In the past few years, legal issues surrounding same sex adoption and parenting have exploded onto the national stage. Complicated cases hinging on biological ties, outdated adoption laws, and same sex marriage legalization seem to crop up every month. With no precedent in many states for these types of issues, each new case comes loaded with importance for gay and lesbian couples. Regardless of the progress gay rights advocates are making in these cases, the most common question for same sex couples remains: “How do I protect my parental rights?” We’ve attempted to untangle some of the basics of same sex adoption laws below, but the legal landscape is constantly changing for gay and lesbian adoption (down to particular counties in some states), so be sure to consult an experienced adoption attorney in your area to get the full scoop. So here goes – hold your nose and dive in.
The One Thing You Should Take Away from This Article
For the attention-challenged among us, here is the key takeaway: If you are a non-bio parent, completing a second parent adoption is the best and most legally binding way to ensure your parental rights in ANY state. Even if your state is gay friendly. Even if your name is on the child’s birth certificate. More about this later.
What the States Say
Each state has its own laws, provisions, and statutes – some that address same sex adoption specifically, some that don’t, and some that implicitly prohibit it by requiring adoptive parents to be in a marriage legally recognized by that state.
Example: John and Mike can’t be married in Louisiana. Louisiana doesn’t allow unmarried couples to adopt. Hence, John and Mike can’t adopt in Louisiana. (Basically, Lousiana is blowing a big raspberry at gay and lesbian couples who want to adopt.)
States that Allow Same Sex Adoption
According to a June 2011 report issued by the National Center for Lesbian Rights (NCLR), the following states have established laws (either through statutes or published appellate court opinions) that explicitly allow same-sex couples to adopt, either through a second parent adoption, domestic partner adoption or civil union adoption:
- District of Columbia
- New Hampshire
- New Jersey
- New York
- Rhode Island
Note: Hawaii and Delaware will begin recognizing civil unions on January 1, 2012. Civil union spouses in these states will be allowed to adopt jointly or using the stepparent (second parent) adoption procedures.
States that Prohibit Same Sex Adoption
According to the NCLR, the following states implicitly or explicitly prohibit gay and lesbian couples from adopting:
- Utah prohibits anyone cohabiting with an unmarried partner from adopting
- Mississippi prohibits adoption by same-sex couples
- Appellate courts in Kentucky, Nebraska, Ohio, and Wisconsin have said that second parent adoptions are not permissible under the adoption statutes in those states either for same-sex or different-sex couples who are not married. (Raspberries)
What the federal government says
While the federal government does not recognize same sex marriage (as we are all well aware), it does require that states give “full faith and credit” to the public acts, records and judicial proceeding of every other state. For our purposes, this full faith and credit clause (let’s call it FAC for short) is often cited when, say, couples who biologically have a child in a state unfriendly to gay adoption move away, obtain a second parent adoption in a gay friendly state, and then petition the original state to include a second parent on the child’s original birth certificate. The FAC clause has also been cited when gay or lesbian couples who adopted jointly in one state then split up, and one partner tries to get parental rights of the non-bio parent stripped in a state that does not allow gay adoption. Under FAC, the original adoption rights of the non-bio parent should stand, no matter what the laws are in another state.
Birth Certificate Vs. Second Parent Adoption
Importantly, states do not have to recognize other states birth certificates and licenses. Therefore, for a gay or lesbian couple to protect their parental rights in other states, a non-bio partner must obtain a court order establishing parentage or an adoption.
Adopting Out of State
Here’s where it gets complicated. Well, here’s where it gets MORE complicated. Let’s say a gay or lesbian couple lives in a state that does not allow them to adopt jointly. So they go to a state, say California, that will allow them to adopt jointly, without being a resident of the state. California requires out of state residents to comply with the interstate compact on the placement of children (ICPC). An ICPC requires the approval of both the sending and receiving state. If the prospective adoptive parents live in a state that will not permit adoption by a gay or lesbian parent, the ICPC may not be approved. This may make an adoption by a person or couple in a homophobic state difficult, if not impossible.
Still other rules, regardless of the legal snarls we’ve already been through when it comes to same sex parenting, and no matter if you are a gay couple or straight couple, prevent out-of-state adoptions altogether – no couple from another state can adopt a child within the state. Others say only by working with certain agencies can this happen, still others may say that only married couples from out of state can adopt, and so on. This is the advantage of working with an accredited, knowledgeable adoption agency and adoption attorney, who will be well versed in state laws.
Parentage vs. Adoption
In many states, non-biological and non-adoptive parents who are recognized by their state law as legal parents also have the option of obtaining a parentage judgment. This is sometimes called a “parentage action,” “maternity action,” “paternity action,” or action under the state’s Uniform Parentage Act (UPA).
Second parent adoptions, domestic partner adoptions, and civil union adoptions are currently the most common means used by LGBT non-biological parents to establish a legal parental relationship with their child.
A court order of parentage can serve a similar purpose to a second parent adoption (although, again, a second parent adoption is your best bet if possible). Parentage statutes can be used to establish parentage when a child is born to a couple that is recognized as married or in a civil union or comprehensive domestic partnership in their state. For example, transgender parents who are not biological parents can also obtain parentage judgments for children born to them and their spouse or partner if they are legally married or in a civil union or comprehensive domestic partnership. This is part of the reason it’s important for many LGBT activists that states pass gay marriage or civil unions. Currently:
- Same-sex couples may marry in Massachusetts, Connecticut, Iowa, New
Hampshire, New York, Vermont, and the District of Columbia.
- Although they do not currently allow same-sex couples to marry, California, New
Mexico and Maryland have indicated that they will recognize marriages between
same-sex couples validly entered into in other jurisdictions. Wyoming has allowed same-
sex married couples to divorce.
- Civil unions are recognized in Illinois, New Jersey, New York, Vermont (and Hawaii
and Delaware beginning January 1, 2012). States with comprehensive domestic
partnerships should also recognize civil unions.
Comprehensive domestic partnerships are available in California, the District of
Columbia, Nevada, Oregon, and Washington.
Same Sex Parenting Agreements
Same-sex couples who live in a state that does not yet permit second parent adoptions or parentage actions may want to draft a parenting agreement. While not ideal (as stated before, a second parent adoption is the best way to ensure parental rights), a number of courts have recognized that parenting agreements permitting another person to have visitation with a child are enforceable subject to a determination of the best interests of the child. These courts have acknowledged the importance of protecting parent-child bonds that have formed with the agreement of the child’s legal parent.
A parenting agreement should specify that, although only one of the parents is the legal parent, both parents consider themselves to be the parents of their child, with all of the legal rights and responsibilities that come with being a parent. The agreement should include language that clearly states the couple’s intention to continue to co-parent even if their relationship is dissolved. Couples may also want their parenting agreement to address child support, custody, and visitation issues.
Recent Wins for Same Sex Adoption Rights
When it comes to states that are unfriendly towards gay rights, Florida is typically at the top of the list. Until September 2010, it was the only state that explicitly prohibited homosexuals and bisexuals from adopting purely on the basis of their sexual orientation – single, coupled, or otherwise — thanks to the crazy crusades of Anita Bryant in the 80s.
However; in 2010, the state appeals court overturned Florida’s adoption ban and granted a gay male couple the right to adopt two brothers from foster care.
In addition, a statute in Arkansas that previously prohibited anyone cohabiting with an unmarried partner from adopting or being a foster parent was recently struck down as unconstitutional. (NCLR, 2011)
Present Complications: Adar vs. Smith
One case that has yet to be finalized concerns gay fathers who had a child in Louisiana, then moved to New York. In New York, they obtained a second parent adoption. They then petitioned Louisiana to re-issue the child’s birth certificate, which Louisiana should have been required to do under the full faith and credit clause. However, the state refused to do so because they do not recognize adoption by unmarried parents. The U.S. District Court ordered Louisiana to issue the birth certificate, and Lousiana appealed the decision. The 5th Circuit Court of Appeals surprisingly upheld Louisiana’s decision in 2011, essentially saying that to make the registrar re-issue the birth certificate would be making Louisiana violate its own adoption laws. Proponents of same sex marriage pointed out that Louisiana does not allow same sex marriage and does not recognize same sex marriage in other states, therefore making it impossible for the couple to adhere to the Louisiana requirement that the couple be married.