LGBT folk have pursued a number of different paths to family creation. Be it through adoption, sperm donation, or the use of surrogates, there are myriad ways to create your family of intention and function. Once you’ve made the decision to create your family, how do you ensure that you are legally recognized as the parents of your children?
Why is legal recognition of a parental relationship important?
Legal recognition allows you to live with the child, and make decisions about the child’s health, education, and well-being. It is also essential for ensuring that the child can access company-provided health insurance, Social Security benefits, inheritance rights, as well as child-support, should you and your partner separate.
The most common way to ensure the rights of parenthood is through an adoption process. For LGBT parents however, the ability to adopt varies by state, and sometimes by county. Adoption requires the termination of one parent’s rights in favor of another parent. Many state statues allow a married person to adopt his or her spouse’s child, without requiring the termination of the other spouse’s rights. But the state statues do not explicitly allow for unmarried couples to adopt this way. This becomes tricky for LGBT parents who cannot be legally married in many states. Same sex couples who reside in states that recognize same sex marriage can generally use the stepparent adoption procedure available to heterosexual couples.
What are the types of adoption available to LGBT parents?
- Joint Adoption – Adoption by a couple of a child that has no biological or pre-existing relationship with the couple.
- Second-Parent / Co-Parent Adoption – Legal procedure that allows a same-sex partner to adopt his/her partner’s biological or adoptive child without the termination of the first parent’s rights
- Step-parent adoption – when a new partner assumes the rights of the other birth parent. This requires the other birth parent to terminate their rights in favor of the new partner. If the other birth parent refuses to terminate their rights or cannot be found, you will have to prove either that
- The absent parent has abandoned the child (willfully failed to support the child for some period of time, generally a year)
- Or is not the presumed father (if the absent parent is male)
STATES THAT ALLOW SECOND PARENT ADOPTION
| State |
|---|
| California |
| Colorado |
| Connecticut |
| Delaware |
| District of Columbia |
| Hawaii |
| Illinois |
| Indiana |
| Iowa |
| Maine |
| Massachusetts |
| Nevada |
| New Hampshire |
| New Jersey |
| New York |
| Oregon |
| Pennsylvania |
| Rhode Island |
| Vermont |
| Washington |
STATES THAT LIMIT/PROHIBIT ADOPTION BY LGBT COUPLES
| State | Note |
|---|---|
| Arizona | Preference to married couples over single adults |
| Kentucky | Does not permit unmarried couples to use the stepparent adoption procedure |
| Utah | Preference to married couples over single adults; prohibits anyone cohabiting in a non-marital sexual relationship from adopting |
| Ohio | Does not permit second parent or co-parent adoption |
| Mississippi | Prohibits adoption by couples of the same gender |
| North Carolina | Does not permit second parent or co-parent adoption |
| Nebraska | Does not permit second parent or co-parent adoption |
| Wisconsin | Does not permit second parent or co-parent adoption |
Source: National Center for Lesbian Rights (www.nclrights.org)
What if you live in a state that doesn’t allow second parent or stepparent adoption?
Similar to what you have to do in the case of marriage, you will then need to privately contract for the rights that a legal parental relationship bestows:
- Medical power of attorney
- Right of hospital visitation
- Inheritance – Wills, trusts, beneficiaries of retirement accounts
- Parenting agreement – A document that states that even though only one partner is legally recognized as the parent, both partners consider themselves to be parents. It can be helpful to outline how you intend to co-parent even if your relationship ends.
Given the wide variance in state laws, and dynamic nature of same-sex parenting law, it is important to see the advice of an experienced adoption lawyer before beginning any adoption proceedings.
