Gay and Lesbian Adoption Laws
By FindLaw Staff | Legally reviewed by Hal Armstrong, Esq | Last updated November 19, 2021
Same sex couples face several unique legal issues when they decide to become a family with children. In many states, special rules can apply to gay and lesbian adoption. Even when a child is born into a gay or lesbian partnership, different rules can impact the two parents, especially if they're not married.
Gay and lesbian adoption laws in some states that restrict married LGBT+ couples from adopting typically involve issues regarding the religious rights of adoption agencies. Supporters of these restrictions claim agencies should not be compelled to place children with families they find morally objectionable.
The Supreme Court ruling affirming same-sex marriage rights nationwide removed some of these legal hurdles, but not all of them. Raising a child can be one of the biggest decisions in your life, and it's important to know all of the legal ramifications of your decision before you start down the road toward growing a family.
Gay and Lesbian Adoption Laws and Options
It's often the case that gay and lesbian couples decide to bring a child into their lives through conception and birth. The legal planning necessary for these arrangements can be complicated.
For a lesbian couple, this usually involves finding a male donor or visiting a sperm bank and then having one of the couple become pregnant. The other parent in such a partnership then can become a legal second parent through stepparent or second parent adoption. Gay men can also become legal parents of a child in a similar fashion through the use of a surrogate mother.
Adoption laws vary from state to state. Notably, however, a 2015 Supreme Court decision recognizes and grants adoption rights for these same-sex couples who want to build their families through the help of science and the law.
There are often gay and lesbian parenting groups in many large cities around the country that are willing to give advice to couples looking to raise children. If you can't find any in your area, you can visit the Queer Resources Directory. The following sites can also provide you with helpful information:
The Rights and Duties of "Legal Parents"
A legal parent is defined as the person who has the right to live with a child and make decisions about the child's education, well being and health. Legal parents must also support their children financially.
When a heterosexual married couple has a child, both parents are automatically presumed to be the child's legal parents. Even if the couple divorces, both parents still are the legal parents of the child under this parental presumption.
In many cases, one partner can legally adopt the biological child of the other partner through adoption procedures such as stepparent adoption or domestic partner adoption. A joint adoption or secondary adoption are important since they allow both parties in a same-sex partnership to become legal parents of the child, even if the same-sex couple is already legally married.
Second Parents' Rights After a Separation
When a same-sex partnership dissolves, the issue of a second parent's rights becomes important. These matters are difficult to resolve because of the unique legal nature of gay and lesbian unions.
When heterosexual couples split, a court will issue a child custody order if the two parents cannot come to an agreement. When a same-sex couple splits up, however, the second parent's rights can be less certain in the absence of a marriage or formal second-parent adoption.
Prior to legal strides made by LGBT parents, many states held that a second parent had no legal rights to raise or make decisions pertaining to the child in the future, even if that second parent had acted and behaved like a parent for the child's entire life.
In the worst case scenario, a court would treat a second parent as a complete stranger to the relationship between the child and the first parent. The first parent gained the absolute right to dictate all future interactions between the child and the second parent.
Courts now must allow a second parent court-ordered visitation time, as is the case with heterosexual parents.
Utilize All Laws Possible To Protect Parent Status
Before same-sex marriage was legally recognized by the Supreme Court in 2015, some states that allowed same-sex marriage also applied the parental presumption to such spouses. Other states, such as California and New Jersey, would even grant legal parent status upon the birth of a child to unmarried gay and lesbian couples as long as the couple was in a civil union or domestic partnership.
Since 2015, as all states are now required to recognize same sex marriage, some are also enacting laws applying the parental presumption to same-sex spouses. However, this is an uneven process among the states and still a focus of litigation.
Those who are in a same-sex union who want to ensure their parental rights over a non-biological child should use as many legal avenues to do so as possible.
Parenting Agreements
After a same-sex couple commits to a joint parenting relationship, the first thing they should do is create a parenting agreement. Gay and lesbian couples should plan on making arrangements with respect to their children and the laws of their state.
This agreement-document should reflect that, although only one of them might be the biological, legal parent of the child, both people consider themselves and each other to be that child's parents.
The parents should both also indicate they understand the rights and responsibilities that come with parenting and that they voluntarily assume those responsibilities. Lastly, the agreement should include a clause stating that both parties wish to continue parenting even if their relationship ends.
These agreements offer greater certainty when they cover financial issues as well, such as the costs of education, food and housing. In addition, the legal parent should also express their intention that, even if the relationship ends, they will grant generous visitation rights to the second parent.
Same sex couples, just like heterosexual couples, are encouraged to make parenting agreements that set out in plain language the couple's understanding of their rights and responsibilities should they divorce. By doing this early on, they can save time, money and hardship later.
Legal Adoption
Relying on the assumption that the legalization of same sex marriage will automatically result in legal parent status upon the birth or adoption of a child can be a risky move. A parenting agreement is also not always sufficient. Attorneys regularly recommend that non-biological parents go through the legal procedures required for stepparent or second parent adoption to best protect one's parental rights.
This legal relationship will exist as a backup form of security if the gay or lesbian couples decide to travel to a state that does not recognize the parental rights of a same-sex married couple. It protects their rights as parents and better safeguards both the parents and the kids from unnecessary legal hurdles they might experience otherwise.
Legal Planning and Collaboration Offer Control
If a same-sex relationship does end without certain protections in place, the outcome of custody and visitation decisions is less predictable. The two parties should try hard to resolve their differences before taking their dispute to the courts.
The outcomes of custody battles between same-sex partners vary greatly. There is no guarantee that it will turn out the way either person expects or wants.
The Gay and Lesbian Advocates and Defenders website offers guides to help create parenting agreements that can help out in family law cases like this. This guide offers ten standards that should be kept in mind when dealing with families that are not bound together in the typical legal fashion.
Need Help With Lesbian and Gay Adoption Laws? Call an Attorney
As you can see, the laws related to gay and lesbian adoption can be complicated and can vary by state, despite legal gains in some areas. Before making any decisions, it's important to understand these laws as well as what options are available.
Consider speaking with an experienced adoption law attorney in your area who can explain your rights and walk you through the process related to your specific situation.
Next Steps
Contact a qualified attorney specializing in adoptions.