Same-Sex Adoption and Family Leave

Created by FindLaw's team of attorney writers and editors.

Maternity leave, or family leave, is an important employee benefit. The federal Family Medical Leave Act provides job protection to employees who need time away from work to care for family, including adopted children, but doesn't require compensation during the period of leave. While federal leave law applies equally to same-sex and opposite-sex parents (including those who perform the duties of a parent without biological or marital ties), state laws vary on maternity/paternity leave coverage for unmarried same-sex partners.

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 for a number of benefits, including leave to care for a newly adopted child. The FMLA applies to all public agencies, including state, local, and federal employers, as well as local education agencies and schools. It also applies to all private sector employers who have had 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

To be eligible for FMLA leave, you must work for a covered employer and:

  • Have worked for that employer for at least 12 months;
  • Have worked at least 1,250 hours during the 12 months prior to 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 Entitlement

A covered employer must grant an eligible employee up to a total of 12 work weeks of unpaid leave in a 12 month period for the placement with the employee of a child for adoption, and to care for the newly placed child. Leave to care for a newly placed child must conclude within 12 months after the placement.

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" to include 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."

"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 who is raising a child but has no biological or legal relationship to the child.

Whether or not you stand in loco parentis to a child is fact-determinative. The FMLA defines "in loco parentis" to include individuals who have day-to-day responsibilities to care for and financially support a child. However, an individual doesn't have to provide both day-to-day care and financial support in order to stand in loco parentis to a child. You may stand in loco parentis to a child to whom you have no legal or biological relationship, 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. However, depending on your state of residence, you and your partner may have difficulty in jointly adopting a child. In this case, if you're unable to 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, in California, Massachusetts, New Jersey, and Rhode Island, leave insurance laws 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. If you need legal assistance with a same-sex adoption case, you may want to contact a family law attorney near you with experience in such matters.

Next Steps

Contact a qualified attorney specializing in adoptions.

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