First comes love, then comes marriage. Then comes the confounding labyrinth of US state adoption laws that are not only creating substantial confusion for same-sex couples but are actually working to prevent such couples from adopting, despite the Supreme Court’s clear recognition of marriage, and its benefits, as a fundamental right.
While many states have embraced the natural progression of same-sex marriage to same-sex adoption, others still cling to the “traditional” definition of family—refusing to align parentage, guardianship, and custody laws with the changing nature of today’s family makeup.
What is parentage?
Understanding adoption laws necessarily begins with an understanding of the concept of “parentage.” Parentage refers to the legal relationship between a parent and a child, which creates certain rights and obligations between two people—similar to that of marriage, guardianship, or even employer/employee. Under the Uniform Parentage Act (which is followed at least in part by all 50 states), the parentage bond is created in the following ways:
- Giving birth to a child
- Being married to the child’s biological mother at the time of conception
- Voluntarily acknowledging paternity when the child is born
- Testing positive for paternity through a DNA test
Establishing the parentage link through the first four criteria is relatively straightforward. Creating the bond through adoption, however, can be a much more difficult process, particularly since each US state has its own distinct adoption procedure—including variations in who’s eligible to adopt a child.
Types of Adoption
There are two basic types of adoption available under general US laws. The first is known as a second-parent adoption, and it involves establishing a parentage bond between the child and the partner or spouse of the child’s parent. Generally speaking, a child can only have two legal parents. Accordingly, a second-parent adoption normally requires at least one legal parent to relinquish his or her rights in favor of the adoptive parent. This can be accomplished voluntarily or involuntarily (the later requiring a trial on the merits). However, several states have carved out a three-parent model in very limited circumstances, including children conceived via donor egg or sperm, or California’s more general measure allowing more than two legal parents in certain scenarios.
A more common scenario is the joint adoption model, which occurs when a parentless child is adopted by two adoptive parents—often out of foster care or a similarly difficult situation. There are variable permissions with regard to what sorts of couples can petition for the joint adoption of a child, as well as disjointed legislative responses to the concept of single-parent adoption.
Status of same-sex adoption
All 50 states recognize the rights of opposite-sex married folks to adopt a child (assuming the adoption is in the child’s best interests). Nontraditional family structures, however, are another matter. Apparently not all 50 states have received the memo that marriage, including all benefits created therefrom, is a fundamental right to be equally recognized and applied to both opposite- and same-sex couples.
Only one state outrightly prohibits adoption by same-sex couples: Mississippi. There, a law expressly excludes same-sex spouses from adopting. A federal judge declared the statute unconstitutional as of April 1, 2016; however, it remains to be seen whether the legislature will follow-up with a repeal.
Other states have been less overt in their discrimination. Some rely on backdoor restrictions to severely limit or disallow same-sex couples the same access to parentage as their opposite-sex counterparts enjoy. For instance, some states and counties rely on private organizations to provide foster home services for children in state custody. Many of these organizations have a religious affiliation, which allows them to exclude same-sex spouses from eligibility as foster parents, making it difficult for such couples to adopt through the foster care system.
Fortunately, many states—including Georgia, Kentucky, Louisiana, Missouri, Ohio, and South Dakota—which have traditionally banned same-sex couples from adopting are not only embracing same-sex couples as potential permanent parents but are also taking steps to make their adoption forms and paperwork gender neutral.
States that oppose adoption by same-sex couples are in the minority, and the obstacles facing these potential parents are dwindling. While adoptions by single parents and unmarried couples remain somewhat more stigmatized in the United States, the adoption rights of same-sex couples are, for the most part, recognized as a fundamental component to the well-being of America’s children, particularly those languishing in foster care. If you are someone you know is running into an issue with that, find a lawyer to help.
Meeting a need
The number of parentless children in the United States is staggering. According to the U.S. Children’s Bureau, there are over 415,000 children in foster care in America. Of these, 8 percent are housed in institutions, and 6 percent are sent to live in group homes.
In 2014, the median age of a child in foster care in the United States was eight, and more than half of all children in foster care remained in the system for more than a year. And, despite the limitations described above, same-sex couples are six times more likely than opposite-sex couples to open their homes as foster parents for this enormous population of children. It follows that allowing same-sex couples to adopt not only recognizes the fundamental rights of the potential parents but also helps foster children find a loving home.