministerial act
by the state. However, if you do a second-parent adoption, that adoption decree --- which is issued by a court --- must be honored by every state across the nation.
For more information, or to speak with a lawyer, please call us at (301) 656-6905 or send us an email at 2d_adopt@lsslawyers.com.
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