Do I need to adopt the baby I had with my domestic partner?

Do I need to adopt my own child?  Why it is important for Lesbian and Gay parents to achieve formal recognition of their parentage through the court. 

Although California has taken steps to provide legal protections to same-sex unions, the state of the law is unsettled and under close scrutiny by governing bodies in California, throughout the United States and abroad.  Even though your name is on the birth certificate, your legal parentage rights are not guaranteed if you are not biologically related to the child. 

The Full Faith & Credit Clause of the United States Constitution – which is what makes judgments portable from state to state – does not protect statuses. Being married is a “status” and this is why other states don’t have to honor California’s recognition of domestic partnerships, civil unions or same-sex marriages.  But, if you have a judgment declaring you the legal parent, then that judgment is entitled to Full Faith & Credit in every state in the country.  Therefore, in order to have your parental status fully recognized in every state, lesbian and gay parents must make certain they have court judgments saying they are parents.  This can be accomplished through a “second-parent adoption.”

Unfortunately, we have a recent example in our national law of why these judgments are essential.  In Miller-Jenkins v. Miller-Jenkins, the State of Virginia refused to recognize the parental rights of the non-biological mother of a child born to a lesbian couple who entered into a civil union in the State of Vermont before the child’s birth.  The Virginia trial court refused to acknowledge the parent-child relationship despite the fact that the child was born into an intact Vermont civil union.  Fortunately, the Virginia trial court decision was overturned on appeal, since a Vermont family court had already taken jurisdiction over the case and entered custody and support orders prior to the marriage being filed in Virginia.  However, this case is just one graphic illustration of why it is so important to gain legal recognition of parentage in the form of a judgment via a second-parent adoption or domestic-partner adoption.

Another reason why establishing legal parentage is imperative is the likely prospect of the federal government refusing to recognize parentage based on same-sex marriages, civil unions, or domestic partnerships even when there is no conflict between the parents.  A situation may arise where the non-biological mother/father dies when the child is young and the surviving mother/father applies for Social Security benefits based on the fact that the birth certificate lists both parents (including the late non-biological mother) as parents.  It is very possible that the federal government could deny Social Security benefits to the child on the grounds that the deceased partner’s claim of parentage “arises from” a same-sex marriage, which is denied federal recognition.  There are many other situations where the federal government may not recognize parentage without a legal judgment including an IRS audit or a possibility that the Department of Homeland Security would refuse to issue your child a passport with your partner listed as a parent. 

The unfortunate result of the above information is that lesbian and gay parents cannot rely on state-by-state recognition of their relationship to establish formal legal parentage of their children.  Each parent must do his or her own research to establish and secure an independent legal relationship with his or her child that is not dependent on the state recognition of his/her relationship with his/her spouse or partner. 

For more information about domestic-partner adoption, second-parent adoption, or step-parent adoption, call 310-598-6428 or email

Domestic Partner Adoption in California

Our clients often ask us the question, "Do I need to adopt my domestic partner's child?"  The answer can be complex and and the law is not fully settled in California.  In order to obtain full legal parental rights, we strongly advise our clients to adopt their domestic partner's child or children, especially if the child was born to their domestic partner before their partnership was registered.  

The current state of the law in California provides for a presumption that a child born into a domestic partnership is the legal child of both domestic partners, regardless of their biological connection to the child. Both partners can be included on the child's birth certificate in the hospital, and in theory, both partners have the same legal rights and obligations to the child.  

However, because the law in California is unsettled and federal laws as well as many other state laws do not recognize domestic partnership rights, Kesten Law strongly recommends that domestic partners obtain a court judgment declaring both partners to be the child's legal parents.  This can be accomplished through a domestic partner adoption.  This judgment is extremely important and critical to ensure that the child's legal relationship with both parents will be respected by other states and the federal government.  It is also important to help eliminate the possibility of conflict and litigation over this issue if the domestic partners separate in the future or if one partner should pass away.  Finally, this is a crucial step in proactively addressing any future issues that may arise with contesting individuals.  

If you have any questions regarding domestic partnership law or adoption in California, please click here to contact our office.  


Oprah's Half Sister Given Up for Adoption When Oprah was 7

When Oprah Winfrey was 9 years old and living with her father in Tennessee, her mother became pregnant with a daughter who was given up for adoption.  This was forty-seven years ago.

Oprah revealed on her talk show the “family secret” and introduced her half-sister, Patricia.

In October of 2010, the two sisters were reunited after Patricia embarked on a long search to find her biological family.  “It was one of the greatest surprises of my life,” said Winfrey.  “It left me speechless.”  

Patricia was born in 1963 in Milwaukee and lived in a series of foster homes until the age of 7.  She was then adopted, but said her childhood was “difficult” and she longed to be reunited with her birth mother.  

When Patricia was 17, she had a daughter, Aquarius, and then six years later, she had her son, Andre.  She was unwed and as a single mom, worked two jobs to provide for her family.  

When Oprah first heard that she might have a half-sister who was given up for adoption, she confronted her mother and asked for the truth.  her mother denied that she had a daughter and refused to discuss it further.

Finally, when DNA evidence proved that Patricia and Oprah were half sisters, Oprah’s mother admitted that she had, in fact, given up her daughter for adoption.  The three were reunited on Thanksgiving Day when Oprah drove to her mother’s home in Milwaukee, where Patricia was waiting.  

Click here to read the full story on  

5th Circuit Court of Appeals to Hear Case of Gay Dad's Names on Birth Certificate

Tomorrow a court of 16 federal appeals judges will decide whether Louisiana must put both parents’ names on birth certificates of children adopted by gay couples.  

Oren Adar and Mickey Ray Smith of San Diego are hoping that the 5th Circuit Court of Appeals will uphold a unanimous three-judge ruling and a district judge’s decision that both of their names must go on their son’s birth certificate.  Adar and Smith adopted a boy who was born in Shreveport in late 2005.  The two were living in Connecticut at the time and went to Louisiana to meet the mother, who gave them legal custody soon after his birth.  They adopted him in April 2006 in New York state.

Currently, the vital records laws in Louisiana do not permit for the inclusion of names of unmarried couples, who cannot adopt together in Louisiana regardless of sexual orientation.  

Similar cases have been considered in Virginia and Mississippi where the adoptive parents prevailed and their names were placed on the birth certificates.  

Sir Elton John Welcomes a Baby Boy via Surrogacy

Sir Elton John and his partner, David Furnish welcomed their son Zachary Jackson Levon Furnish-John on December 25, 2010.  The birth of their child is significant for multiple reasons in the social acceptance and understanding of surrogacy, adoption and family formation.

Attempting Adoption from Ukraine

Last fall, the couple visited an orphanage in the Ukraine and planned to adopt a 14-month-old boy named Lev and his HIV-positive brother Artyom.  After visiting the orphanage, John told reporters that “Having seen Lev today, I would love to adopt him.  I don’t know how we can do that but he has stolen my heart.  And he has stolen David’s heart and it would be wonderful if we can have a home [together]”. 

Although the public has seen many celebrities adopt babies from all over the world, seemingly with ease and sans red tape, celebrities, just like everyone else, are bound by the laws in various countries and must abide by strict regulations. 

After John announced his desire to adopt Lev and Artyom, Youth and Sports Minister Yuriy Pavlenko said that the adoption could not happen because adoptive parents must be married and because John is too old. 

The singer is 62 and Ukranian law requires a parent to be no more than 45 years older than an adopted child.  In 2005, John and Furnish formalized their relationship in one of the first legalized civil unions in Britain, but Pavlenko said Ukraine does not recognize gay unions as marriage.

Gay Rights in Ukraine

After John and Furnish were denied the ability to adopt Lev and Artyom from Ukraine, Svyatoslav Sheremet, head of Ukraine’s Gay Forum, a leading gay rights organization in Ukriane, said the regulations were depriving the boy of a chance to find a family and love. 

Overall, Ukraine is a conservative, mainly Orthodox Christian, country.  Households headed by same-sex couples in Ukraine are not eligible for the same legal protections available to opposite-sex couples. 

In a December 2007 survey by Angus Reid Global Monitor, 81.3% of Ukrainians polled said that homosexual relations were “never acceptable”, 13% answered “sometimes acceptable” and 5.7% “acceptable”. 


Despite reported heartbreak from their failed attempt at adoption in Ukraine, John and Furnish welcomed a baby boy via a surrogate this week into their family.  Their son, named Zachary Jackson Levon Furnish-John, was born on Christmas day, and weighed 7 pounds and 15 ounces. 

Although John and Furnish will not provide any details about their surrogacy arrangement and intend to protect and respect the privacy of the surrogate mother, their quest for a family has engaged the media and helped educate the public about adoption, surrogacy, gay rights and family formation.  

National Adoption Day 2010

It feels like a wonderful twist of fate that our blog is launched today, November 20, 2010, on the tenth annual National Adoption Day, an annual event that has resulted in the adoption of more than 30,000 children into their “forever” families between 2000 and 2009.

For our first blog entry, we would like to highlight some important statistics on adoption in the U.S.

Currently, in the United States, more than 114,000 children are living in foster care and are available for adoption.

Who are these waiting children?

  • There are an estimated 463,000 children in foster care in the United States, and more than 114,000 of them are waiting to be adopted.
  • These children enter foster care as a result of abuse, neglect and/or abandonment.  
  • The average child waits for an adoptive family for more than two years.
  • 19 percent spend 5 years or more waiting for a family (24,300 children).
  • The average age of children waiting for an adoptive family is 8.
  • More than 29,000 children reach the age of 18 without ever finding a forever family.

If you are interested in more information on the California adoption process, or would like to schedule a consultation with The Kesten Group, please call 310.598.6428 or email

*Statistics are provided by the U.S. Department of Health and Human Services, Administration and Families Administration on Children, Interim Estimates for FY 2008