Created by FindLaw’s team of legal writers and editors | Last updated October 10, 2018
Same sex couples face several unique legal issues when they decide to become a family with children. Special rules can apply to gay and lesbian adoption in many states, and even when a child is born into a gay or lesbian partnership, different rules may be applied regarding the two parents, especially if they’re not married. The Supreme Court ruling affirming same-sex marriage rights nationwide removed some, but not all, of these legal hurdles.
Gay and lesbian adoption laws in some states that restrict married LGBT couples from adopting typically involve issues regarding the religious rights of adoption agencies. Supporters of these restrictions claim agencies should not be compelled to place children with families they find morally objectionable.
Gay and Lesbian Adoption Laws and Options
It’s often the case that gay and lesbian couples decide to bring a child into their lives through conception and birth. For a lesbian couple, this usually involves finding a male donor or visiting a sperm bank and then having one of the couple become pregnant. The other parent in such a partnership then can become a legal second parent through stepparent or second parent adoption. Not all states allow such adoption, however, and adoption laws vary from state to state. Gay men can also become legal parents of a child in a similar fashion through the use of a surrogate mother.
Raising a child can be one of the biggest decisions in your life, which is why it’s important to know all of the legal ramifications of your decision before you start down the road. There are often gay and lesbian parenting groups in many large cities around the country that are willing to give advice to couples looking to raise children. If you can’t find any in your area, you can visit the Queer Resources Directory. The following sites can also provide you with helpful information: Lambda Legal, the National Center for Lesbian Rights, and the Gay and Lesbian Advocates and Defenders.
The Rights and Duties of “Legal Parents”
A legal parent is defined as the person who has the right to live with a child and make decisions about the child’s education, well being and health. Legal parents must also support their children financially. When a heterosexual married couple has a child, both parents are automatically presumed to be the child’s legal parents. Even if the couple divorces, both parents still are the legal parents of the child under this parental presumption.
In many cases one partner can legally adopt the biological child of the other partner through adoption procedures such as stepparent adoption or domestic partner adoption. A joint adoption or secondary adoption are important since they allow both parties to the same-sex partnership to become legal parents of the child (assuming the couple isn’t married).
Before same-sex marriage was legally recognized by the Supreme Court in 2015, some states that allowed same-sex marriage also applied the parental presumption to such spouses. Other states, such as California and New Jersey, would even grant legal parent status upon the birth of a child to unmarried gay and lesbian couples as long as the couple was in a civil union or domestic partnership. Since 2015, as all states are now required to recognize same sex marriage, some are also enacting laws applying the parental presumption to same-sex spouses. However, this is an uneven process among the states and still a focus of litigation.
Relying on the assumption that the legalization of same sex marriage will automatically result in legal parent status upon the birth or adoption of a child can be a risky move. Attorneys regularly recommend that non-biological parents go through the legal procedures required for stepparent or second parent adoption as a precaution. This legal relationship will exist as a backup form of security if the gay or lesbian couples decide to travel to a state that does not recognize the parental rights of a same-sex married couple.
Gay and lesbian couples should plan on making arrangements with respect to their children and the laws of their state. Same sex couples, just like heterosexual couples, are encouraged to make parenting agreements that set out in plain language the couple’s understanding of their rights and responsibilities. By doing this now, you may be able to save time, money and hardship later on.
Second Parents’ Rights After a Separation
When a same-sex partnership dissolves, the issue of a second parent’s rights is certain to come up if a child is involved. These problems are difficult to resolve because of the unique legal nature of gay and lesbian unions. When heterosexual couples split up, a court will issue a child custody order if the two parents cannot come to an agreement. When a same-sex couple splits up, however, the second parent’s rights can be less certain in the absence of a marriage or formal second-parent adoption.
Prior to legal strides made by LGBT parents, many states held that a second parent had no legal rights to raise or make decisions pertaining to the child in the future, even if that second parent had acted and behaved like a parent for the entirety of the child’s life. In the worst case scenario, a court would treat a second parent as a complete stranger to the relationship between the child and the first parent, giving the first parent the absolute right to dictate all future interactions between the child and the second parent.
Courts now must allow a second parent court-ordered visitation time, as is the case with heterosexual parents.
Gay and Lesbian Adoption Laws: Parenting Agreements
After you and your partner have committed to a joint parenting relationship, the first thing that you both should do is sit down and draw up a parenting agreement. This document should reflect that, although only one of you might be the true, legal parent of the child, both of you consider yourselves and each other to be the parents of the child. You should both also indicate that you know the rights and responsibilities that come with parenting your child. Lastly, the agreement should also include a clause that you both wish to continue parenting even if your relationship ends.
These agreements offer greater certainty when they cover financial issues as well, such as the costs of education, food and housing. In addition, the legal parent should also express their intention that, even if the relationship ends, he or she will grant generous visitation rights to the second parent.
If a same-sex relationship does end, it is important that both the legal and second parent of the child try hard to honor the parenting agreement. In the beginning, both parents agreed to raise the child without some of the legal protections afforded by adoption or legal parentage, so they should try to recognize this point and abide by the agreement. The two parties should make a concerted effort to resolve their differences before taking their dispute to the courts. The outcomes of custody battles between same-sex partners vary greatly and there is no guarantee that it will turn out the way to the parties expect.
The Gay and Lesbian Advocates and Defenders website offers guides to help in authoring these parenting agreements. This guide offers ten standards that should be kept in mind when dealing with families that are not bound together in the typical legal fashion.
Need Help With Lesbian and Gay Adoption Laws? Call an Attorney
As you can see, the laws related to gay and lesbian adoption can be complicated and vary by state, despite legal gains in some areas. Before you make any decisions, it’s important to understand these laws as well as what options are available to you. Consider speaking with an experienced adoption law attorney in your area who can explain your rights and walk you through the process.