Same-sex adoption laws have come a long way in the United States. For many years, same-sex couples could not adopt together due to discrimination and adoption requirements that they couldn’t legally meet.
So, why is same-sex adoption legal today?
It all changed in March 2016, when a federal judge overturned the gay adoption ban in Mississippi. Thanks to the marriage equality ruling of Obergefell vs. Hodges, a precedent was set; because marriage was now legal to same-sex couples, it only logically followed that they couldn’t be denied the rights of any other married couple to adopt a child.
This was a monumental moment for gay adoption laws in the U.S., shaping the legislation and legality of the act around the country. However, while married couples can now adopt jointly in any state, there are still some legal complications that arise in adoptions with unmarried LGBT couples. As always, if you’re considering adoption for your LGBT family, it’s best to consult with an experienced adoption attorney in your state.
How LGBT Adoption Laws Work Today
If you are a married same-sex couple, you have the right to adopt a child jointly just like any heterosexual married couple does. Whereas prior to 2016, there were states where gay adoption was illegal, now there are none. As long as you meet the state requirements to adopt, you can move forward with your adoption process.
Most states allow gay adoption for individuals, married couples and couples in a domestic union. The path that you take to complete your adoption will depend largely on the laws of your state.
In almost any state, any individual can legally adopt a child. However, for unmarried couples who want to adopt a child (either heterosexual or homosexual), it’s not always possible to do so jointly. While married couples and single parents can adopt, many states prohibit unmarried couples from adopting a child together. In many of the states where gay adoption was illegal for so long, it was because requirements were based on marital status, not sexual orientation. However, even though same-sex adoption laws must allow all married LGBT couples the right to adopt, this ruling doesn’t protect the right of unmarried couples to adopt jointly — as states can still enforce this marital restriction.
For unmarried LGBT couples, it is possible for an individual to adopt and raise the child with his or her partner, who would not be a legal parent. However, when adopting as a couple, you should both obtain parental rights if at all possible.
It is important that both partners have legal custody of an adopted child; this ensures each parent’s rights in the event that something happens to the other, and it gives your child the security of two legal parents. If you’re an unmarried couple, you may need to complete a second-parent adoption to legally establish your parental rights.
However, not all states permit second-parent adoption procedures, especially because stepparent adoptions are now available for LGBT couples. If you live in a state that does not allow second-parent adoption for unmarried couples, you can still provide a degree of legal security for your child through wills, guardianship agreements and other documents. Speak to your adoption attorney about your options.
Potential Challenges to Inclusive LGBT Adoption Laws
While it is unconstitutional for married same-sex couples to be denied the right to adopt by a state agency, unfortunately, there are several states which have passed laws against gay adoption based on religious freedom. These laws are faith-based, meaning that private adoption professionals can refuse to serve LGBT couples — even those who are married — that wish to adopt through them if it conflicts with their religious beliefs. Five states also have similar same-sex adoption laws for foster care agencies and professionals.
As mentioned before, the marriage clause in state adoption requirements is one of the most effective ways that states continue to discriminate against LGBT couples who are looking to adopt. And, because some states do not allow second-parent adoptions in these cases, these LGBT couples are left unable to grow their family through adoption.
To make sure that you are legally able to adopt a child in a fair manner, it’s encouraged that you contact an adoption attorney early on in your adoption process. This way, you can be informed about your local gay adoption laws and any laws against gay adoption that might apply to your situation. Then, you can choose the process that’s best for you — even if it includes traveling to another state to adopt a child.
Remember, even though there may be attempts to challenge your right to adopt as an LGBT individual, you are protected by federal ruling to grow your family through adoption. With the proper preparation, you can make sure you enter into process that will work best — and fairly — for you and your family.