Gay and Lesbian Adoption and Parenting
The legal rights of same-sex parents, from adoption to coparenting to second parent rights.
There are special issues for lesbian and gay singles and couples who want to adopt or who are raising children. This article addresses adoption for LGBT singles and couples, as well as parenting and the rights of second parents.
Adopting Children
Lesbians and gay men bring children into their lives in a number of ways. In lesbian couples, frequently, one partner gives birth to a child and the other partner -- the second parent -- becomes a legal parent through second parent or stepparent adoption, if that’s permitted in the state where they live. Gay men can do virtually the same thing by using a surrogate to carry a child born from one partner's sperm and a donor egg.
In states that allow it, same-sex couples sometimes adopt children jointly, so that both partners are legal parents from the beginning. Lesbian and gay singles and couples in these states can adopt children through agencies or independent adoptions, and even through international adoptions (though international adoption will be more difficult now that the United States has adopted the Hague Convention). For information on the different types of adoption, read Nolo's article Types of Adoption.
For many same-sex couples, joint or second parent adoption isn't an option. A few states, such as Florida, bar same-sex partners from adopting. For a state-by-state overview of second parent adoption laws and cases, visit the Lambda Legal Defense and Education Fund's website at www.lambdalegal.org.
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Because it is essential that you know your local law before you decide to raise a child together, we strongly recommend that you seek legal advice when you are considering parenting. Search out gay and lesbian parenting groups in your state. If you don't know where to start, try the Queer Resources Directory (www.qrd.org), which includes many parenting sites. The following organizations can also provide you with information: The National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense and Education Fund (www.lambdalegal.org), and Gay and Lesbian Advocates and Defenders (www.glad.org).
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Legal Parents: Rights and Responsibilities
A legal parent is a person who has the right to live with a child (full or part time) and to make decisions about the child's health, education, and well-being. A legal parent is also responsible for financially supporting the child. When a married couple has or jointly adopts a child, both partners are automatically considered legal parents. As a result, even if they split up, they both remain legal parents.
Some same-sex couples are fortunate enough to live in a state where they can jointly adopt a child -- or where one partner can adopt the biological child of the other through a second parent, stepparent, or domestic partner adoption. These procedures ensure that both partners are considered legal parents of their child.
Now that same-sex marriage is legal in Massachusetts and California, same-sex parents should be considered legal parents of the child from the time of the child’s birth, like heterosexual married couples. The same is theoretically true in Connecticut, Vermont, New Hampshire, New Jersey, Oregon, and Washington, D.C., which grant legal parent status to partners of birth parents when a child is born during a domestic partnership or civil union.
However, attorneys in California and Massachusetts (and in other states that recognize same-sex relationships) continue to recommend that same-sex partners complete stepparent adoptions on behalf of the nonbiological parent. The adoption serves as extra protection if the parties travel to a state that doesn’t recognize same-sex relationships, and also means that the federal government should recognize the parent-child relationship for purposes of Social Security and other federal benefits.
For same-sex couples in other states, both parents are not automatically considered legal parents. The second parent is not a legal parent and has few, if any, legal rights with regard to the child, unless a second parent or stepparent adoption has been completed.
If you and your partner are in this situation, it's smart to know the laws that affect you -- and to make a parenting agreement setting out your understanding about sharing rights and responsibilities for your child. Doing so now may prevent considerable legal and emotional grief down the road. (To learn about second parent or stepparent adoptions, read Nolo's article Stepparent Adoptions.)
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