The Role of Adoption and Surrogacy Agreements in Same-Sex Divorce
The legalization of same-sex marriage in the United States brought long-overdue legal protections to same-sex couples. However, when a same-sex marriage ends in divorce, issues related to adoption and surrogacy agreements often make the process more complex than many realize. These agreements play a critical role in determining parental rights and responsibilities after divorce, and understanding them is essential for protecting both the parents and the children involved.
At The Law Offices of Kelly Berton Rocco, we understand that same-sex divorce often involves unique family structures. Our attorneys work closely with clients to navigate custody, parenting time, and child support matters, including those arising from adoption and surrogacy arrangements.
How Adoption Impacts Same-Sex Divorce Proceedings
Adoption has been an important avenue for many same-sex couples seeking to build a family. Whether through second-parent adoption, stepparent adoption, or agency adoption, legally formalizing the parent-child relationship is critical. In a divorce, the existence—or absence—of a legal adoption can significantly affect custody and parenting rights.
Legal Parentage Through Adoption
In New Jersey, once a same-sex partner adopts a child, that parent has the same legal rights and obligations as a biological parent. If both parents have adopted the child, they are considered equal under the law. In a divorce proceeding, the court treats both adoptive parents identically to biological parents when determining custody, parenting time, and child support obligations.
This legal equality is crucial in ensuring that both parents can continue to have a meaningful relationship with the child after divorce. It also guarantees that both parents must support the child financially, even if the child is not biologically related to one or both parents.
Risks for Non-Adoptive Parents
Problems arise when only one partner legally adopts the child. If the non-adoptive parent did not complete a second-parent or stepparent adoption, they may lack legal standing to seek custody or visitation during the divorce. Even if the non-adoptive parent has acted as a parent in every way, the court may not recognize their rights without a formal legal relationship.
This situation can be devastating, as the child-parent bond may not receive legal protection. To avoid such risks, same-sex couples are strongly encouraged to complete a legal adoption, even when both partners are active caregivers.
Adoption and Child Support
Just as adoption establishes custodial rights, it also creates financial obligations. In a divorce, an adoptive parent can be ordered to pay child support. Courts in New Jersey follow state guidelines to ensure that children’s financial needs are met, regardless of the biological ties between parent and child.
The Complexities of Surrogacy Agreements in Same-Sex Divorce
Surrogacy is another way many same-sex couples have built families. In surrogacy arrangements, one or both intended parents may have a biological connection to the child. However, surrogacy can create complex legal issues that come into focus during a divorce, especially if parental rights were not clearly established beforehand.
Types of Surrogacy
There are two main types of surrogacy:
- Traditional Surrogacy: The surrogate uses her own egg, making her the biological mother.
- Gestational Surrogacy: The surrogate has no biological link to the child; an egg and sperm from the intended parents (or donors) are used.
Gestational surrogacy is more common among same-sex couples, as it allows both intended parents to establish parental rights without a biological connection between the surrogate and the child.
Legal Protections in Surrogacy Agreements
In New Jersey, gestational surrogacy is governed by the New Jersey Gestational Carrier Agreement Act, enacted in 2018. This law allows enforceable gestational surrogacy contracts under strict guidelines. The intended parents must secure a pre-birth order establishing their legal parentage, removing the surrogate’s parental rights before the child is born.
Surrogacy agreements are critical because they determine legal parentage before the child is born. When a pre-birth order is in place, the intended parents are recognized as the legal parents for purposes of custody, support, and all other parental responsibilities in the event of a divorce.
If no surrogacy agreement or pre-birth order exists, custody and parental rights can become a complicated legal battle during divorce proceedings.
Challenges in Divorce Without Legal Surrogacy Agreements
If a couple fails to formalize legal parentage through a surrogacy agreement and pre-birth order, courts may treat only the biological parent as the legal parent. This can create heartbreaking custody disputes, especially when both parties intended to raise the child together.
In these cases, the non-biological, non-legal parent may need to seek visitation rights through a “psychological parent” claim. New Jersey recognizes the doctrine of psychological parenting, allowing a person who has acted as a parent to seek visitation or even custody under certain circumstances. However, pursuing this claim can be emotionally draining and legally complex.
Custody and Parenting Time Considerations
In a same-sex divorce involving adopted or surrogacy-born children, New Jersey courts apply the same custody standards used in heterosexual divorces. The court’s primary concern is the best interests of the child.
The factors courts consider include:
- Each parent’s ability to provide a stable home environment
- The relationship between the child and each parent
- The parents’ ability to communicate and cooperate regarding the child
- The needs of the child, including any special needs
- The child’s preference, if the child is of sufficient age and maturity
When both parents are legal parents through adoption or surrogacy agreements, custody disputes proceed like any other custody case. Courts favor arrangements that maintain strong relationships with both parents whenever possible.
Financial Support Obligations
Financial obligations in same-sex divorces involving children mirror those in any other divorce. Both legal parents are responsible for providing financial support, and child support is determined using New Jersey’s Child Support Guidelines.
Factors affecting child support calculations include:
- The income of both parents
- The amount of time the child spends with each parent
- Health care, daycare, and educational expenses
Failure to have a legal adoption or surrogacy agreement in place can complicate child support obligations, as courts generally cannot order child support from a person without legal parental status.
The Importance of Legal Representation
Given the complex issues that adoption and surrogacy agreements can present in same-sex divorce, working with an experienced family law attorney is essential. At The Law Offices of Kelly Berton Rocco, we have more than 40 years of collective experience guiding clients through sensitive family law matters.
Our firm helps same-sex couples:
- Secure their parental rights through adoption and surrogacy
- Protect custody and parenting time during divorce
- Ensure financial support arrangements are fair and appropriate
- Resolve disputes over parental standing when necessary
We understand the emotional weight of these cases and are committed to helping clients achieve outcomes that protect their families and provide stability for their children.
Adoption and surrogacy agreements are not just paperwork; they are essential protections for same-sex couples and their families. During a divorce, these documents can determine whether a parent retains custody, parenting time, and financial responsibilities for their child.
Without proper legal protections, non-biological parents may find themselves fighting for basic parental rights. With the right legal steps in place, same-sex parents can move forward with confidence, knowing that the law recognizes their commitment to their children.
If you are facing a same-sex divorce involving adoption or surrogacy issues, or if you need help securing your parental rights, contact The Law Offices of Kelly Berton Rocco today. Our compassionate, knowledgeable team is here to guide you through every stage of the process and help you protect what matters most.
