Gay and Lesbian Adoption and Parenting

Learn more about the legal rights of same-sex parents, from adoption to co-parenting to second parent rights.

Lesbian and gay couples have been expanding their families through adoption for decades. There are special issues for lesbian and gay singles and couples who want to adopt or raise children. This article addresses adoption and parental rights for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) singles and couples. If you have specific questions, contact an attorney who specializes in LGBTQ family law rights in your area.

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 a second parent or stepparent adoption. 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.

Some same-sex couples may choose to adopt children jointly so that both partners are legal parents from the beginning. Lesbian and gay singles and couples can adopt children through agencies or independent adoptions, and even through international adoptions (though international adoption may be more difficult now that the United States has adopted the Hague Convention).

In a historic ruling in 2015, the United States Supreme Court (USSC) legalized same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644). As a result of the ruling, all 50 states have overturned or rewritten laws to allow married same-sex couples the privilege of adopting children. If you are married and would like to adopt your spouse's biological child, you can apply for a stepparent adoption in your state.

However, if you're unmarried, the journey to building your family may become more complicated if you live in a state that doesn't allow second parent adoption. Second parent adoption is a legal procedure where an unmarried partner applies to adopt the other partner's biological child. For example, if you and your partner are not married, but your partner has a child from a previous relationship, and you'd like to become that child's other legal parent, you can apply for a second parent adoption in your state. Once the court hears your case and approves the adoption, you become the second legal parent, with the same rights and responsibilities as if you were a biological parent.

Although the United States has made significant progress in the fight for equality for the LGBTQ community, several states still prohibit unmarried, same-sex couples from applying for second parent adoption. 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. The Human Rights Campaign website also provides a Maps of State Laws & Policies section with maps covering joint adoption and second parent adoption laws by state.

If you live in a state that prohibits second parent adoption, you should speak with an attorney about creating a co-parenting or custody agreement, which will detail each parent's rights and responsibilities for the child. Although some states don't recognize these agreements as legally binding, if you and the other parent experience trouble in your relationship in the future, you can present the agreements as evidence of your parental intentions if you end up in court later.

Know Your Local Laws

Because it's 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 Human Rights Campaign (www.hrc.org), 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).

Adoption Roadblocks

It's no secret that throughout history gay and lesbian couples have faced roadblocks when creating their families. Although every state in the nation allows married same-sex couples to adopt, whether privately or through state foster care, couples should prepare for potential roadblocks along the way.

The legal process for adoption is now the same for same-sex couples as for opposite-sex couples. However, private and religious adoption agencies are fighting for the right to deny well-qualified, loving couples the right to adopt by arguing it violates religious freedoms. As of 2020, the United States Supreme Court has not issued a ruling on its most recent religious freedom adoption case.

It's important for prospective parents to thoroughly research agencies that welcome same-sex adoptions to avoid any potential heartbreak.

International Adoption

Although international adoption is available to married heterosexual couples throughout the world, same-sex couples often face challenges adopting from countries that do not recognize same-sex marriage. Some countries explicitly ban adoptions to the same-sex community, regardless of qualifications.

There are very few countries that permit international adoption to same-sex couples. If the country you wish to adopt from does allow adoption, the legal process may take significantly longer and be more expensive than domestic adoption. If you're successful with international adoption, you may still need to go through the United States stepparent adoption process to ensure you receive the full rights and benefits of adoption once you return to the your home state.

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, the law automatically recognizes both partners as legal parents. As a result, even if they split up, they both remain legal parents.

While same-sex marriage is legal throughout the country, there are still unanswered questions about both parents' presumption of biological parentage. In other words, although the law now recognizes same-sex marriages, couples often hit roadblocks when attempting to define the biology of their family.

For example, if an opposite-sex couple marries and the wife births a child, the court (and law) presume that the husband is the biological father. As a result, the father automatically has rights and responsibilities for the child. In a same-sex marriage, however, when one partner births a child, the law is often unequal in applying the biology standard to the other spouse. While some states have progressed in giving same-sex couples the same rights as opposite-sex couples, some states continue to make it difficult for same-sex couples to create their families.

Whether you're in a state that recognizes your rights as a same-sex married couple or not, attorneys continue to recommend that same-sex partners complete stepparent adoptions on behalf of the nonbiological parent. The adoption serves as extra protection for the family and ensures the parents and the children receive the same state and federal benefits as an opposite-sex family.

The Second Parent's Fate After a Break-Up

For unmarried, same-sex couples, the law doesn't consider the second parent a legal parent in some states. As a result, the nonbiological parent has few, if any, legal rights with regard to the child unless the couple applied for and received a second parent or stepparent adoption.

A second parent's status (the nonlegal, nonbiological parent) is most likely to become an issue if a same-sex couple splits up. When unmarried, heterosexual parents separate and can't agree on custody terms, courts will resolve the troubles. But, unmarried gay and lesbian couples don't usually have these built-in protections.

In fact, many courts say that a second parent has no rights regarding the child of a partner, even if the second parent has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love. At worst, the second parent may be treated by the courts as a stranger, giving the legal parent an absolute right to deny all future contact between the ex and the child.

A handful of courts take the opposite view, awarding visitation to a nonlegal parent after finding the second parent to be such a critical part of the child's life that it would be detrimental to the child not to grant at least some continuing contact with the child. These courts may call the second parent a "de facto parent" or "psychological parent," meaning that the parent has lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal or biological one.

In addition to looking at the reality of the parent-child relationship in these situations, courts may consider the following factors in the relationship between the child and the nonlegal parent:

  • the length of the relationship between the adults, and whether they and the child lived together
  • the intentions of both partners to parent together and what steps, if any, they took to ensure that joint parenting would take place, and
  • any co-parenting agreements or other documents regarding the child with both partners listed as parents, such as birth announcements.

Married same-sex couples going through a divorce, theoretically, should have the same protections as opposite-sex couples when it comes to child custody and visitation. However, as discussed earlier in this article, there are still discrepancies throughout the United States on how courts handle these issues. If you're contemplating a divorce, but you're worried about your rights as a parent, speak with an experienced attorney in your state before you file your paperwork.

Make a Parenting Agreement

If you've committed to joint parenting but can't adopt (or choose not to), the first thing you should do is write up a parenting agreement. The agreement should specify that, although only one of you is the legal parent, you both consider yourselves parents of your child, with all the rights and responsibilities that come with parenting. Include language that clearly states your intentions to continue co-parenting even if you end your relationship.

It's also wise to go further and cover financial issues, as well as the legal parent's intention to provide the second parent with generous visitation, access to school and social events, and so forth, in the case of a break-up.

Guidelines for Co-Parents

If the unfortunate does occur and you split up, honor your agreement. You've both agreed to co-parent without the legal advantages and protections of adoption, so it's up to both of you to put your differences aside and make your child's needs a priority. If you can't resolve the issues amicably, you must take your chances with your state's court system. The outcome of such a battle is anything but certain.

See A Legal Guide for Lesbian and Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo) to learn more about same-sex partners' legal rights.

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