Same Sex Adoption Cases

The laws in many states are silent on the issue of adoption by gay and lesbian parents. The silence sometimes results in same-sex adoption cases in court.

In the past, same-sex parents have faced obstacles on their way through the adoption process. And they have had to struggle to gain fair adoption rights.

The U.S. Supreme Court effectively settled the matter when it legalized same-sex adoption in all 50 states in 2017. The decision overturned an Arkansas law banning adoption by same-sex couples.

The 2017 Supreme Court ruling, combined with the Court's recognition of same-sex marriage rights, furthered lesbian and gay rights in adoption cases. However, limitations remain for unmarried couples who want to adopt. For instance, Utah does not allow unmarried couples (same-sex or different-sex) to foster children. Because many adoptions come from the child welfare system, this can directly impact adoption numbers.

Despite these inroads, social workers may still be reluctant to place children with someone who identifies as bisexual or transgender. They might not think it's in the “best interests of the child." So, while states are now broadly required to permit LGBT adoption, some states like Massachusetts, New York, and California might be more friendly than states like Utah or Georgia.

Cases still crop up, and certain restrictions in adoption laws still remain. The following is a discussion of same-sex adoption cases in the United States.

State Laws Against Adoption by Gays and Lesbians

Many states adopted laws against same-sex marriage prior to the Supreme Court's landmark 2015 Obergefell v. Hodges ruling. But only Florida had a statute that explicitly prohibited adoption by gay parents. However, in 2010, Florida's Third District Court of Appeal held that the state's ban on adoption by homosexuals violated the equal protection guarantee of the Florida Constitution.

In this case, a foster parent sought to adopt his two foster sons. Although the organization thought he was a fit parent, they rejected his application. He could not adopt only because Florida law prohibited gay adoption.

The court found that there was no rational basis for this blanket exclusion. Florida's Dept. of Children and Families no longer factors in sexual orientation to determine adoption fitness.

State Policies Against Adoption by Gays, Lesbians, or Unmarried Couples

Some states had official policies (not laws) that prohibit placing children into foster care or adoption with gay couples or individuals.

In Nebraska, Greg and Stillman Stewart, a gay married couple sued to overturn such a policy. They couldn't have foster children because they're gay men. The Nebraska Supreme Court in 2017 upheld the trial court's decision that the state's policy violated equal protection and due process.

Some states are in "non-compliance" with federal guidelines permitting LGBT couples to adopt. Several other states allow adoption agencies receiving taxpayer funding to deny adoption by LGBT or unmarried couples on "religious" grounds, including:

  • Alabama
  • Michigan
  • Mississippi
  • North Dakota
  • South Dakota
  • Texas
  • Virginia

Same-Sex Adoption Cases: Second Parent Adoptions

In second-parent adoptions (similar to stepparent adoptions) the prospective parent petitions the court. If an individual is the legal parent of a child, (through birth or adoption), their partner may seek to adopt the child as well. While many states allow second parent adoption, some states prohibit it, including:

  • Alabama
  • Kansas
  • Kentucky
  • Nebraska
  • North Carolina
  • Ohio
  • Wisconsin

In the case of In Re: Adoption of K.R.S., a lesbian couple who married in California sought to obtain a second parent adoption for the biological child of one partner. The Alabama Court of Civil Appeals denied their request. The court held that Alabama law would not recognize the couple's marriage. Without their marital status, the co-parent could not adopt as a stepparent.

Recognition of Adoptions in Other States

Because adoptions are court orders, states must recognize them under the Full Faith and Credit Clause of the Constitution. In Russell v. Bridgens, a lesbian couple obtained a joint adoption in Pennsylvania. One partner sought child support after their separation.

The Nebraska Supreme Court recognized the Pennsylvania adoption based on the Full Faith and Credit Clause. The court ruled this way even though Nebraska prohibited same-sex adoption.

Modification of Birth Certificates

Several cases have involved petitions to put both adoptive parents' names on a birth certificate. A child's birth certificate can be used as proof of relationship to parents and is often modified after adoption.

In Finstuen v. Crutcher, the Tenth Circuit Court of Appeals held that the Full Faith and Credit Clause required Oklahoma to recognize same-sex adoptions performed in other states. A state must modify the birth certificates of adopted children, just as it would for an adoption granted in Oklahoma.

However, the Fifth Circuit took a different approach in Adar v. Smith, finding that state courts were required to respect such adoptions but that the state agencies can follow their own state's laws regarding whether to modify a birth certificate rather than following the practice of the state that granted the adoption. Because Louisiana law did not require the re-issuance of a birth certificate after adoption by unmarried heterosexual couples, the Full Faith and Credit Clause did not require Louisiana to issue a new birth certificate to the unmarried same-sex couple in that case.

Confused by Same-Sex Adoption Cases? Get Legal Help Today

For same-sex adoption, cases in both federal and state courts have largely shaped parental rights. Although LGBTQ adoption is legal across the states, that legality does not prevent members of the population from having to fight for their rights.

Having an attorney can be an important part of protecting and advancing your rights. Attorneys can help you pursue adoption, establish parentage, or understand the laws in your state. Consider contacting a qualified adoption attorney in your area who can answer your questions and explain your rights.

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  • 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
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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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