Legal Issues for Gay and Lesbian Adoption

Gay and lesbian couples trying to adopt a child often have to deal with legal issues that are unique to them.

Same sex couples can have their own children. For lesbian couples, it means finding a male sperm donor or visiting a sperm bank and one of them getting impregnated using the donor sperm. The partner giving birth becomes the biological parent while the other has to adopt the child. However this type of adoption is not permitted in all states. Gay men to can bring a child into their lives by using the services of a surrogate mother.

Every state has its own set of adoption laws that can vary greatly from one state to another. In some states same sex couples can adopt a child as legal joint parents. In these states same sex couples can use the services of an adoption agency or make the arrangements by themselves. They can also adopt internationally in such states.

In most states however, same sex couples cannot opt for stepparent or joint adoption. In fact Florida has a blanket ban on same sex couples adopting children. Please check with your state laws to know whether your state permits same sex couples to adopt a child.

If you are a same sex couple planning to adopt a child, you must under the legal issues associated with same sex adoption. Adopting and raising a child is not easy. You can seek advice from the many same sex parenting groups across the nation. You can also the Queer resources Directory. For more information, please visit the following sites:

• Lambda Legal
• National Center for Lesbian Rights
• Gay and Lesbian Advocates and Defenders.

Legal Parents – Rights and Duties

A legal parent is the person who has the right to live with the child and take decisions affecting the child’s welfare such as education, health care and general well being. A legal parent must also support the child financially. In case of a married heterosexual couple, the husband and wife are considered as the legal parents of the child and will continue to remain the child’s legal parents even after divorce.

In some states same sex couples can jointly adopt a child. In a few states, one partner can adopt the other’s biological child through stepparent or domestic partner adoption. Adoption is important as it allows both partners in a same sex marriage or civil union to be considered the legal parents.

Iowa, Vermont, Connecticut, Massachusetts and New Hampshire allow same sex marriages. Same sex couples are considered the legal parents of the child from the time of birth in these states. New Jersey and California consider same sex couples to be the legal parents from the time of birth as long as the couple is in a registered domestic partnership or civil union.

Never assume that you will be accorded the legal parent status automatically on the birth or adoption of a child. Biological parents should complete the formalities for stepparent or second parent adoption. This serves as a backup protection if you and your same sex partner travel or move to a state that does not recognize your same sex relationship or does not automatically recognize a same sex couple as the legal parents of a child.

In states where there is still a ban on same sex adoption, the non-biological parent has limited rights and is not considered the legal parent.

If you are a same sex couple, you should make arrangements about your children in accordance with your state laws. You can prepare a parenting agreement setting out the rights and responsibilities of you and your partner towards the child. This will help save money and trouble later on.

After A Split – Second Parent’s Rights

When a same sex couple split, one major issue is the issue of the second parent’s rights concerning the child. The unique nature of same sex unions makes this extremely complicated. In case of a heterosexual couple, the court will decide on who gets custody of the child if the spouses cannot agree on that issue. However in a same sex couple, there is a lot of uncertainty about the rights of the second parent.

In most states the law does not grant any rights to the second parent no matter what role that parent played in the child’s life. It is not uncommon for a court to treat the second parent as a complete stranger and give the first parent absolute rights regarding the child including the right to dictate all future contact between the second parent and the child.

Some courts on the other hand have taken a more flexible and softer approach and grant the second parent visitation rights if that parent has played a significant part in the child’s life. Second parents are often referred to as de fact parents by such courts meaning that the second parent has lived with and raised the child like a regular legal parent.

When deciding whether or not to grant any rights to the second parent the court will consider the following:

• The steps taken by the partners about joint parenting that establishes the intent of the partners to raise the child jointly
• The duration of the relationship and whether the child was staying with the couple
• Parenting agreement or other document between the partners about the child

Parenting Agreements

If you and your same sex partner are committed to jointly raising the child, you should prepare a parenting agreement reflecting the fact that although only one of your is the legal parent of the child, the two of you intend to consider each other as the legal parent besides yourselves. The agreement must list out the rights and responsibilities of the two of you with regard to the child. The agreement must specifically state that the two of you intend to continue parenting even in case the relationship ends.

The agreement should address financial issues including the cost of housing, food and education. An ideal parenting agreement should also specify who will have custody of the child (generally the legal parent) and that the other would have generous visitation rights.

If the relationship does end, both partners should make best efforts to honor the agreement. An all out attempt must be made to resolves the issues before going to court. Once the matter reaches the court, there is no guarantee that you will get what you want.

You can learn more about parenting agreements for same sex couples by visiting the website of Gay and Lesbian Advocates and Defenders.

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