Though the question of joint adoption by an unmarried couple is not addressed expressly by the Rhode Island statutes on adoption or by any authoritative ruling by the State Supreme Court, joint and second parent adoptions have routinely been granted at the Family Court level.  Feel free to contact GLAD for more information, or if you encounter any difficulties.  Also, with the advent of marriage and civil unions in Rhode Island, a married or civil union couple can do a step-parent adoption.

Both joint adoptions and second parent adoptions ensure your child has two legal parents, which often provides greater comfort and security to everyone involved. Depending on your particular family situation, the law may not recognize both partners as legal parents without an adoption. In these cases, the non-legal parent needs special permission to make medical decisions for the child or attend school meetings, and is at risk of losing custody if the couple splits up.

Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from them even absent a will, and may be able to collect social security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

GLAD strongly recommends that you still do a second-parent adoption.  Because the marriage or civil union could encounter a lack of respect in some states, relying on the fact of the marriage or civil union alone to protect their children is not the best approach.  It is advisable to continue the practice of securing a second-parent adoption in order to obtain a decree of legal parenthood that should be generally recognized and is independent of the marriage or civil union.

This document can only provide general information about the need to establish legal parenthood independent of a marriage or civil union.  For you and your children, we cannot urge more strongly that you consult an attorney about undertaking co-parent adoption.  Contact GLAD for more information and to obtain referrals to adoption attorneys.

Miller-Jenkins Sidebar

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure the ongoing rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins.  This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.  Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant was issued.  Lisa and Isabella still have not been found.

GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to https://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins.

The rights of a co-parent were addressed by the Rhode Island Supreme Court in a ruling handed down in September, 2000.  When such a person can show she is a de facto parent, then she is entitled to a court hearing to address what custody, visitation and support arrangement is in the best interests of the child (Rubano v. DiCenzo, 759 A.2d. 959 (R.I. 2000)).  To be qualified as a de facto parent, the legal parent must have consented to and fostered the relationship between the child and the de facto parent; the child and de facto parent must have lived together; the de facto parent must have performed parental functions for the child to a significant degree; and the child and de facto parent must have developed a parent-child bond.

One other helpful point about the Rubano case is that it clarifies that a parenting agreement can be used to bar a parent from claiming that his or her former partner has no grounds for making a custody or visitation claim.  In some cases, parties to the agreement may also seek to enforce the agreements in court.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. For more information see GLAD’s publication Protecting Families: Standards for LGBT Families.

There are a number of steps that can be taken, although none offer the security of a second parent adoption.

1. Co-parenting Agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.

2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death (R.I. Gen. Laws § 33-15.1-7). These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.

3. Power of Attorney and Temporary Guardianship: This document is signed by the parent and authorizes another person (the attorney-in-fact and temporary guardian) to make a wide variety of decisions and arrangements for the child, including matters related to school, medical care and finances.

4. Co-guardianship: While there is no express provision in the law allowing for appointment of co-guardians, and although the practice varies to some degree across the State, some probate courts allow a parent to name the other non-legal parent as a co-guardian so that the other parent may secure medical attention for the child and act as a parent (R.I. Gen. Laws § 33-15.1-5). This status is not permanent, and may be terminated by a court (R.I. Gen. Laws § 33-15-18 (“The court shall remove any…guardian…upon finding that the [guardian] has not fulfilled, or is no longer able to fulfill, the duties of the appointment as set forth by the order itself and/or the limited guardianship and guardianship law.”)).