Same Sex Adoption Cases

The laws in many states are silent on the issue of adoption by gay and lesbian individuals, sometimes resulting in same-sex adoption cases in court. This matter was largely settled when the U.S. Supreme Court effectively legalized same-sex adoption in all 50 states in 2017 after overturning an Arkansas law banning adoption by same-sex couples.

So while states are now broadly required to permit same-sex adoption, cases still crop up and certain restrictions still remain. The following is a discussion of same-sex adoption cases in the United States.

State Laws Against Adoption by Gays and Lesbians

Though many states adopted laws against same-sex marriage prior to the Supreme Court's landmark 2015 Obergefell v. Hodges ruling, only Florida had a statute that explicitly prohibited adoption by homosexual individuals. But 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. Though he was found to be a fit parent, his application was denied solely because Florida law prohibited adoption by homosexuals. The court found that there was no rational basis for this blanket exclusion. Florida's Department of Children and Families no longer considers sexual orientation as a factor in determining fitness to adopt.

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

Some states had official policies, but not laws, prohibiting the placement of children in state care into foster care or adoption with gay or lesbian individuals or couples. In Nebraska, Greg and Stillman Stewart, a gay couple married in California, sued to overturn such a policy after having been denied the ability to 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.

Several other states allow adoption agencies receiving taxpayer funding to deny adoption by LGBT or unmarried couples on "religious" grounds, including Georgia, Texas, Alabama, Mississippi, Virginia, Michigan, North Dakota, and South Dakota. Other states, including Nebraska and Missouri, are in "non-compliance" with federal guidelines permitting LGBT couples to adopt.

Same-Sex Adoption Cases: Second Parent Adoptions

Second-parent adoptions, sometimes referred to as stepparent adoptions, consist of a prospective parent petitioning the court to adopt the legal child of their partner. If an individual is the legal parent of a child, through birth or adoption, their partner may seek to adopt the child as well.

Many states allow second parent adoption, although some states prohibit it, including Alabama, Kansas, Kentucky, North Carolina, Nebraska, Ohio, and Wisconsin.

In the case of In Re: Adoption of K.R.S., a lesbian couple who had been 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, finding that Alabama law would not recognize the couple's marriage and thus the partner could not adopt as a stepparent.

Recognition of Adoptions in Other States

Since adoptions are court orders, states are required to recognize them under the Full Faith and Credit Clause of the Constitution. In Russell v. Bridgens, a woman who had adopted a child with her partner in Pennsylvania sought child support after their separation. The Nebraska Supreme Court found that the Full Faith and Credit Clause required the court to acknowledge the adoption performed in Pennsylvania, 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 found that the Full Faith and Credit Clause required Oklahoma to recognize same-sex adoptions performed in other states and 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 reissuance 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

With respect to same-sex adoption, cases in both federal and state courts have largely shaped parental 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.