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4. What the Law Says
Only one State, Florida, specifically bars the adoption of children by gay and lesbian adults. Similar legislation was introduced in Utah prohibiting unmarried couples, including same-sex couples, from adopting children. The bill claims it is not in a child's best interest to be adopted by persons "cohabiting in a relationship that is not a legally valid (binding) marriage". The bill passed the State of Utah's House and Senate in February 2000 and is waiting the Governor's signature. The Governor has pledged to sign it.
Yet, in April 2000, Vermont lawmakers approved legislation that makes the State the first in the nation to recognize same-sex couples right to form "civil unions". Partners in a civil union would be given the same benefits of married couples - the ability to transfer property, to make medical decisions for each other, to be eligible for inheritance, and the necessity to dissolve the union in Family Court (equivalent to a divorce). More than 30 other States have tried to avoid such unions through the passage of the Defense of Marriage Act. The act defines marriage as a union between a man and a woman and denies recognition of same-sex marriages performed elsewhere.
Legislation has also been introduced in Mississippi that would ban gay and lesbian couples from adoption and forbid the State of Mississippi from recognizing gay and lesbian adoptions that have previously been granted by other State courts - an unprecedented provision. Anti-sodomy statutes in 19 states and the lack of legal recognition of homosexual couples complicate adoption in the states that don't specifically prohibit gay and lesbian adoption.
Professor William Adams Jr., co-counsel in a case challenging Florida's ban on adoptions by gays and lesbians, has noted courts are increasingly turning to expert testimony to resolve questions in gay rights cases. He theorizes that there are several factors contributing to this trend, among them the courts' desire to justify their decisions in light of the controversy surrounding the issue and the efforts of gay litigants and civil rights organizations to provide the court with information. Although Adams sees this as a positive step, he comments, "citation to social science data should not be mistaken for a court's full understanding of it, however, because courts sometimes struggle to make sense of the research, or strain to ignore it".13
Nine States - California, Massachusetts, New Jersey, New Mexico, New York, Ohio, Vermont, Washington and Wisconsin - and the District of Columbia have allowed openly gay or lesbian individuals or couples to adopt. Although some joint adoptions have been successful, the most common practice is for a single person to apply as the legal adoptive parent of the child. Couples who both want custody then apply for a second parent, or co-parent, adoption.
Second parent adoption or the adoption by non-marital partners, leaves the parental rights of one legally recognized parent intact and creates a second legally recognized parent for the adoptive children. Second parent adoption, which has become routine for children of heterosexual stepparents, is the only way for gay couples to both become legal parents of their children. 14 Although state statutes generally provide a "stepparent exception", these exceptions emphasize the existence of a legal marriage between the biological parent and the stepparent. 15
This growing practice was tested in a landmark case in Vermont in 1993. Jane Van Buren had given birth to two boys through anonymous donor insemination. According to the law, only Ms. Van Buren was considered their parent - her partner, Deborah Lashman, had no legal standing. The couple filed a petition for a second parent adoption, asking the probate court to allow Ms. Lashman to adopt the children while leaving Ms. Van Buren's parental rights intact. The court denied the adoptions because Ms. Lashman was not married to the biological parent. On June 18, 1993, the Vermont Supreme Court unanimously reversed the decision of the lower court and awarded joint custody to the couple. 16 With this decision, the Vermont Supreme Court became the first State Supreme Court to recognize lesbian co-parent adoptions. As a result of this finding, other couples are likely to find second parent adoptions easier to accomplish in Vermont and in other areas of the country.
Second parent adoptions (by unmarried couples) have been granted by the courts (the approvals were generally from the lower level courts) in 21 States and the District of Columbia: Alabama, Alaska, California, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Vermont and Washington. 17
Factsheet revised April 2000.
13 Adams, W. E. back
14 Lambda Legal Defense and Education Fund. (1997). Lesbian and Gay Parenting: A Fact Sheet. New York: NY: Lambda Legal Defense and Education Fund. back
15 Mishra, D. The Road to Concord: Resolving the Conflict of Law Over Adoption by Gays and Lesbians. (1996). Columbia Journal of Law and Social Problems, 30 (1): 91-136. back
16 Patterson, C. J. back
17 Lambda Legal Defense and Education Fund. back
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