Discover more concerning the legal rights of same-sex parents, from adoptions to co-parenting to second parental rights. Lesbian and gay couples have been growing their family’s using adoption for decades. There are particular issues for lesbian and gay singles and couples that want to adopt or raise children. This post discusses adoption and parental rights for LGBTQ singles and couples. When you have certain questions, contact an attorney that specializes in LGBTQ family law rights near you.
Lesbians and gay men bring children into their lives in several ways. In lesbian couples, often, one woman births a child, and the other woman —the secondary parent—becomes a legal parent through a secondary parent or step-parent adoption. Gay men can do basically the same thing through a surrogate to deliver a child born from one man’s sperm and a donor egg.
Many same-sex couples can choose to adopt children jointly so that each of the partners are legal parents from the start. Lesbian and gay singles and couples may adopt children through agencies or private adoptions, and even through international adoptions. (Although international adoption may be more challenging since the United States has accepted the Hague Convention).
In a history making ruling in 2015, the United States Supreme Court legalized same-sex marriages across the country. (Obergefell v. Hodges, 576 U.S. 644). As a consequence of the ruling, every state has reversed or re-written laws to enable married same-sex couples the entitlement of adopting children. When you are married and want to adopt your spouse’s biological child, you can petition for a step-parent adoption in the state you live in.
Second Parental Adoptions
Nevertheless, when you’re unmarried, the voyage to building your family might become more challenging if you live in a state that does not allow second parental adoptions. Second parental adoption is a legal process in which an unmarried partner petitions to adopt the other partner’s biological child. For instance, if you and your partner are unmarried, but your partner has a child from a prior relationship, and you would like to become their child’s other legal parent, you can petition for a second parental adoption in your state. After the court adjudicates your case and approves of your adoption, you become the second legal parent, with the identical rights and responsibilities as if you were the child’s biological parent.
Although the United States has made considerable progress in the fight for equality for the LGBTQ community, many states still forbid unmarried, same-sex couples from petitioning for second parental adoptions. For a state-by-state summary of second parental adoption laws and cases, go to the Lambda Legal Defense and Education Fund’s website at www.lambdalegal.org. The Human Rights Campaign website also offers a Map of State Laws & Policies area with maps covering joint adoption and second parental adoption laws by state.
When you live in a state that forbids second parental adoptions, you should consult with an attorney about devising a co-parenting and/ or custody agreement, in which is going to detail each parent’s rights and responsibilities for the child. Even though some states do not acknowledge these agreements as legally binding, when you and the other parent experience challenges in your relationship down the road, you can submit the agreements as proof of your parental intentions should you end up in court later.
Be Aware of Your Local Laws
Since it’s vital that you are aware of your local law prior to you deciding to raise a child together, it is strongly recommended that you find legal advice when you are thinking about parenting. Find gay and lesbian parenting associations in your state. If you don’t know where to begin, start at the Queer Resources Directory ( www.qrd.org), in which includes a lot of parenting websites. The following organizations can also give you information: Gay and Lesbian Advocates and Defenders (www.glad.org)The Human Rights Campaign (www.hrc.org), The National Center for Lesbian Rights (www.nclrights.org), and Lambda Legal Defense and Education Fund (www.lambdalegal.org).
It’s common knowledge that throughout history gay and lesbian couples have faced obstacles when trying to create their families. Even though each state in the US permits same-sex married couples to adopt, either privately or through an agency, couples should prepare for potential obstacles along their way. The legal procedure for adoption is now identical for same-sex couples as for opposite-sex couples. Nevertheless, private and spiritual adoption agencies are advocating for the right to disallow suitable, loving couples the right to adopt by the argument it violates spiritual freedoms. As of 2020, the United States Supreme Court has not placed a ruling on its most recent spiritual freedom adoption case. It’s important for potential parents to comprehensively research agencies that accept same-sex adoptions to avoid any possible heartbreak.
Even though international adoptions are available to married straight couples around the world, same-sex couples typically face challenges adopting from countries that do not acknowledge same-sex marriages. Many countries explicitly forbid adoptions to the same-sex community, in spite of qualifications. There are hardly any countries that permit international adoptions to same-sex couples. If the country you are wanting to adopt from does permit adoption, the legal process may take considerably longer and be more costly than domestic adoptions. When you’re successful with an international adoption, you might still need to go through the US’s stepparent adoption process to guarantee you receive your full rights and benefits of adoption once you get back to your home state.
Legal Parents: Rights and Responsibilities
A legal parent is an individual that has the right to reside with a child (full and/ or part-time) and to make decisions concerning the child’s health, schooling, and welfare. A legal parent is also responsible for supporting the child financially. When a married couple has or shares an adoption to a child, the law systematically acknowledges the couple as legal parents. Therefore, even should they break up, they still remain legal parents.
Whereas same-sex marriage is legal across the country, there are still unresolved questions concerning both parents’ assumption of biological parentage. That is to say, even though the law now acknowledges same-sex marriages, couples frequently hit obstacles when attempting to describe the biology of their family.
For instance, when an opposite-sex couple gets married and the wife gives birth to a child, the court (and law) assume that the husband is the father biologically. Consequently, the father systematically has rights and responsibilities for the child. In same-sex marriages, on the other hand, when one partner gives birth to a child, the law is frequently different in applying the biology convention to the other spouse. Whereas some states have advanced in offering same-sex couples with the same rights as opposite-sex couples, many states continue to make it challenging for same-sex couples to develop their families.
Whether you live in a state that acknowledges your rights as a married same-sex couple or not, attorneys continually suggest that same-sex partners fulfill stepparent adoptions on behalf of the non-biological parent. The adoption serves as extra safeguard for the family and guarantees the parents and the children receive the identical state and federal benefits as opposite-sex families.
The Second Parent’s Outcome Following a Break-Up
For same-sex unmarried couples, the law doesn’t deem the second parent a legal parent in many states. Consequently, the non-biological parent has little, if any, legal rights in regard to the child unless the couple petitioned for and received a second parental or stepparent adoption.
A second parent’s standing (the non-legal, non-biological parent) is most likely to become an issue when a same-sex couple breaks up. If unmarried, straight parents that separate and are unable to agree on custody conditions, courts are going to resolve them. However, unmarried lesbian and gay couples don’t typically have these built-in safeguards.
Actually, many courts declare that a second parent has no rights in regard to the child of a partner, even when the second parent has spent years assisting with homework, fixing up scrapes, and giving and receiving love unconditionally. Worst case, the second parent might be regarded by the courts as an outsider, giving the legal parent an out-and-out right to restrict all future contact between the ex and their child.
A couple of courts take the opposite outlook, granting visitation to a non-legal parent after discovering the second parent to be such a vital part of the child’s life that it would be harmful to the child not to grant at least some continual contact with the child. These courts might call the second parent a “psychological parent” or “de facto parent” or meaning that the parent has resided with the child and met every responsibility and factor of nurturing and discipline such that the only relationship not satisfied is the legal and/ or biological one.
Along with looking at the reality of the parent-child relationship in these cases, courts might consider the following aspects in the relationship between the child and the non-legal parent:
- the time of the relationship among the adults, and if they and the child resided together
- the intentions of both partners to parent jointly and what steps, when any, they took to guarantee that joint parenting is going to take place, and
- any co-parenting contracts or other paperwork regarding the child with both partners declared as parents, like birth announcements.
Same-sex married couples enduring a divorce, in theory, should have the same safeguards as opposite-sex couples in regard to child custody and visitation. On the other hand, as posted above, there are still inconsistencies throughout the US on how courts oversee these matters. If you’re thinking about a divorce, but you’re concerned about your rights as a parent, consult with an experienced attorney near you prior to you filing your paperwork.
Create a Parenting Contract
If you’ve devoted to joint parenting but are unable adopt (or decide not to), the first thing you need to do is create a parenting contract. The contract should declare that, even though only one of you is the legal parent, you both deem yourselves parents of the child, with all the rights and responsibilities that come along with parenting. Include terminology that undoubtedly states your intentions to continue co-parenting even when you end your relationship. It’s also a good idea to go a little more and cover financial matters, in addition to the legal parent’s goal of providing the second parent with considerable visitation, access to social events and school, and so on, in the case of a break-up.
Should the unfortunate does happen, and you break-up, keep to your agreement. You have both agreed to co-parent without the legal benefits and safeguards of adoption, so it’s up to both of you to put your disagreements aside and make your child’s needs more prioritized. If you are unable resolve the matters cordially, you might need to take your chances with the court system in the state you live in. The result of such a battle is far from certain.
Melissa Heinig, A. (2020, November 20). Gay and lesbian adoption and parenting. www.nolo.com. Retrieved September 29, 2022, from https://www.nolo.com/legal-encyclopedia/gay-lesbian-adoption-parenting-29790.html
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