Legal Issues for Gay and Lesbian Adoption

Here are some of the legal challenges facing gay and lesbian parents today

The law related to same-sex couples has changed dramatically in recent years, but adoption laws have not fully caught up.  Here are some of the biggest legal challenges facing gay and lesbian parents today.

Parental presumptions

Same-sex couples still face a patchwork of parentage laws across the country.  As one lawyer put it in the New York Times, “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another.”  This is because parentage laws across the country are built on the assumption that each child has one mother and one father.  These laws work well to protect children of heterosexual parents, but can be very complicated for gay and lesbian adoption.  

For example, if a child is born to an unmarried heterosexual couple, the woman who gave birth is deemed the mother and the biological father is the other parent.  That mother and father will each have strong legal rights, even if they wind up having little involvement in the child’s life.  With only minor variations, this is universally true in every state.

On the other hand, in a child born to a gay or lesbian couple can be treated very differently in different states.  A lesbian married to a woman that gave birth will be deemed a legal parent automatically in some states.  In other states, the non-birth mother in a lesbian couple might not have any parental rights.  In that case, the spouse may need to adopt the child in order to become a step parent.  Otherwise, she may have no legal ties to the child whatsoever.

Non-parent rights

The law gives very few rights to nonparents.  For example, the Supreme Court has said that grandparents have no Constitutional rights to visit their grandchildren.  Many states have stepped in to give visitation rights to some family members, but the legal parents of a child are still given basically complete control over how to rear their children.  

Parenting agreements can prevent some conflicts

Many gay and lesbian parents have found parenting agreements to be very helpful in dealing with adoption-related issues.  A parenting agreement may specify, for example, that both parents would want shared custody of the children they are raising if something happened.  Others may use it as sort of a child-related “prenup,” or prenuptial agreement that makes clear that in the event of a breakup one parent will retain primary custody of a child living in their shared home.  These contracts are not honored in all states and all cases, but they can be an important option for many people.

Discrimination in child activities

Some LGBTQ parents will experience discrimination, and it may be completely legal.  For example, some gendered youth groups may not want an opposite-sex parent around.  A gay dad may not be welcome at a mother-daughter spa day.  The Boy Scouts of America are the best known offenders in this area, as they only recently began to open their ranks to gay members.  Groups are slowly becoming more inclusive, but in many cases discrimination based on sexual orientation is not banned by existing anti-discrimination laws.

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