Unmarried Couples and Adoption

In addition to, or instead of, having your own biological child, you and your partner might want to adopt a child. Adoption is a court procedure by which an adult legally becomes the parent of someone who is not their biological child. Adoption creates a parent-child relationship recognized for all purposes—including child support obligations, inheritance rights, and custody.

Do You Need to Be Married to Adopt a Child?

Adoption is primarily governed by state law. As a general rule, any adult who is found to be a "fit parent" may adopt a child as long as the child is free for adoption, meaning that appropriate consents have been given. For adoptions of children (other than second parent (see below) and stepparent adoption), that means that both legal parents have had their parental rights terminated or have consented to the child's adoption.

There is only one state that prohibits unmarried people from adopting: Utah. (Utah Code § 78B-6-117 (2022).) For all other states, the question is whether an unmarried couple can jointly adopt a child.

Joint Adoption by an Unmarried Couple

A few states' laws explicitly allow unmarried couples to jointly adopt a child. For example, in New York, "unmarried intimate partners" can jointly adopt. (N.Y. Dom. Rel. Law § 110 (2022).) And in Delaware, state law recognizes the right of a couple who cohabitates to jointly adopt. (Del. Code tit. 13, § 903(2)(d) (2022).) In some other states, such as Washington, the courts have interpreted statutory law to allow joint adoption by unmarried couples.

When an unmarried couple jointly adopts a child, both parents are legal parents. This means both have equal legal responsibilities to raise and support the child. If the couple separates, each has the right to petition a court for custody of (or visitation with) the child, and each has an obligation to provide child support.

A majority of states, though, allow joint adoption only by married couples. This doesn't rule out the possibility that both people in a committed relationship won't ultimately be able to adopt the same child, though. Rather, it means that in many cases, one partner might have to adopt the child first, and then the other partner might be able to later petition to adopt the child as a "second parent."

Second Parent Adoption

If your state doesn't allow unmarried couples to jointly adopt a child, "second parent" adoption might be an option. (This process is called "co-parent adoption" in some states.) After one partner has adopted the child (the "first" parent), the other can petition to adopt as a second parent. The second parent adoption does not terminate the first parent's parental rights, and, once the adoption is finalized, the second parent will have parental status equal to the first parent.

Not all states allow second parent adoption. According to Family Equality, 20 states allow unmarried couples to petition for second parent adoption. And, in some states, it might be more difficult for same-sex couples to petition successfully for a second parent adoption. For a detailed breakdown of second parent adoption with a focus on adoptions by same-sex couples, check out the National Center for Lesbian Rights' publication Legal Recognition of LGBT Families.

What to Consider When Adopting as an Unmarried Couple

Adoption agencies are allowed to create their own rules about who can adopt and under what circumstances, as long as they don't run afoul of state law. You might find that adoption agencies are biased against unmarried couples, or make it more difficult for unmarried couples to adopt.

To overcome any potential bias you might encounter, be prepared to explain why you haven't married and to make a good case for your fitness as a parent. In general, you should expect to do extra work to prove that your home is a stable and healthy environment for raising children. A local social service agency will conduct a home study and interview both partners and then report to the court, which must approve adoptions. You might have a longer wait for a child, or you might have to broaden your ideas about the age and type of child you want to adopt.

If you believe you might encounter a lot of roadblocks with an agency adoption, you might want to explore other types of adoption, such as identified or independent adoption.

Other Potential Adoption Requirements

Aside from meeting your state's laws regarding marital status and general fitness to be a parent, you might have to meet other requirements in order to adopt a child. Many states require prospective parents to:

• be of a minimum age (usually 21)
• be in good health
• have the financial ability to support a child
• pass a criminal background check
• provide references and pass a home study
• have lived in the state for a certain amount of time, and
• have had the child living with them for a minimum amount of time.

Every state's laws on adoption are different, and it's easier to adopt in some states than others. To find out the exact requirements for adoption where you live, it's best to contact a local adoption attorney or agency. Although internet research on the topic is helpful, it's often inaccurate—the laws change quickly, and many rules about adoption are established by case law, making them particularly difficult to understand without assistance from a local professional.

More Information on Adoption

For an overview of legal issues involving adoptions, including different options, such as agency and private adoptions, see the Adoption topic on Nolo's website.

The U.S. government has published a helpful pamphlet titled, Who May Adopt, Be Adopted, or Place a Child for Adoption? You can also look up your state's adoption statutes on the Child Welfare Information Gateway's website.

Legal Help with Adoptions

Social service and government agencies often discriminate against unmarried couples, and adoption proceedings can often be complex (particularly if it's a private adoption). Consider getting some legal advice before you and your partner try to adopt. For a list of local family law attorneys, see Nolo's Lawyer Directory.

The National Council for Adoption's website is also a great resource—it maintains information about adoptions as well as a page to help people find adoption agencies and attorneys.