Adopting Children

Lesbians and gay men bring children into their lives in a number of ways. In lesbian couples, frequently one partner gives birth to a child and the other partner -- the second parent -- becomes a legal parent through second parent or stepparent adoption, if that's permitted in the state where they live. In states that allow it, lesbians or gay men sometimes adopt children jointly, so that both of them are legal parents from the beginning.

Lesbian and gay singles and couples in these states can adopt children through agency or independent adoptions, and even through international adoptions, though they will have to be closeted to complete an international adoption.

For many same-sex couples, however, joint or second parent adoptions are not available. A few states, such as Florida, bar same-sex partners from adopting. For a state-by-state overview of second parent adoption laws and cases, visit Lambda Legal's website.

Legal Parents: Rights and Responsibilities

A legal parent is a person who has the right to live with a child (full or part time) and to make decisions about the child's health, education, and well-being. A legal parent is also responsible for financially supporting the child. When a married couple has or jointly adopts a child, both partners are automatically considered legal parents. As a result, even if they split up, they both remain legal parents unless a court terminates either parent's rights.

Some lesbian and gay couples are fortunate enough to live in a state where same-sex partners can jointly adopt a child -- or where one partner can adopt the biological child of the other through a second parent, stepparent, or domestic partner adoption. These procedures ensure that both partners are considered legal parents of their child.

Now that same-sex marriage is legal in Massachusetts, same-sex parents should be considered legal parents of the child from the time of the child's birth, like heterosexual married couples. The same is theoretically true in California and Vermont, which grant legal parent status to partners of birth parents when a child is born during a domestic partnership or civil union. However, attorneys in Massachusetts (and in California and Vermont) continue to recommend that same-sex partners complete stepparent adoptions on behalf of the nonbiological parent. The adoption serves as extra protection if the parties travel to a state that doesn't recognize same-sex relationships, and also means that the federal government should recognize the parent-child relationship for purposes of Social Security and other federal benefits. Without the adoption, these benefits would rely on the parent-child relationship created by the marriage--and the marriage is not recognized by the federal government.

For lesbian and gay couples in other states, both parents are not automatically considered legal parents. The second parent is not a legal parent and has few, if any, legal rights with regard to the child, unless he or she has completed a second parent or stepparent adoption.

If you and your partner are in this situation, it's smart to know the laws that affect you -- and to make a parenting agreement setting out your understanding about sharing rights and responsibilities for your child. Doing so now may prevent considerable legal and emotional grief down the road. (See The Second Parent's Fate After a Break-Up, below.)

Know Your Local Laws Because it is essential that you know your local law before you decide to raise a child together, we strongly recommend that you seek legal advice when you are considering parenting. Search out gay and lesbian parenting groups in your state. If you don't know where to start, try the Queer Resources Directory (http://www.qrd.org), which includes many parenting sites. The following organizations can also provide you with information and, quite possibly, a referral to a good lawyer in your area: The National Center for Lesbian Rights (http://www.nclrights.org), the Lambda Legal Defense and Education Fund (http://www.lambdalegal.org), and Gay and Lesbian Advocates and Defenders (http://www.glad.org).