SECOND-PARENT ADOPTIONS:
Since 1993, the Massachusetts Supreme Judicial Court has recognized the right of gay and lesbian couples to adopt children (Adoption of Tammy, 416 Mass. 205 (1993)) and countless same sex couples have successfully adopted children. Some gay and lesbian couples adopt children who are not biologically related to either party, while other's adopt children who have been born to or previously adopted by one of the partners. Although gay, lesbian and unmarried heterosexual couples share the same legal rights as legally married couples to adopt children, there are nonetheless additional hurdles that must be overcome.

Although many other states still prohibit adoption by gay and lesbian couples, once an adoption has occurred, it is given full faith and credit in all other states in the nation.

CO-PARENTING AGREEMENTS:
Many lesbian and gay couples, as well as all unmarried partners, may wish to clarify in writing their joint plan for custody and support of children during their relationship as well as upon a future dissolution of their partnership. This is highly recommended not only as a potential way to prevent expensive disputes between co-parents or against family members, but as a means to allow couples to think through their definition and goals for a partnership. Co-parenting agreements are beneficial even for those planning to have children in the future because the agreement will provide guidance to the couple should disputes or issues arise prior to adoption or insemination and can be referenced in the couple's co-parent adoption petition as further evidence of their commitment to cooperatively parent a child. In the event that the couple separates prior to the finalization of the co-parent adoption, the agreement will provide documentation of the non-biological ("de facto") parent's status, which is a condition precedent for ensuring standing to pursue visitation rights under current Massachusetts' case law.

Massachusetts' courts are not required to enforce provisions in a private co-parenting contract that concern the rights of minor children. In fact, any private agreement between parents concerning the care and custody of minor children is subject to modification by the court in accordance with the child's best interest. Although not guaranteed to be enforceable, such agreements are essential to protect the non-biological parent's interests should court intervention be needed to resolve a future dispute between the parties.

Recent case law, E.N.O. v. L.M.M., 429 Mass. 824 (1999) defines a de facto parent as the following type of individual:
• Is not biologically related to the child, but has participated in the child's life as a family member;
• Is actively involved in the decisions to bring the child into the world;
• Resides with the child;
• Provides care to the child that is equal to or greater than the care provided by the legal parent for no compensation, with the consent and encouragement of the legal parent;
• Shapes the child's daily routine;
• Disciplines the child;
• Provides for the child's educational and medical care; and
• Serves as a moral guide to the child.

All material on this site is intended for general information purposes only and does not constitute legal advice. For legal issues that arise, the reader should consult legal counsel. Responses to inquiries whether by e-mail, telephone or other means do not constitute legal advice nor do they create or imply the existence of an attorney-client relationship.

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