Nassau County Family Law Blog

Friday, March 18, 2016

Special Issues Confronting Lesbian and Gay Parents When They Adopt

What areas of concern face gay and lesbian when they adopt?

Adopting children is a life-changing event for any couple, but it becomes a more complicated legal process when the adopting couple is gay or lesbian. Now that homosexual marriage is legal in all 50 states, the problem is being given more serious attention. One of the difficulties for these couples is that laws governing adoption differ from state to state.

How Lesbians and Gay Men Become Parents

In some cases, one member of a gay or lesbian couple already has a child or children, but, if they are starting a family by adopting a child, the possibilities include:

  • One partner in a lesbian couple gives birth to a child (usually through artificial insemination)
  • One partner in a gay couple donates sperm to fertilize a donor egg and uses a surrogate mother

In either of these cases, the nonbiological parent becomes a legal parent through second or stepparent adoption.

In some states, same-sex couples can adopt children jointly, meaning that both partners are legal parents from the outset. For same-sex couples in some states, however, such as Mississippi and Utah, same-sex couples are still forbidden to adopt. It is, therefore, essential that gay couples investigate the laws in the state in which they reside.

Because the decision to legalize gay and lesbian marriages throughout the U.S. is still new, attorneys continue to recommend that the nonbiological parent in same-sex couples complete stepparent adoptions so that there is no remaining ambiguity should the couple move to another state or split up or should the biological parent predecease the nonbiological parent. The adoption also protects the parent-child relationship in regard to Social Security and other federal benefits.

Legal parents have certain rights and responsibilities. They have the right to live with the child, either full-time or part-time and to make decisions about the child's health, education and well-being. Legal parents are also responsible for financially supporting the child. When they adopt jointly, whether gay or straight, both partners are automatically considered legal parents, whether they stay together or eventually separate or divorce. In states in which it is legal, not only can same-sex couples adopt jointly, but they can adopt the biological child of the other partner, ensuring legal parenthood.

What Happens if a Gay or Lesbian Couple Breaks Up?

If the nonbiological parent has not legally adopted the child, his or her relationship with the child may be in jeopardy if the couple divorces. While some courts recognize the concept of a "de facto " or "psychological" parent, signifying that the individual has lived with the child and fulfilled parental duties, and that it would be detrimental to the child to be completely separated from this "parent," there have been many instances where the nonbiological parent has been treated as a stranger and prevented from having visitation with the child when the couple splits up. Such decisions are clearly cruel to both nonbiological parent and child and will likely cause permanent psychological damage.

Benefits of a Parenting Agreement

No couple, gay or straight, enters into a marriage with the expectation that the relationship will end, but we all know the grim statistics. It is always best to plan for the worst case scenario. If joint parenting isn't available to you as an option, you should consult with a highly competent family attorney to write up a legally binding parenting agreement.

Such an agreement will make clear that, though only one of you is the legal parent, you both consider yourself parents of your child, even if your marriage ends in dissolution. This parenting agreement should cover all issues that may become relevant in case you separate, including visitation, access to school and social events, and the financial responsibilities of both partners.

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