Gay and Lesbian Adoption and Parenting
The legal rights of same-sex parents, from adoption to coparenting
to second parent rights.
There are special issues for lesbian and gay singles and couples who
want to adopt or who are raising children. This article addresses adoption
for LGBT singles and couples, as well as parenting and the rights of
second parents.
Adopting Children
Lesbians and gay men bring children into their lives in a number of
ways. In lesbian couples, frequently, one partner gives birth to a
child and the other partner -- the second parent -- becomes a legal
parent through second parent or stepparent adoption, if that’s
permitted in the state where they live. Gay men can do virtually the
same thing by using a surrogate to carry a child born from one partner's
sperm and a donor egg.
In states that allow it, same-sex couples sometimes adopt children
jointly, so that both partners are legal parents from the beginning.
Lesbian and gay singles and couples in these states can adopt children
through agencies or independent adoptions, and even through international
adoptions (though international adoption will be more difficult now
that the United States has adopted the Hague Convention).
For many same-sex couples, joint or second parent adoption isn't an
option. A few states, such as Florida, bar same-sex partners from adopting.
For a state-by-state overview of second parent adoption laws and cases,
visit the Lambda Legal Defense and Education Fund's website at www.lambdalegal.org.
Know Your Local Laws |
Because it is essential that you know your local law
before you decide to raise a child together, we strongly
recommend that you seek legal advice when you are considering
parenting. Search out gay and lesbian parenting groups
in your state. If you don't know where to start, try
the Queer Resources Directory (www.qrd.org),
which includes many parenting sites. The following organizations
can also provide you with information: The National Center
for Lesbian Rights (www.nclrights.org),
Lambda Legal Defense and Education Fund (www.lambdalegal.org),
and Gay and Lesbian Advocates and Defenders (www.glad.org). |
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Legal Parents: Rights and Responsibilities
A legal parent is a person who has the right to live with a child
(full or part time) and to make decisions about the child's health,
education, and well-being. A legal parent is also responsible for financially
supporting the child. When a married couple has or jointly adopts a
child, both partners are automatically considered legal parents. As
a result, even if they split up, they both remain legal parents.
Some same-sex couples are fortunate enough to live in a state where
they can jointly adopt a child -- or where one partner can adopt the
biological child of the other through a second parent, stepparent,
or domestic partner adoption. These procedures ensure that both partners
are considered legal parents of their child.
Now that same-sex marriage is legal in Massachusetts, same-sex parents
should be considered legal parents of the child from the time of the
child’s birth, like heterosexual married couples. The same is
theoretically true in Connecticut, Vermont, New Hampshire, New Jersey, Oregon,
and Washington, D.C., which grant legal parent status to partners of
birth parents when a child is born during a domestic partnership or
civil union.
However, attorneys in Massachusetts (and in other states that recognize
same-sex relationships) continue to recommend that same-sex partners
complete stepparent adoptions on behalf of the nonbiological parent.
The adoption serves as extra protection if the parties travel to a
state that doesn’t recognize same-sex relationships, and also
means that the federal government should recognize the parent-child
relationship for purposes of Social Security and other federal benefits.
For same-sex couples in other states, both parents are not automatically
considered legal parents. The second parent is not a legal parent and
has few, if any, legal rights with regard to the child, unless a second
parent or stepparent adoption has been completed.
If you and your partner are in this situation, it's smart to know the
laws that affect you -- and to make a parenting agreement setting out
your understanding about sharing rights and responsibilities for your
child. Doing so now may prevent considerable legal and emotional grief
down the road.
The Second Parent's Fate After a Break-Up
The status of a second parent (the nonlegal, nonbiological parent)
is most likely to become an issue if a same-sex couple splits up. When
heterosexual parents separate and can't agree on custody terms, courts
will step in to resolve the troubles, but gay and lesbian couples don't
usually have these built-in protections.
In fact, many courts say that a second parent has no rights regarding
the child of a partner, even if the second parent has spent years helping
with homework, patching up scrapes, and giving and receiving unconditional
love. At worst, the second parent may be treated by the courts as a
stranger, giving the legal parent an absolute right to deny all future
contact between the ex and the child.
A handful of courts take the opposite view, awarding visitation to
a nonlegal parent after finding the second parent to be such a critical
part of the child's life that it would be wrong not to grant at least
some continuing contact with the child. These courts may call the second
parent a "de facto parent" or "psychological parents," meaning
that the parent has lived with the child and fulfilled every responsibility
and aspect of nurturing and discipline such that the only tie not satisfied
is the legal or biological one.
In addition to looking at the reality of the parent-child relationship
in these situations, courts may consider the following factors in the
relationship between the child and the nonlegal parent:
- the length of the relationship between the adults, and whether
they and the child lived together
- the intentions of both partners to parent together and what steps,
if any, were taken to ensure that joint parenting would take place,
and
- any co-parenting agreements or other documents regarding the child
that had both partners listed as parents, such as birth announcements.
Make a Parenting Agreement
If you've committed to joint parenting but can't adopt (or choose
not to), the first thing you should do is write up a parenting agreement.
The agreement should specify that, although only one of you is the
legal parent, you both consider yourselves parents of your child, with
all the rights and responsibilities that come with parenting. Include
language that clearly states your intentions to continue co-parenting
even if you end your relationship.
It's also wise to go further and cover financial issues, as well as
the legal parent's intention to provide the second parent with generous
visitation, access to school and social events, and so forth, in the
case of a break-up.
Guidelines for Co-Parents |
Same-sex parents might find it helpful to read Protecting
Families: Standards for Child Custody in Same-Sex Relationships, by
Mary Bonauto, an attorney who argued and won an important
Massachusetts parenting case. This guide offers ten
proposals for lessening conflict in co-parenting intentions.
You can download the guide from the GLAD (Gay & Lesbian
Advocates & Defenders) website at www.glad.org.
Look for it in their list of publications. |
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If the unfortunate does occur and you split up, honor your agreement.
You've both agreed to co-parent without the legal advantages and protections
of adoption, so it's up to both of you to put your differences aside
and make your child's needs a priority. If you can't resolve the issues
amicably, you must take your chances with your state's court system.
The outcome of such a battle is anything but certain.
© 2009 Nolo
