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.

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.)

The Second Parent's Fate After a Break-Up

The status of a second parent (the nonlegal, nonbiological parent) is most likely to become an issue if a same-sex couple splits up. When heterosexual parents separate and can't agree on custody terms, courts will step in to resolve the troubles, but 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 wrong not to grant at least some continuing contact with the child. These courts may call the second parent a "de facto parent" or "psychological parents," 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, were taken to ensure that joint parenting would take place, and
• any co-parenting agreements or other documents regarding the child that had both partners listed as parents, such as birth announcements.

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.

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.

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

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com