The laws in many states are silent on the issue of adoption by gay and lesbian individuals, sometimes resulting same sex adoption cases. As with same sex marriage, the legal landscape surrounding same sex adoption is changing quickly and can vary greatly from place to place, as the cases surveyed here demonstrate. See FindLaw's Same Sex Adoption section for additional articles and resources.
State Laws Against Adoption by Gays and Lesbians
Though many states have adopted laws against same sex marriage, only Florida had a statute that explicitly prohibited adoption by homosexual individuals. This law was struck down as unconstitutional in 2010.
In Florida Department of Children and Families v. X.X.G., 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 a blanket exclusion of homosexuals. Florida's Department of Children and Families no longer considers sexual orientation as a factor in determining fitness to adopt.
State Polices Against Adoption by Gays, Lesbians or Unmarried Couples
Some states have official policies, but not laws, which prohibit placing 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.
Several other states prohibit adoption by unmarried couples. In states that don't allow gay marriage, these laws essentially ban adoption by same sex couples, though they may allow for adoption by individuals. Cases challenging these bans have largely focused on the state's prohibition against same sex marriage, rather than same sex adoption, or have been put on hold until decisions over same sex marriage are finalized.
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 his or her partner. If an individual is the legal parent of a child, through birth or adoption, his or her partner may seek to adopt the child as well.
Many states allow second parent adoption for same sex couples, including California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
Some states prohibit second parent adoptions, 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
States that don't allow for same sex adoption within their own state must recognize same sex adoptions performed 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. 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 determine independently whether to modify a birth certificate.
How an Attorney Can Help
With same sex adoptions, 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.