Same sex couples face several unique legal issues when they decide to become a family with children. Special rules can apply to gay and lesbian adoption in many states, and even when a child is born into a gay or lesbian partnership, different rules may be applied regarding the two parents, especially if they're not married.
Gay and Lesbian Adoption
It's often the case that gay and lesbian couples decide to bring a child into their lives through conception and birth. 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. Not all states allow such adoption, however. 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, and there are some states that do allow lesbian and gay couples to adopt children as legal, joint parents. Gay and lesbian couples in these states can go through adoption agencies in order to adopt, personally arrange their adoption, or even adopt internationally.
In many states, however, stepparent, second parent or even joint adoption are not options for gay and lesbian couples. In Florida, for example, state laws prohibit any "homosexual" from adopting a child. Florida prohibits second parent adoptions as well. If you would like to look up the legal status of gay and lesbian adoptions in your state, you can visit Lambda Legal for a list of the laws of each state which address homosexual adoption.
Raising a child can be one of the biggest decisions in your life, which is why it's important to know all of the legal ramifications of your decision before you start down the road. 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 cannot find any in your area, you can visit the Queer Resources Directory. The following sites can also provide you with helpful information: Lambda Legal, the National Center for Lesbian Rights, and the Gay and Lesbian Advocates and Defenders.
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.
As mentioned above, gay and lesbian couples living in some states can jointly adopt a child. In other states, 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 to the same-sex partnership to become legal parents of the child.
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.
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. Attorneys regularly recommend that non-biological parents go through the legal procedures required for stepparent or second parent adoption as a precaution. 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.
In the remaining states that do not allow gay and lesbian adoption, the second parent is not considered to be a legal parent and has limited rights.
Gay and lesbian couples should plan on making arrangements with respect to their children and the laws of their state. 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. By doing this now, you may be able to save time, money and hardship later on.
What happens to the second parent's rights after a split?
When a same-sex partnership dissolves, the issue of a second parent's rights is certain to come up if a child is involved. These problems are difficult to resolve because of the unique legal nature of gay and lesbian unions. When heterosexual couples split up, 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 more uncertain.
Many states have settled that a second parent has no legal rights to raise or make decisions pertaining to the child in the future, even if that second parent has acted and behaved like a parent for the entirety of the child's life. In the worst case scenario, a court will treat a second parent as a complete stranger to the relationship between the child and the first parent, giving the first parent the absolute right to dictate all future interactions between the child and the second parent.
On the other hand, some courts have seen the laws as softer and more flexible, often allowing a second parent court-ordered visitation time after a finding that the second parent has played an integral role in the child's life. The courts making these decisions often call the second parents "de facto parents," meaning that the person has lived with and raised the child just as a regular, legal parent would have.
When considering whether a second parent should be judged a "de facto parent," a court will often look to the following criteria:
After you and your partner have committed to a joint parenting relationship, the first thing that you both should do is sit down and draw up a parenting agreement. This document should reflect that, although only one of you might be the true, legal parent of the child, both of you consider yourselves and each other to be the parents of the child. You should both also indicate that you know the rights and responsibilities that come with parenting your child. Lastly, the agreement should also include a clause that you both wish to continue parenting even if your 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, he or she will grant generous visitation rights to the second parent.
If a same-sex relationship does end, it is important that both the legal and second parent of the child try hard to honor the parenting agreement. In the beginning, both parents agreed to raise the child without some of the legal protections afforded by adoption or legal parentage, so they should try to recognize this point and abide by the agreement. The two parties should make a concerted effort to resolve their differences before taking their dispute to the courts. The outcomes of custody battles between same-sex partners vary greatly and there is no guarantee that it will turn out the way to the parties expect.
The Gay and Lesbian Advocates and Defenders website offers guide to authoring these parenting here. 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.
Hire a Legal Professional for Your Adoption Process
As you can see, the laws related to gay and lesbian adoption can be complicated and vary by state, despite legal gains in some areas. Before you make any decisions, it's important to understand these laws as well as what options are available to you. Consider speaking with an experienced adoption law attorney in your area who can explain your rights and walk you through the process.