Same-Sex Adoption and Family Leave

Maternity leave, or family leave, is an important employee benefit. Under federal law, the Family Medical Leave Act provides job protection to employees who need time away from work to care for their families.

Whether you're an adoptive parent or a parent with a biological child or a child conceived via surrogacy, the Act allows you to leave work and return to the same job. You don't get compensation during the period of leave.

Federal leave law applies equally to opposite-sex and same-sex parents. The federal leave law includes those who perform the duties of a parent without biological or marital ties. But state laws vary on maternity/paternity leave coverage for unmarried same-sex couples in contrast to married couples. For instance, you do not have to be married in New York. In Delaware, you must be married.

Family leave is just another area of law for gay and lesbian couples to pay attention to. This article provides an overview of same-sex adoption and family leave law.

The Family Medical Leave Act (FMLA) at a Glance

The FMLA provides several benefits, including parental leave for new parents to care for an adopted child. The FMLA applies to all public agencies, including state, local, and federal employers, local education agencies, and schools. It also applies to all private sector employers with 50 or more employees in 20 work weeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Employee Eligibility for FMLA

Your employer may deny your request if you don't qualify for FMLA. To be eligible for FMLA leave, you must work for an employer that is covered and:

  • Have worked for that employer for at least 12 months;
  • Have worked at least 1,250 hours during the 12 months before the start of the FMLA leave; and
  • Work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Same-Sex Adoption and Family Leave: FMLA Timelines

A covered employer must grant an eligible employee up to 12 work weeks of unpaid leave in 12 months for the placement with the employee of a child for adoption or foster care and to care for the newly placed child. An employee may use FMLA for the following:

  • Go to counseling
  • Make court appearances
  • Consult with the birth mother's physician or attorney
  • Undergo a physical examination
  • Travel to another country for an international adoption

Leave to care for a newly placed child must conclude within 12 months after the placement. But if your leave is for the birth of a child, the 12 months begins on the date of the birth.

FMLA Definition of 'Son or Daughter'

Under the FMLA, a covered employee can take unpaid leave to care for and bond with a new "son or daughter." The FMLA broadly defines "son or daughter" as a biological child, a legally adopted child, a foster child, a stepchild, a legal ward, or a child of a person standing "in loco parentis."

Types of Gay Adoption

Many LGBTQ parents establish a second-parent adoption to enable non-biological parents to secure a legal relationship with their children. This legal proceeding is essential to be the child's legal parent and have parental rights. A second-parent adoption is similar to a step-parent adoption, but the biological parent does not terminate their parental rights. If married, you can get a second-parent adoption in any state, regardless of sexual orientation. Because the U.S. Supreme Court recognizes same-sex marriage, you have the same legal rights as different-sex married couples. You can get a second-parent adoption in any state, regardless of sexual orientation. If you're unmarried, it depends on state adoption laws.

Definition of 'In Loco Parentis'

"In loco parentis" means a person acting in the place of a parent. The Department of Labor has stated that this type of parent-child relationship includes an LGBT parent raising a child but has no biological or legal relationship with the child.

Whether you stand in loco parentis to a child is fact-determinative. The FMLA defines in loco parentis to include people who have day-to-day responsibilities to care for and financially support a child. But an individual doesn't have to provide daily care and financial support to stand in loco parentis to a child. You may stand in loco parentis to a child you have no legal or biological relationship with and for whom you don't financially care for if you provide daily care for the child.

The above can be very important for same-sex couples. If you and your partner have legally adopted a child, you would have no problems. Gay adoption is legal across the U.S.

But depending on your state of residence, you and your partner may have difficulty jointly adopting a child. Some states permit private adoption agencies to discriminate against gay and lesbian couples based on religious beliefs. In this case, if you cannot adopt, you may still stand in loco parentis to the child and take leave to bond with the child.

Same-Sex Adoption and Leave: State Laws

Some states have family leave laws that are broader than the FMLA. For example, leave insurance laws in California, Massachusetts, New Jersey, and Rhode Island provide partial pay to workers who need time off to bond with an adopted child. Regardless of the state in which you live, the FMLA is the baseline, and a state can only expand on (not replace) the FMLA.

Get Professional Legal Help With Same-Sex Adoption and Family Leave

Every relationship and situation is unique, and you may have additional questions specific to your family and the adoption process. If you need legal advice with a same-sex adoption case, you may want to contact a family law attorney with experience in such matters near you.

Was this helpful?

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.

 Find a local attorney

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.

Start Planning