Gay and Lesbian Adoption Laws

Some states have special rules that can apply to gay and lesbian adoption.

Same-sex couples face several unique legal issues when they choose to have a family with children. When same-sex couples adopt, they may face discrimination in the adoption process. 

Gay and Lesbian Adoption Laws: Background Information

There are misconceptions about gay and lesbian adoption laws. Some people believe that they are not allowed to adopt in some states. In the past, state laws prohibited LGBTQ+ people from adopting. However, Mississippi ended this when it became the last state to overturn the laws that allowed the adoption restriction. However, just because the laws have changed does not mean that gays and lesbians can adopt without challenges. There are roadblocks in the foster care system. For example, states have a lot of freedom when it comes to placing foster children with foster parents. State laws allow child welfare agencies to ban same-sex couples and LGBTQ+ individuals. Agencies can do this on the basis that it conflicts with their religious beliefs. Because a parent can eventually adopt their foster child, this restriction impacts adoption.

Some states even enact legislation that enables private adoption agencies to discriminate on the basis of sexual orientation. Or they pass laws that favor heterosexuals. For instance, Utah prefers married couples for placements. On the other hand, some states have enacted protections for LGBTQ families seeking to become foster care or adoptive placements for children.

But these are not the only differences. Even when a child is born into a gay or lesbian partnership, different rules can impact the parents. This is true especially if they're an unmarried couple.

The Supreme Court ruling, Obergefell v. Hodges, affirmed same-sex marriage rights nationwide. The ruling removed some legal hurdles. But it did not remove all of them. Marital status is a major factor but there are still a lot of challenges for married same-sex couples who want families. Raising a child can be one of the biggest decisions in your life. It's important to know the legal ramifications for adoptive parents before you start down the road toward growing a family.

Gay and Lesbian Adoption Laws and Options

Many gay and lesbian couples decide to bring a child into their lives through conception and birth. The legal planning necessary for these arrangements is complex. For a lesbian couple, this usually involves finding a male donor. It may involve visiting a sperm bank. One-half of the couple gets pregnant. The other partner 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 using a surrogate mother. Adoption laws vary from state to state. However, a 2015 Supreme Court decision recognizes adoption rights for same-sex couples who want to build their families via science and the law. If one state recognizes an adoption, another state must also recognize it under the "full faith and credit clause" of the Constitution.

The Rights and Duties of Legal Parents

A "legal parent" is a biological or adoptive parent whose parental rights have not been terminated. They can 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. The birth mother is an obvious legal parent because she gave birth to the child. The husband is the presumptive father. Even if the couple divorces, both parents still are the legal parents of the child under this parental presumption.

One partner can legally adopt the biological child of the other partner through adoption procedures. The procedures are:

  • Stepparent adoption
  • Domestic partner adoption
  • Joint adoption/Secondary adoption

A joint adoption or secondary adoption is important. They allow both parties in a same-sex partnership to become legal parents of the child. This provides more rights 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. This is not true for gay couples. When a same-sex couple splits up, the second parent's rights can be less certain.

Prior to legal strides made by LGBTQ+ parents, many states held that a second parent had no legal rights to raise the child. Or they had no legal rights to make decisions for the child, 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.

Laws that Help Protect Parent Status

Before 2015, state laws varied when it came to the legality of same-sex marriage. Some same-sex marriage states applied the paternal presumption. Other states (like California and New Jersey) went even further. They gave parental status to unmarried same-sex couples as long as they were in a civil union or domestic partnership.

After the Obergefell decision in 2015, all states must recognize same sex marriage. But the decision did not create uniformity for other issues. Some state laws presume parentage. Others don't. It 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.

Both parents should also indicate they understand the rights and responsibilities that come with parenting. They should indicate 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 couple decides 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 ends 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. These agreements can assist 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.

Gay and Lesbian Adoption Law Resources

There are groups for gay parents in many large cities around the country. These groups give advice to LGBTQ 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 same-sex parents and LGBTQ families with helpful information:

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. Whether you're bisexual, transgender, gay, or lesbian, you may have legal roadblocks to adoption. Before making any decisions, it's important to understand these laws as well as what options are available for LGBTQ+ adoption. You want the best outcome for you, your co-parent, and your adopted children.

Consider speaking with an experienced adoption law attorney in your area. They can explain your rights and walk you through the process related to your specific situation.

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Can I Solve This on My Own or Do I Need an Attorney?

  • It is a good idea to have an attorney for complex adoptions
  • An attorney can ensure you meet all legal requirements and that your adoption is finalized appropriately
  • An attorney can help protect the best interests of adoptive children, adoptive families, and birth parents
  • For simple adoptions, you may be able to do the paperwork on your own or by using an agency

Get tailored advice at any point in the adoption process. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Adopting a child is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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