Same-Sex Parenting: When Adoption Isn’t Possible

Learn about protections for same-sex parents who are raising a child without the benefits of legal adoption.

Some lesbian and gay couples are fortunate enough to live in a state where same-sex partners 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.

For many same-sex couples, however, joint or second-parent adoptions are not available. (A few states — Florida, Mississippi and Utah — absolutely bar same-sex partners from adopting. In many other states, the outcome is uncertain; see “The Lucky Few,” below.) This means that only one member of a same-sex couple is usually recognized as a legal parent and the other partner has few, if any, legal rights with regard to the child. 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. Doing so now may prevent considerable legal and emotional grief down the road.

The Lucky Few: States That Permit Second-Parent Adoptions

As of January 2004, ten states permit second-parent adoptions by same-sex couples based on either state statutes or a court decision: California, Connecticut, the District of Columbia, Illinois, Indiana, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont.

In 14 other states, trial courts have granted second-parent adoptions to same-sex couples. In other words, these states do not have laws permitting adoptions statewide, but adoptions may be granted in county family courts. These states are Alabama, Alaska, Delaware, Hawaii, Iowa, Louisiana, Maryland, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington.

In states where there is no law permitting second-parent adoptions, and counties where there is no history of granting them, the odds of a trial court granting an adoption vary. Many of the courts that approve these adoptions are located in metropolitan areas where judges may be more liberal than their rural counterparts. To find out whether an adoption might be allowed in your county, your best bet is to ask a local attorney who handles adoptions. For a state-by-state overview of second-parent adoption laws and cases, visit Lambda Legal’s website or the website of the National Center for Lesbian Rights.

The Second Parent’s Fate

The status of a second parent (the non-legal, non-biological parent) is most likely to become an issue if a same-sex couple splits up. When heterosexual parents separate and can’t agree on reasonable custody, support, and visitation 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 she or he 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 his or her ex and the child. Thankfully, a handful of courts take the opposite view, awarding visitation to a non-legal parent after finding him or her to be such a critical part of the child’s life that it would be wrong not to grant at least some rights to stay connected with the child. These courts may call the second parents “de facto parents” or “parents in reality,” meaning that they have lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal one.

Massachusetts, New Jersey, and Rhode Island: Three States That Favor Family Ties

The Supreme Courts of both New Jersey and Massachusetts have granted “de facto” parental status to ex-partners, permitting them to obtain visitation with the children that they helped to raise. (ENO v. LMM, 711 N.E.2d 886 (1999) and VC v. MJB, 163 N.J. 200 (2000).) This means that all lower courts in those two states must consider ex-partners’ petitions for visitation.

In both states, the following factors characterized the relationship between the child and the non-legal 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.

In September 2000, Rhode Island joined the ranks of these more-flexible states when its Supreme Court ruled in favor of visitation in Rubano v. DiCenzo, 759 A.2d 959.

Of course, now that same-sex marriage is legal in Massachusetts, same-sex parents will not need to rely on court opinions to validate their parent-child relationships. Like heterosexual married couples, both partners will be considered legal parents of the child from the time of the child’s birth.

As mentioned, not all courts are willing to consider the plight of non-legal parents. Courts in California, Florida, Illinois, and New York have denied ex-partners visitation without taking into account any aspect of their relationship with the children they helped raise. In short, they have found the ex-partner to be the equivalent of a legal stranger and have given priority to the legal parent’s wishes to terminate the relationship for both her and the child.

California and New York: Isn’t It Ironic?

The denial of visitation to ex-partners may seem particularly strange coming from California and New York, two states that permit joint and second-parent adoptions. The conflicting messages coming from these states provide good reason for residents to consider the benefits of formal adoption. But if you live in one of these states and choose not to adopt, be very sure to make a parenting agreement (discussed below) and honor it in the event of a breakup.

In California, beginning in January 2005, same-sex couples registered as domestic partners will be treated the same as heterosexual married couples—including in the realm of parenting. Adoptions will no longer be necessary, as second parents will automatically be legal parents if the child is born while the domestic partnership is in effect.

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 other parent with generous visitation, access to school and social events, and so forth.

Then, if the unfortunate does occur and you split up, honor your agreement. Since you’ve both agreed to co-parent without the legal advantages and protections of adoption, 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.

Guidelines for Co-Parents

Same-sex parents might find it helpful to read Protecting Families: Standards for Child Custody in Same-Sex Relationships, by Mary Bonauto, the attorney who argued and won the Massachusetts Supreme Court case ENO v. LLM. This guide offers ten proposals for lessening conflict in co-parenting intentions. The proposals cover matters such as being honest about the nature of each parent’s relationship with the child, considering disputes from the child’s perspective, and trying to reach a voluntary resolution of disputes. They may help you work out your difficulties and create an arrangement that’s best for the health and happiness of your child. You can download the guide from the GLAD (Gay & Lesbian Advocates & Defenders) website at www.glad.org. Look for it in their list of publications.

Copyright 2004 Nolo