Gay and lesbian couples who are raising children, or who want to adopt children, face special issues, some of which will be discussed in this article. You should always contact an attorney in your state for information specific to your situation.
Know the Laws that Apply to Adopting Children
In some states, a same-sex partner can become a parent through either a “second parent” or “stepparent adoption” of the partner’s biological child. Also, in some states, same-sex couples may adopt children in a joint arrangement (just like heterosexual couples) who adopt non-biological children. For some same-sex couples, second parent or joint adoption is not an option (a few states, such as Mississippi and Utah, prohibit same-sex couples from adopting at all in these scenarios). Therefore, it is imperative that same-sex couples who are considering raising a child together become well-informed about the laws that are in effect for their respective state of residence, and that they receive professional legal counsel.
In California, step-parent adoption is not available to couples who choose not to register their partnership nor marry. In these cases, the second-parent adoption process is likely the most viable option. In California, a parent-partner in a second-parent adoption scenario consents to the adoption, but retains all of his or her own parental rights. A second-parent adoption must comply with the same procedural requirements of an independent adoption, including a home study by Social Services.
However, for same-sex couples in California who have registered their domestic partnership or married, the simplified step-parent adoption process is available. The step-parent adoption process provides for a legal-parent status for both partners.
Rights and Responsibilities of Legal Parents
In California, when a married same-sex couple (or registered domestic partnership couple) has or jointly adopts a child, both parties are considered legal parents. They both have the right to live with the child, and to participate in making decisions about the child’s health, education and well-being. A legal parent is also responsible for providing financial support to the child. These rights and responsibilities remain, even if the same-sex couple breaks up.
Same-sex marriage is legal in California (it is also legal in many other states including Oregon, Washington, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, and Vermont). So, married same-sex couples in these states should be considered legal parents of their children, just like married heterosexual couples. Similarly, in the District of Columbia, New Jersey and Oregon, which provide for domestic partnerships and civil unions, same-sex couples should be considered legal parents of their children just like married heterosexual couples.
Even so, many attorneys in states that recognize same-sex relationships still recommend that same-sex couples complete step-parent adoption filings on behalf of the “non-biological parent.” The legal adoption serves as extra protection if the same-sex parent families travel to a state that does not recognize same-sex relationships. The legal adoption also, potentially, may entitle the family to Social Security and other federal program benefits.
In addition to adoption, many attorneys recommend entering into a “parenting agreement” that explicitly states the understanding between the same-sex partners regarding their individual rights and responsibilities as they pertain to their child’s personal and financial well-being. The parenting agreement should state that each adult considers themselves parents of the child, with all the rights and responsibilities that go along with parenting. Also, it is advisable to include language that clearly conveys intentions to continue co-parenting even if the partnership ends. In the parenting agreement, it is also wise to address financial plans, visitation, access to school and extracurricular activities with the child, etc. in the event of a break-up. Having a signed parenting agreement can help alleviate unexpected developments down the road.
If a Couple Breaks-Up
If heterosexual parents separate and cannot agree on child custody terms, the Family Courts will step in to resolve the issues. But depending on which jurisdiction you may be in, gay and lesbian couples do not always have the same processes in place. In California, the Family Courts will usually have jurisdiction in such matters.
In many states, a non-biological same-sex second parent who did not adopt will have no rights with respect to the child, even if the second parent has been the primary care-giver for the child and provided substantial financial support. At worst, the Family Courts may give the primary parent absolute rights to deny all future contact between the second parent and the child. A handful of Family Courts may, however, award visitation privileges to a second parent if the second parent played a critical role in the child’s life and if discontinuing the contact would harm the child.
The following organizations are good resources for information regarding same-sex couples and child adoption: The National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense and Education Fund (www.lambdalegal.org), Gay and Lesbian Advocates and Defenders (www.glad.org), and The Human Rights Campaign (www.hrc.org),
This additional resource may also be helpful: Protecting Families: Standards for Child Custody in Same-Sex Relationships, by Mary Bonauto, an attorney who has been working with the Massachusetts-based Gay & Lesbian Advocates & Defenders (GLAD) organization since 1990.
Fair representation of same-sex couples and their children are an important concern of our law firm. Irwin & Irwin, LLP offers legal advice that you can trust. Please do not hesitate to contact us if you would like legal help in securing your family’s and your own individual interests. We treat all information as privileged and confidential.
Mark A. Irwin, Esq.
Kelly RM. Irwin, Esq.
Stacy M Boyer, J.D.