Parenting Options for Same-Sex Couples in the U.S.
Adoption, Foster Care, Donor Insemination, Surrogating, Custody
by Demian
© April 7, 2011, Demian



•  Introduction

How many gay and lesbian parents are there in the United States?

The American Bar Association, Family Law Section estimates that there are four million gay and lesbian parents raising 8-10 million children.

The American Civil Liberties Union estimates that eight-to-13 million children are being raised by gay or lesbian American parents.

Lambda Legal Defense & Education Fund estimates there are from six-to-10 million lesbian and gay parents who are mothers and fathers to an estimated six-to-14 million children.

The National Adoption Information Clearinghouse estimates there are 1.5-to-5 million lesbian mothers and 1-to-3 million homosexual fathers. As of 1990, 6-14 million children were being raised in homosexual households.

According to the May 2000 edition of “Demography,” published by the Population Association of America, 21.6 percent of lesbian homes and 5.2 percent of male homosexual homes have children present, wrote Dan Black of the Center for Policy Research at Syracuse University in New York.

A November 2001 Kaiser Family Foundation poll revealed that of 405 self-identified gay, lesbian and bisexual adults, 11 percent had children under 18 living with them. Only eight percent were the legal guardian. The poll also found that 49 percent of the gay people who were not parents said they would like to have children someday.

A survey released in October 2002, by marketing company Witeck-Combs Communications, stated that 2 million same-sex couples have children. They forecast that by 2004, the number will be 3.4 million children.

Gary Gates of the Urban Institute in Washington, D.C., estimates that 150,000 same-sex couples are now raising 250,000 kids, based on the 2000 census. Probably an under count.

One reason for the wide-ranging estimates is because it is nearly impossible to gain accurate information regarding parental orientation. Those few surveys that have asked about orientation, require revealing information that could result in loosing children. Given the current hostile attitude toward gay men and lesbians, it is justifiable to be concerned about loosing one’s children based solely on orientation, and not on the best interests of the children, as we have witnessed in so many courts.

Lesbians are roughly as likely to have children as heterosexual women are, according to two random sample surveys. These surveys did not ask if the respondents were the biological, adoptive, or legal parent of the child.

The Yankelovich monitor (in 1998 or 99) found that 67 percent of lesbians and 72 percent of heterosexual women said they were parents; 32 percent of lesbians and 36 percent of heterosexual women had children under 18 in the household.

The Voter News Service exit polls in the 1992 elections found that 31 percent of lesbians and 37 percent of heterosexual women had children under 18 in their households. Gay men were roughly half as likely to report being parents or having kids under 18 in their households as heterosexual men were.

While most of these children are likely the biological children of one of the parents, a growing number are the result of adoption, foster care, surrogacy, and donor insemination.

For those couples considering parenting, if they have never had care of children before, they may wish to have a trial experience, such as participating in after school or mentor programs, to get a clearer picture of what it is like relating to young people.

One such program is Big Brothers Big Sisters of America. Formed in 1904, this group has had a non-discrimination policy covering orientation since 1977. In July 2002, the group made the policy mandatory for 490 chapters, which covers some 5,000 communities across the country.

However, gay men and lesbian parents still face many social and legal obstacles — the foremost being the denial of legal marriage status — a status that goes far to protect the welfare of children.

For decades, it was nearly impossible for openly gay men and lesbians to raise a child. Now it has been widely recognized by all the major American health and child care organization that sexual orientation has no bearing on the ability to be a loving and successful parent.

Health Organizations That Have Issued Supportive
Statements for Gay and Lesbian Parenting
        American Academy of Pediatrics
        American Psychiatric Association
        American Psychological Association
        Child Welfare League of America
        National Association of Social Workers
        North American Council on Adoptable Children

      [Please see our article: Quotes: Parenting Policy Statements]

Still, there are states that block individual gay men and lesbians from adoption or foster care programs. Some states block access to dual adoption, and only New Jersey and Maine allow simultaneous dual adoption. All the others require a two-step process that takes twice the time and expense.

Also, some states — refusing to abide by their own laws — have denied birth certificates, that have both parents names, to same-sex couples who have a dual adoption. Without an accurate birth certificate couples are forced to give detailed explanations to enroll their child in school, sign medical papers, obtain legal documents, and other hurdles.

As more empirical evidence becomes available, which debunk myths about gay parents, and as more lesbians and gay men fight for their children, those obstacles continue to fall.

In spite of the gains in understanding and parental rights, by early 2006, efforts were underway in at least 16 states to introduce constitutional amendments prohibiting gay and lesbian individuals and couples from adopting children, or being foster parents.

•  Adoption

An adoption not only creates a legal tie between a child and his or her parents, reinforcing both emotional security and legal rights, it ensures that both parents are legally obligated to support the children in their minority and sometimes beyond.

In the event of either parent’s death or disability while the child is a minor, the child may theoretically receive substantial Social Security and other benefits based on the deceased or disabled parent’s work record, and may also be the beneficiary of worker’s compensation benefits, of a wrongful death action, and of intestate succession. However, it is not clear how the Federal system would respond to a Social Security claim because the United States does not recognize same-sex couples.

Adoption means that either parent can provide workplace benefits to the child, including medical, dental and life insurance. Adoption means both parents are authorized to make medical and school-related decisions. Adoption also ensures that each child may continue his or her relationship with both parents should the parents separate.

Of the states that allow gay and lesbian couples to adopt children, only New Jersey and Maine allow a same-sex couple to adopt in a one-step process. All other states must do so in a complex and doubly expensive two-step process. One parent first adopts and then the second can petition for joint rights. Colorado, Connecticut, Ohio, and Wisconsin, appellate courts have rejected such adoptions based on narrow constructions of their states’ adoption statutes.

Because same-sex couples are forbidden legal marriage, their children do not have the same legal relationship to their parents as do children of legally married, opposite-sex couples. While a child in a same-sex household automatically has a legal relationship to its biological parent and is eligible for the parent’s health care, insurance and Social Security benefits, the child has no access to the non-biological parent’s benefits unless that parent adopts.

Additionally if the biological mother dies, the surviving parent’s custody could be challenged. It is simply in a child’s best interest to have two legally responsible adults rather than only one.

U.S. State Laws and Rulings on Adoptions
Alabama

• Cari Searcy’s partner, Kim McKeand, gave birth to the baby boy in December 2005 with the aid of a donor. Searcy sought to become the adoptive parent of the child, who bears her last name. Adoption would give Searcy rights to make medical decisions for the child, which is critical as the child has serious health issues. It would also provide a more secure sense of family in their home.

Searcy’s application was denied in probate court on May 3, 2006. The judge ruled against adoption because Alabama recently passed an anti-gay, anti-marriage, state constitutional amendment. While the amendment denies recognizing same-sex marriages, it appears to have been applied to the non-marriage situation of adoption. Their case will go to the Alabama Court of Civil Appeals.

Arkansas

• Arkansas prohibited gay men and lesbians from becoming foster parents in 2000.
      [see Foster Parenting section below]

• A bill that would have banned all adoptions and foster parenting by gay men and lesbians failed to pass out of committee, in January 26, 2001. A second vote, on February 26, 2001, scuttled the anti-parent bill, for the moment.

• In December 2004, a federal judge in Little Rock, Ark., struck down the state’s ban on gay foster parenting and adoptions.

• On June 29, 2006, the Arkansas Supreme Court ruled that the state cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child’s well-being.

• On November 8, 2008, Arkansas voters approved a measure banning unmarried couples from serving as adoptive or foster parents.

• On April 16, 2010, an Arkansas court struck down the ban on any unmarried person who lives with a partner from serving as an adoptive or foster parent. The law was challenged by the American Civil Liberties Union. Arkansas appealed the decision.

• On April 7, 2011, Arkansas Supreme Court’s decision upheld the lower court ruling that a law prohibiting adoption by unmarried couples who live together violates the Arkansas Constitution. Arkansas voters had approved a statutory ban on adoption and foster parenting by unmarried individuals cohabiting with a sexual partner in November 2008.

California

• California’s past Governors George Deukmejian and Pete Wilson ordered that state’s Department of Social Services to oppose all adoptions by unmarried couples. While the state’s negative recommendations on unmarried couples were just one factor to be considered by family law judges in awarding adoptions, it generally required hiring an attorney and finding a sympathetic judge for otherwise qualified, unmarried couples to successfully adopt.

After objections were raised by the American Civil Liberties Union and gay and lesbian groups, State Attorney General Bill Lockyer determined that the policy — one which had not been established through proper administrative procedures — could lead to lawsuits against the state.

On November 15, 1999, Governor Gray Davis issued a letter to all state and county adoption officials in California advising them that the state “will no longer deny applications, withhold consent to an adoption petition, or recommend disapproval of an adoption petition based solely on the applicants’ or petitioners’ marital status.”

The Governor’s spokesperson Michael Bustamante told reporters, “The previous administration took a position on who is fit and not fit to be a parent. This governor has made the determination that the professionals, not the state, are best suited to decide who is fit to be a loving, nurturing parent.”

• An appellate court ruled decided in 2001 that second-parent adoptions were not valid. This type of adoption allows a birth parent to keep a child, rather than give up custody with the adoption.

The retroactive nature of the ruling was later retracted. It otherwise would have annulled as many as 20,000 second-parent adoptions that were formed during the past two decades, denying children the protection of two legal parents.

The ruling was put on hold while the state Supreme Court reviewed the case. And, following this court decision to end second-parent adoptions, the state Legislature passed a law allowing same-sex domestic partners to use the existing stepparent procedure to adopt.

In early August 2003, the California Supreme Court ruled 6-1 that state law allows second-parent adoptions by same-sex couples. A subsequent appeal was rejected on March 1, 2004, locking the ruling for second-parent adoption in place.

• On June 9, 2006, the state Court of Appeal panel in San Francisco set new guidelines for same-sex parental rights; a former same-sex partner can gain parental status over the objections of her ex-partner, the child’s biological mother, if she meets several criteria for legal motherhood. Those criteria include taking part in planning to conceive, bear and raise the child, treating the child as her own, and accepting the rights and duties of parenthood.

Justice Linda Gemello said, in the 3-0 ruling, that state law contains a preference for two parents rather than one, and both the child and the would-be co-parent have constitutional rights to a relationship with each other, She also said a woman who meets the tests for co-parenthood when a child is born does not lose her parental rights, even if her partner moves away with the child immediately afterward.

In other words, Once you have that child together, and you bring that baby home, you are both parents. Where there is clear, documented evidence of intent that they will both be parents, where they both act as parents, those children will be presumed to have two parents.

The birth mother’s attorney, Rena Lindevaldsen of the radical, right-wing Liberty Counsel, claimed that the mother’s preference should prevail. The state Supreme Court rejected that view in August 2005 when it ruled, in three cases, that lesbian or gay partners who plan a family and raise a child together can be considered legal co-parents after a breakup, under the same state laws that cover opposite-sex couples.

The court may have been the first in the nation to grant full parental rights to same-sex partners, regardless of their marital status or biological connection with the children. Those rights include not only custody and visitation for the parents but also health coverage and inheritance for the children. News reports also stated that those rghts included Social Security, however, that coverage is not governed by the state, and, as of this ruling, the federal system does not recognize same-sex couples regarding Social Security.

The couple, identified by the court as Charisma R. and Kristina S., moved in together in August 1998 and registered as domestic partners with the state in January 2002. Kristina gave birth to a daughter, Amalia Lynne, in April 2003 following alternative artificial insemination. She and the child moved out of the home three months later and now live in Texas. Kristina allowed Charisma to see the child only twice since they left. Minter said Charisma has tried to keep in touch and sends the girl presents.

Colorado

• State Rep. Alice Madden (D-Boulder) introduced a bill that would have allowed same-sex couples to adopt children. The bill was killed on February 18, 2003, in the House Committee on State Affairs, Veterans and Military Affairs.

Delaware

• A family court approved a second-parent adoption on October 12, 2001. The court made clear that both fathers, gay men who have lived together for 22 years, are equal parents, which now gives significant protection to the children, who are ages one and six. The second-parent adoption allows adoption of a partner’s children without terminating the first parent’s legal status as a parent. In his decision, Chief Judge Vincent J. Poppiti found that granting this adoption was in the children’s best interest.

• Delaware Family Court Commissioner, John Carrow, ruled on February 5, 2002, that “Carol,” a female non-biological parent, should be considered a legal parent even though she and the son have no biological connection. “Carol” was sued by “Karen Chambers,“ her former partner, for child support. The Commissioner said that both women should be considered mothers to the four-year-old boy they chose to have through in-vitro fertilization.

Florida

• Florida completely bars adoption of children by gay or lesbian parents; a law installed in 1977. Florida Statute 63.042: “No person eligible to adopt under this statute may adopt if that person is a homosexual.” They can be state-appointed foster parents. They can be named permanent guardians. But adoption is not allowed. This law provides no proof that gay people cannot be desirable, stable parents, and appears to be based only on expressing disapproval toward homosexuality.

• The Florida anti-adoption law was challenged in Federal court by Steve Lofton and three other gay men who are foster parents or legal guardians of children. The case lost in August 2002, when U.S. District Judge James Lawrence King ruled the ban was constitutional, even though it unjustly targets one group of citizens. Lofton was not allowed to adopt a 10-year-old boy whom he had raised since the age of two months. Lofton and his partner Roger Croteau since moved to Oregon.
• On February 14, 2002, an appeal was filed in the 11th U.S. Circuit Court of Appeals in Atlanta by the ACLU and other advocacy groups, including the Child Welfare League of America, a coalition of public and private agencies that sets national standards for child care.

• Late in 2004, the U.S. Supreme Court declined to hear an appeal of a ruling upholding Florida’s ban. • In September 2008, Monroe Circuit Court judge David J. Audlin Jr. ruled Florida's 31-year-old gay adoption ban unconstitutional in an order that allows an openly gay, unnamed Key West foster parent to adopt a teenage boy he has raised since 2001. Declaring the adoption to be in the boy’s “best interest,” the judge said the Florida law forbidding gays and lesbians from adopting children is contrary to the state constitution because it singles out a group for punishment.

The foster father was appointed guardian for the boy in 2006, but at a recent hearing, the boy testified that he wanted the foster dad to be his “forever father” - like all the other kids had. When asked why he wanted his guardian to adopt him, the teen replied: “Because I love him.”

• On November 25, 2008, Miami Dade Circuit judge Cindy S. Lederman ruled that Florida’s 31-year-old ban on adoption by gay men and lesbians is unconstitutional. Frank Martin Gill, a gay man, and his partner should be able to adopt the two foster children — two brothers aged four and eight — they have raised for four years. Gill's attorney is Robert Rosenwald of the American Civil Liberties Union of Florida.

Judge Lederman stated in a 53-page ruling:
“Based on evidence presented from experts from all over this country and abroad, it is clear that sexual orientation is not a predictor of a person’s ability to parent. Sexual orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship instability, a lower life expectancy or sexual disorders than race, gender, socioeconomic class or any other demographic characteristic.”

“These children are thriving. These words we don’t often hear within these walls. That’s uncontroverted. … They’re a good family. They’re a family in every way except in the eyes of the law. These children have a right to permanency. … The only real permanency is adoption in the home where they are thriving. … There is no rational basis to preclude homosexuals from adopting.”

Florida Attorney General Bill McCollum announced they would appeal the decision based on the wishes of their client, the Department of Children & Families.

• On September 22, 2010, a state appellate court in Miami unanimously ruled that the Florida law barring adoptions by gay or lesbian people was unconstitutional.

• On October 22, 2010, Florida Attorney General Bill McCollum announced that he will not appeal last month’s ruling by the state appellate court, which struck down the state law barring gay people from adopting children. He stated that the reason was that his client, the Department of Children and Families, has decided not to appeal the decision of the Third District Court of Appeal. And also that it was “not the right case to take to the Supreme Court for its determination. No doubt someday a more suitable case will give the Supreme Court the opportunity to uphold the constitutionality of this law.” Evidently, he had not read any of the rulings which made abundantly clear the fact that the law was a result of prejudice, and had not a shred of science or regard for the best interests of children or the state.

Hawaii courts

• Hawaii courts, in September 2000, granted second-parent adoptions to the female partners of three women. The children were the offspring of the adopters’ partners.

Indiana

• Indiana introduced a bill in January 2001 to prohibit “homosexuals from adopting or being foster parents.”

• In May 15, 2002, the Indiana Court of Appeals three-judge panel ruled that gay parents who live with their partners should not lose visitation rights or custody of their kids just because of their sexual orientation. The unanimous ruling said that a child’s best interest, rather than a partner’s sexual orientation, should be the determining factor in custody cases.

The case was in court because Venessa Downey had to fight her husband, Todd Muffley, to keep custody of their two children. Downey had initially been granted custody, but a Marshall County court had forbidden her to live with her same-sex partner in order to keep custody.

In 1999, the Indiana Courts of Appeals had ruled that sexual orientation alone may not be used as the sole reason for denying parents visitation or custody of their children in divorce cases. In that case, a Tell City mother initially lost custody of her child because she was in a relationship with a woman. The Appeals Court ordered a new trail saying they had to prove the mother was unfit as the custodial parent, rather than merely attacking her orientation.

• On April 13, 2006, a three-member panel of the Indiana Court of Appeals ruled that unmarried couples can jointly adopt children. Two other Court of Appeals rulings have established the precedent in Indiana for co-adoptions by unmarried and same-sex couples. Those cases involved couples in which a child initially was adopted by one partner, rather than through a joint petition.

The April decision involved a Morgan County case in which a judge attempted to overturn the joint adoption of a child in Marion County by a lesbian couple. The women, who had served as foster parents to the girl since she was a newborn, maintained custody during the case. The Morgan County judge argued that he should have had jurisdiction because the child was the subject of a welfare case in his court at the time of the adoption petition.

Though the couple lived in Morgan County, state law allows adoptions to be filed in any county. Appellate Judges Nancy Vaidik and John Baker ruled that the Marion County court had jurisdiction and properly granted the joint petition for adoption. Judge Edward Najam Jr. dissented.

State Senetor Jeff Drozda (R-Westfield) said he will introduce legislation in 2007 to bar same-sex couples from adopting, which would override the court decision. He said he will model his adoption ban on the 1977 Florida law (which was ruled unconstitutional on October 22, 2010). With hundreds of Indiana children waiting for adoption, such a law would deny loving homes to many of these children.

Iowa

• In February 2003, Iowa Sen. Kenneth Veenstra, R-Orange City, brought a bill to the Senate Human Resources Committee, which he chairs, that would prohibit same-sex couples from becoming foster parents or adopting children.

According to the Cedar Rapids Gazette, February 24, 2003, Veenstra said: “The basis for my position is rooted in our Christian principles that I think dictate that the family constitutes a married man and woman in a loving relationship to raise children. Granted, not all of those heterosexual families accomplish that. However, I believe that is the model that is set forth by God in creation, and it is our duty then to use that as the example, as the model, that provides the best chance for children being raised to be psychologically and physically able to be productive citizens.”

He appears to have refused to look at the scientific data which places gay men, lesbians and same-sex couples as perfectly fit to raise children. He, like other right-wing ideologues places his religious affiliations above that of the Constitution, of equal treatment, and civil rights.

Louisiana

On December 23, 2008, a U.S. District Judge ruled against a Louisiana registrar and ordered her to issue a new birth certificate identifying two men as the parents of a boy they adopted in New York State. When Oren Adar and his partner Mickey Smith applied for a new birth certificate for their child, they were told that they could it could not be issued because the state does not recognize adoption by unmarried parents. Lambda Legal made the case (Adar v. Smith.) on their behalf, citing the Full Faith and Credit Clause of the U.S. Constitution, which requires states to respect court judgments, including adoption decrees, that are lawfully obtained in other states.

Maine

• By unanimous decision in April 2004, Maine’s highest court, the Law Court, ruled that a woman, known as C.E.W., was the “de facto parent” along with the ex-partner, D.E.W., who is the child’s biological mother. The couple lived together since 1992. In 1994, D.E.W. had a son. The couple had taken each other’s names and drawn up papers for sharing child-raising responsibility. When the couple broke up in 1999, they agreed to share parenting responsibilities and let the courts determine their son’s primary residence.

In 2000, D.E.W. tried to end C.E.W.’s parental rights and responsibilities, arguing that C.E.W. shouldn’t have any say in raising the boy, since she wasn’t an adoptive or biological parent. The Law Court rejected that argument, and noted that Maine has recognized de facto parental rights “for persons who have played an unusual and significant parent-like role in a child’s life” in several opinions during the last 60 years.

The court stated that de facto parents should be limited to “those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life.”

• Maine’s highest court, the Law Court, unanimously ruled, on August 30, 2007, that a same-sex couple could jointly adopt. The couple, Ann Courtney and Marilyn Kirby, first petitioned for joint adoption in 2002.

The ruling allows qualified foster parents to jointly adopt children who are in Maine’s Department of Health and Human Services custody; children who are born to an unmarried couple may now be adopted by both of their parents, as long as no third legal parent exists; and children adopted by one parent from a private agency may now be jointly adopted by both of their parents.

Michigan

• Michigan chief county judge Archie Brown issued a memo on June 4, 2002, banning judges throughout Washtenaw County from awarding second-parent adoptions to the unmarried partners of biological parents. This appears to prohibit second-parent adoptions by same-sex couples throughout the state, since Ann Arbor’s Washtenaw County was the only one of the state’s 83 counties where such adoptions were granted.

• On December 8, 2006, the Michigan Court of Appeals majority decision upheld second parent adoptions within same-sex relationships. Martha McClellan and Karen Hansen were in an 8-year committed relationship, when, in 1999, Karen became pregnant with a twin son and daughter. The children were legally adopted by Martha as a second parent. In 2003, the couple decided to part ways, however, continued to share parenting responsibilities. In 2006, Karen filed a motion to dissolve the adoption, stripping Martha of her legal rights as a parent, arguing that it was illegal to permit unmarried couples to adopt. According to the majority decision: “Plaintiff argues that, despite the court’s jurisdiction to adjudicate adoptions, the trial court lacked the power to adjudicate these particular adoptions. We disagree.”

Mississippi

• Mississippi banned adoptions by same-sex couples on May 3, 2000. The ACLU stated they would challenge this law.

• After 15 months of litigation, on March 5, 2003, Chancellor William Hale Singletary granted summary judgment to two mothers, and ordered the Mississippi Bureau of Vital Statistics to deliver a birth certificate. The boy was born in Jackson, Mississippi, in 1997. When he was eight days old, Cheri Goldstein and Holly Perdue brought him home to Worcester, Vermont, where the adoption was finalized in April 2000. One month later, the women applied for a revised birth certificate, a standard document issued to adoptive parents by every state. In this case, although the state statute orders the Bureau to fulfill such requests, Mississippi bureaucrats determined that the Legislature could not have intended to sanction a lesbian adoption.

Singletary wrote, “The Legislature has cast the bureau’s duty in mandatory terms, and the bureau has no discretion to deviate from the statute’s terms.”

Regarding the parentage, Singletary cited another section of the code, instructing the State Registrar to “honor orders of courts of other states having appropriate jurisdiction over Mississippi-born persons in matters of adoption.” He also added, Mississippi is “compelled” by the federal Constitution’s Full Faith and Credit Clause to honor Vermont adoptions.

Nebraska

• The Nebraska state Supreme Court rejected, on March 8, 2002, an attempt by two lesbians to co-adopt a child, but did not address the question of whether same-sex couples have the right to adopt children. The biological mother, a Lincoln resident, wants her partner to be able to be a legal, second parent of her 3-year-old son. Luke was born in 1997 and has lived with his mother and her partner since birth.

The court ruled, in an unsigned opinion, that the boy’s mother must relinquish parental rights before a child is eligible for adoption. The only exception would be for a stepparent adoption.

In a strongly worded dissent, Judge John Gerrard said the “dispositive issue in this case is whether Nebraska law permits a second-parent adoption when the adoptive parent is not married to the minor child’s biological parent. I believe that it does.”

• In a different case, the Nebraska Supreme Court reversed a lower court ruling regarding adoption status on June 28, 2002. The earlier ruling invalidated a lesbian mother’s Pennsylvania adoption in Nebraska. The case is to go back to trial court.

Joan Bridgens adopted a child in 1996, and her partner, Serenna Russell, co-adopted the same child in 1997. After the couple broke up, Bridgens challenged Russell’s parental status, arguing that unsettled Pennsylvania law should not be honored in Nebraska. The case asks whether a court judgment issued in one state must be honored in another. With very few exceptions, the Full Faith and Credit Clause of the U.S. Constitution insists that the answer is “yes.” But if a court lacks “subject matter jurisdiction” over the issue it decides, then other states are not bound to its opinion.

Since the legal status of second parent adoptions in Pennsylvania was under review by that state’s Supreme Court at the time, Bridgens convinced the trial judge that the procedure was irregular, and the Pennsylvania court lacked the authority to grant her former partner’s adoption petition. Although the high court reversed that decision, they did so on a technicality, ruling that the burden of proof should have rested on Bridgens, who brought little or no evidence to support her argument. On remand, the justices ordered the trial court to hear evidence on both sides, and to take into account the eventual high court ruling out of Pennsylvania.

But two of the seven justices issued a concurrent opinion: whether or not second parent adoptions survive the scrutiny of the Pennsylvania Supreme Court, the court that issued the original decree had the jurisdiction to do so at the time. As such, the adoption is a settled matter of law, or “res judicata,” that cannot be challenged and that must be given full faith and credit.

New Hampshire

• New Hampshire had barred adoption and foster parenting for 12 years, until May 3, 1999 (effect July 2. 1999). Upon signing the repeal law, Gov. Jeanne Shaheen said, “New Hampshire will now be able to judge foster and adoptive families based on their fitness, without making prejudicial assumptions.”

New Jersey

• New Jersey became the first state to allow both adults to simultaneously adopt, at the outset, obtaining the same legal rights and responsibilities for the child. This is an important distinction that helps protect the child if something happens to render the adoptive parent incapable of custody. Also, it indicates that the state acknowledges gay and lesbian couples as a family unit.

New Jersey’s allowance was a result of its Division of Youth and Family Services settling with the American Civil Liberties Union on December 18, 1997. A suit was instigated by Michael Galluccio, 35, and Jon Holden, 34, a 15-year couple living in Maywood. The couple had been caring for two-year-old foster child, Adam, since he was three months old. When the couple attempted to adopt him jointly, they were informed that Galluccio would have to go through the adoption process first, and then Holden, a process taking considerable time and money as it does in all the other states.

The suit was based on the state violating their rights to equal protection under state and federal law. The settlement only affects New Jersey’s state adoption agencies, not its private ones.

North Dakota

• The North Dakota Senate passed a bill in February 2003 which stipulates that no “child-placing agencies,” would be denied a state license for refusing to be involved in a placement to which they object on moral or religious grounds. This measure could potentially severely limit or end adoptions by lesbian and gay citizens in that state. It has yet to pass in the House.

Ohio

• The Ohio Supreme Court ruled on August 28, 2002 that a lesbian mother could not be considered a parent to her partner’s children under state law. The couple, Shelly Zachritz and Teri Bonfield, have been together 14 years and have six children. The court opinion revolved around the relationship between Zachritz and five of the children — two boys adopted under Bonfield’s name, and three other children subsequently born to Bonfield.

Although both mothers have shared equally in raising the kids, a lower court rejected their petition for allocated parental rights and responsibilities, a status that would let two willing parents assume joint legal care of their children. Although the law does not define “parent,” the lower court determined that shared parenting status was reserved for biological or adoptive parents only. In their seven-page ruling, the Ohio majority said that the women could not qualify for shared parenting, but could possibly win joint custody of the children, sending the matter back to lower court for a determination.

Firstly, the justices took the opportunity to expound on the subject of second-parent adoptions, an issue that was not brought before the court and not briefed. The opinion called second-parent adoptions “an option in other states,” that “is not available in Ohio,” effectively putting the high court’s stamp of disapproval on a major question of same-sex family law that had yet to be presented to the Ohio justices.

Second, by relegating the women to joint custody at best, the court left the status of same-sex parents unclear. Remaining unanswered are such concerns as what would happen to the joint custody status if a couple separates.

A motion was filed asking the court to delete the second-parent adoption language. On December 13, 2002, the court issued an order granting the motion and revised its opinion. This made the ruling officially neutral on the issue.

      [Cite: In re Bonfield, 96 Ohio St.3d 218, 2002-Ohio-4182.
      Opinion: www.sconet.state.oh.us/rod/documents/0/2002/2002-Ohio-4182.doc]

• In early January 2009, the Ohio Supreme Court let stand an appeals court ruling affirming the enforceability of a court-approved child custody agreement in a case involving lesbian mothers. "The Court has expressly shut down arguments that Ohio's anti-gay amendment impacts parenting and child custody relationships, rights, and responsibilities,"said Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago. "The Court correctly declined an invitation to treat gay and lesbian Ohio parents differently from other families, and to deprive the children of these families of the protections and support other children receive." Lambda Legal represents Therese Leach in her fight to uphold a court-approved joint custody agreement signed by both her and her former partner, Denise Fairchild, in 2001. After their son was born in 1996, both women parented him. In order to ensure that Therese had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in the 2001 In re Bonfield case in which Lambda Legal participated. The Supreme Court decision comes after Fairchild argued, at a trial court, and the Ohio Court of Appeals for the Tenth District, that Ohio's antigay constitutional amendment limiting marriage to a man and a woman invalidated the court approved custody agreement she originally sought with Leach. All three courts brushed aside Fairchild's arguments, ruling that court-approved custody agreements cannot be ignored or unilaterally undone by one of the parents. In July 2008, Fairchild asked the Ohio Supreme Court to hear her case, and Lambda Legal urged the Court to refuse. This order from the high court is the final word on the matter. The case is In re J.D.F.
Oklahoma

• Rep. Bill Graves (R-District 84, Oklahoma City) introduced, in February 2003, two hate bills: HB 1308 would prohibit homosexuals from adopting children, and HB 1505 would establish a reputable presumption that it is not in the best interest of a child for custody to be granted to a parent who is lesbian, gay, bisexual, or who engages in homosexual activity.

• Seattle partners Ed Swaya and Gregory Hampel jointly adopted Vivian in March 2002. The Oklahoma Health Department refused to issue a birth certificate with the names of both men as parents, as is required by law. It claimed, in July 2003, that it was unable to “establish maternity” for Swaya, and only wrote Hampel on the birth certificate. After more than two years of correspondence and costly legal fees, the Department finally responded properly. I took a demand letter from Lambda Legal Defense and Education Fund to finally have both men listed on the birth certificate.

• On May 4, 2004, Oklahoma Governor Brad Henry signed a law that forbids same-sex couples residing out-of-state from adopting children in Oklahoma.

• The Adoption Invalidation Law, hastily passed at the end of the 2004 Oklahoma legislative session states that Oklahoma “shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.” The law was so extreme it had the potential to make children adopted by same-sex couples in other states legal orphans when the families are in Oklahoma.

Oklahoma officials argued in court papers that their state had the right to set its own policy on adoptions by same-sex couples. They argued that the purpose of the law was “to halt the erosion of the mainstream definition of the family unit and provide the possibility for the optimal environment for the child’s development in a home with a male parent and a female parent.”

On May 19, 2006, U. S. District Judge Robin Cauthron issued a 31-page ruling highly critical of the state legislature for passing the law. The judge found that the law did “little if anything to promote the traditional family unit” and attempted “to penalize the plaintiff children for the acts of their parents.”

Judge Cauthron wrote:

“The very fact that the adoptions have occurred is evidence that a court of law has found the adoptions to be in the best interests of the children. To now attempt to strip a child of one of his or her parents seems far removed from the statute’s purpose and therefore from [the state’s] asserted important government objective.”

Lambda Legal brought the case on behalf of two same-sex couples and their families who adopted children while living in other states and later moved to Oklahoma or want to visit the state with their family. It argued that the law was unconstitutional based on the United States Constitution’s guarantees of equal protection, due process and right to travel, as well as the mandates of the Full Faith and Credit Clause.

The Court agreed, finding that the statute violated the United States Constitution by singling out a specific group for discrimination.

Pennsylvania

• A Pennsylvania appeals court ruled 6-3 against allowing gay men and lesbians to adopt their partners’ children on November 8, 2000. The majority judges cited the legislature’s rejection of same-sex marriages.

Such adoptions have already been allowed in more than one hundred cases in at least 14 of Pennsylvania’s 67 counties. Dissenting Judge Justin Johnson called the majority “wooden,” “illogical” and “misguided” in its interpretation of the state’s Adoption Act, which does allow gay and lesbian couples to adopt children together, and further criticized the majority for neglecting the best interests of the children in the two cases before the court. The cases were combined for purposes of the appeals argument.

In one case, an Erie man wished to co-adopt the children his same-sex partner of 18 years had adopted alone. The children had been raised together from within days of their birth. The appeals court found that the would-be parent had no standing to seek the adoption unless the adoptive parent gave up his rights, despite the fact there would have been no legal problem had they been seeking to adopt a child together.

In the other case, a Lancaster woman wished to co-adopt the twin boys her same-sex partner of 17 years had borne by alternative insemination. The would-be adoptive parent had hoped to confer on the boys her Social Security, health and life insurance, and other benefits.

The court refused to use the discretion afforded by law to act in the best interest of the child by denying children of gay and lesbian parents the opportunity to be adopted by their parents’ partners. The court denied them the psychological benefits and financial safeguards that accrue to children in a two-parent family. While the court insisted that it is up to the state legislature to legalize such adoptions, the court took the step of outlawing certain gay adoptions, a move the legislature has never taken.

Dissenting Judge Debra Todd noted that, “This decision will not change the everyday reality of the children’s lives, their living arrangements or the parties’ parenting practices. It will, however, deny the children the benefits of parental recognition, stability and future security.”

More on this case:

• The Pennsylvania Supreme Court ruled in T.B. v. L.R.M., on December 28, 2001, that same-sex partners have standing to seek custody of their former partners’ biological children, so long as they can prove “in loco parentis” status. In loco parentis refers to an individual who acts as a child’s lawful parent by assuming the responsibilities of a parental relationship without a legal kinship.

• The Pennsylvania Supreme Court ruled unanimously on August 20, 2002, that the state’s adoption law unequivocally allows a same-sex partner to adopt the other partner’s children. This decision allows children in gay and lesbian families to qualify for health insurance, inheritances and other benefits that they did not get before.

“There is no language in the Adoption Act precluding two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child who had no legal parents,” Chief Justice Stephen Zappala wrote in the ruling. “It is therefore absurd to prohibit their adoptions merely because their children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition.”

The ruling stems from two cases filed by a female couple and a male couple. In the former, one of two women from Lancaster County, together since 1983, sought to adopt twin boys born to one of the women through in vitro fertilization.

In the latter, one of two men from Erie County, partners since 1982, sought to adopt a boy and a girl who had already been adopted by one of the partners.

• A Pennsylvania appellate court, on December 17, 2002, may be the first U.S. appellate court to order a non-biological, non-adoptive, lesbian parent to pay child support to her former partner. Lisa Kove gave birth to five children through anonymous insemination during her nearly 12-year relationship with Helen Naumoff. The first born was a son, and she later gave birth to quadruplets.

After the women’s relationship ended in 1997, Naumoff stayed in Pennsylvania, while Kove moved to California. In 1998, Naumoff sought, and won, joint legal custody and partial physical custody of the children, specifically during the summer and on school breaks. At that time, Naumoff successfully argued that she had de facto parental standing.

Kove subsequently sued for child support. At that time, Naumoff reversed herself, telling the court that she was more in the position of a stepparent, who generally (but not always) avoids financial obligations to his or her spouse’s children in the event of divorce.

The trial court ruled that Naumoff could not simultaneously claim parenthood for the purposes of custody, and deny parenthood for the purposes of child support. In this latest ruling, a three-judge panel upheld the opinion of the lower court.

This ruling treats the children of same-sex families with the same concern as children from opposite-sex families. It is the five children who will benefit the most, specifically with financial support from both parents.

• A Pennsylvania appellate Superior Court ruled on September 27, 2005, in favor of a non-biological mother, Patricia Jones, having primary custody for twin 8-year-old boys. The three-judge panel not only acknowledged her parental rights, which had already been established earlier in this long litigation, it upheld trial court Judge Susan Devlin Scott in switching primary custody because Jones had proven to be the more responsible than the biological mother, Ellen Jones Boring.

Patricia Jones and Ellen Jones Boring began their relationship in 1988. Desiring children, Boring finally had the twins in 1996.

When the relationship dissolved in 2001, Boring consistently tried to keep Jones away from the boys and distance the twins from their other mother. She also unsuccessfully tried to change their names, and move them out of state. It was reported that Boring had a drinking problem, an unstable history, and an erratic score on various psychological tests.

On the other hand, Jones had impressed school authorities, court-appointed evaluators, and others with her dedication to her sons.

The judgement was based primarily on the best interests of the children. Jones was represented by Lambda Legal. If Boring appeals, the legal fight could go to the state Supreme Court.

South Carolina

• Law passed in 2003 that blocks same-sex couples from jointly adopting children.

Texas

• In Re: S.M.B. (Case No. 97-20051-158), attorney Amy Ganci, of Cowles & Thompson (Dallas), won the right for two women to have joint custody in a jury trial in District Court. The non-biological parent then had the legal right to care for the child. A motion for Joint Conservator was signed on March 23, 1998 by Judge Phillip Vick (now retired).

• State Rep. Sid Miller (R-Stephenville), filed a bill in 2003 that bans adoption of a child by more than one person of the same sex.

Utah

• While in desperate need of care givers, Utah completely bars adoption and foster care for all “unmarried cohabitants” in a law enacted on March 31, 2000 (effective May 1, 2000). The statute doesn’t expressly prohibit adoption by single people, nor does it ban same-sex couples from adopting from private agencies.

Virginia

• While Virginia has no law preventing adoption by gay men and lesbians, they have been known to knowingly drag their feet on approvals of these adoptions. On December 5, 2001, Episcopal priest Linda Kaufman presented her case in an Arlington court in order to force the Virginia Department of Social Services to follow its own policies, and allow her to adopt a foster child from the District. She has already adopted one child. She and her four-year partner, Liane Rozzell, went through a home evaluation from Lutheran Family Services, and received a favorable report. Despite repeated requests for an adoption from Lutheran Family Services and Kaufman, Virginia has failed to act for two years.

• Three same-sex couples have appealed a February 2004 decision that denied them an accurate birth certificate for their adopted children. The last step in an adoption, having both parents on the birth certificate — be they same-or opposite-sex parents — establishes legal parentage and saves time, money, and anguish.



U.S. State Policies Toward Dual (Second-Parent)
Adoptions by Same-Sex Coupled Parents
Legal
Granted by lower courts and appear to be available in at least some counties
Simultaneous Adoption Available Ban Second-Parent Adoptions Illegal for any Type of Adoption
Alabama
Alaska
California
Connecticut **
Delaware*
District of Columbia *
Florida ******
Georgia
Hawaii *
Illinois *
Indiana
Iowa
Louisiana
Maryland
Massachusetts *
Michigan ***
Minnesota
Nevada
New Mexico
New York *
Oregon
Pennsylvania *
Rhode Island
Texas
Vermont **
Washington
Maine *****
New Jersey * §
Arkansas §§
Colorado
Mississippi
South Carolina
Utah
Wisconsin
Mississippi
Nebraska ****
Oklahoma
Utah
* Second parent adoptions have been approved by family, appellate or state supreme courts.
** Second parent adoptions are available by statute.
*** First banned in 2002, only by a Michigan chief county judge memo. Only one Michigan county previously allowed second-parent adoptions. In 2006, a Court of Appeals decision upheld second parent adoptions within same-sex relationships.
**** Nebraska adoption law states that “unmarried persons may not adopt.”
***** Maine’s highest court unanimously ruled, on August 30, 2007, that a couple could jointly adopt.
****** Florida circuit court judges have ruled for adoption with a gay parent in individual cases. One 2008 case has a statewide impact and has been appealed. On September 22, 2010, the Florida state ban was ruled unconstitutional. That same day, the Florida state attorney general announced he would not appeal the ruling.
§ Registering as domestic partners in New Jersey allows a couple to both be listed on a birth certificate.
      [See our article: New Jersey: Domestic Partnership Act]
§§ In 2010, an Arkansas court ruled that the ban against unmarried persons who live with a partner from serving as an adoptive or foster parent was unconstitutional. The ruling was challenged and upheld by the Arkansas Supreme Court in 2011.


Countries that Allow Couples to Adopt
        Belgium
        Great Britain
        Denmark
        Iceland
        Ireland
        Israel
        The Netherlands
        Scotland
        South Africa
        Spain
        Sweden
        Tasmania
        Wales
        Western Australia

Belgium

• On April 20, 2006, Belgium became the fifth member of the European Union to allow same-sex couples equal rights in adoption. Senators in the upper house backed the proposal by a 34-33 vote with two abstentions.

Belgium has legal marriage for same-sex couples.
      [Please see: Belgium Offers Legal Marriage]

Great Britain

• Dual adoptions by same-sex couples were offered in 2004.

Iceland

• Since 2006, Icelandic same-sex couples became eligible to a range of laws including public access to IVF insemination treatment, surrogacy and both full joint adoption and adopting your own partner’s biological children.

Iceland has legal marriage for same-sex couples.
      [Please see: Iceland Offers Legal Marriage

Ireland

Laws were instituted in January 2006, which allow all unmarried couples — no matter the orientation — the option of adoption. Earlier laws allowed one member of a non-married couple to apply to adopt, while the second member applied for a residency order.

Israel

• The Israeli Supreme Court ruled 7-2 on January 10, 2005, that a female couple, together for 15 years, would be allowed to adopt each other’s children. The women, Tal and Avital Yaros-Hak, have three children.

Western Australia

• In early September 2005, a male couple was approved by the Department for Community Development to adopt a child, the first under 2002 liberalized laws. The historic laws allow same-sex couples to adopt children if they can convince authorities they would make suitable parents, the same criteria for heterosexual couples. The partners are among 118 couples approved to adopt a child, most of whom will wait an average of two years.



Canadian Adoption
Canada has legal marriage for same-sex couples.
      [Please see: Canada Offers Legal Marriage]
So the following information applied up until June 28, 2005, when all marriage rights became available to same-sex couples.
Only Permitted to Adopt Partner’s Child, Not a Third Party Child Stepparent and Third-party Adoption Ambiguous Adoption Laws Denied Adoption
*Alberta
Nova Scotia
Ontario
Quebec
Yukon New Brunswick
Nunavut
Prince Edward Island
*In 1999, Alberta replaced the word “spouse” with “stepparent” in the Child Welfare Act, thereby allowing adoption by same-sex couples.

On January 3, 2007, province’s highest court ruled that an Ontario boy can legally have two mothers and a father. The same-sex partner of the child’s biological mother had gone to court seeking to also be declared a mother of the boy. In 2003, Superior Court Justice David Aston dismissed a similar application by the same party saying he didn’t have the jurisdiction to rule.

•  Foster Parenting

In some cities, such as New York, San Francisco, Los Angeles and Trenton, N.J., foster home placement agencies have actively sought to place gay teenagers with lesbian and gay foster parents.

Some states, however, have made it difficult for lesbians or gay men to be foster parents. In North Dakota, for instance, only married couples are allowed to become foster parents; applicants in Massachusetts must state their sexual orientation.

Right-wing ideologues, who place their particular religion over the civil rights of gay, lesbian citizens, and refuse to offer any sort of equal treatment, are a continuing threat to the health and safety of same-sex families.

Australian same-sex couples are being urged to foster disadvantaged children in a bid to address the dire shortage of foster families. Welfare agencies have approved dozens of gay men and lesbians as foster parents.

U.S. State Laws and Rulings on Foster Parenting
Arkansas

• In 1998, Arkansas passed a regulation requiring that foster parents be married and heterosexual. Exemptions might be available for unmarried heterosexual couples, but not for same-sex couples. The state was sued by American Civil Liberties Union on behalf of a lesbian, a gay couple, and a straight man married for 31 years who was disqualified as a foster parent because he has a gay son who sometimes lives at his home.

The state’s Child Welfare Agency Review Board, adopted the ban in 1999.

On December 29, 2004, Circuit Court Judge Timothy Fox rejected the state’s claims that gay and lesbian adults are unsuitable parents. The Arkansas court overturned the law banning gay people and anyone living with a gay adult from becoming foster parents.

Circuit Court Judge Timothy Fox:

“This case has presented us all with an excellent opportunity to replace ignorance with knowledge and to make an informed decision based on information as opposed to assumption.”

Fox further noted that being raised by gay or lesbian parents does not increase likelihood of psychological problems, nor does it endanger the health, welfare and safety of a foster child.

Rita Sklar, executive director of the ACLU of Arkansas:

“Throughout this case, the state has relied on ugly stereotypes to deny children in the Arkansas foster care system the chance of having the widest possible pool of foster families available to them. We’re very pleased that the court saw through these arguments and has recognized that gay and lesbian people can provide homes just as loving and stable as anyone else’s.”

On December 19, 2005, an array of national child advocacy organizations and the American Civil Liberties Union filed a brief asking the Arkansas Supreme Court to uphold the earlier court decision striking down a state regulation that banned gay people and anyone living in a household with a gay adult from being foster parents in the state.

Rita Sklar, Executive Director of the ACLU of Arkansas:

“This anti-gay foster parenting ban goes against the recommendation of every major children’s health and welfare organization in the country. These experts understand all too well how this policy hurts the many children in Arkansas in need of safe, stable homes.”
In addition to the ACLU brief, several other groups have submitted friend-of-the-court briefs in the case, including the Child Welfare League of America, the National Association of Social Workers and its Arkansas chapter, and the American Psychological Association.

Rob Woronoff, a program manager with the Child Welfare League of America:

“One thing that the proponents of this policy can’t seem to explain is, ‘How do they expect the state to find homes for the children in Arkansas who need foster care when you diminish the already small pool of potential parents?.’ Policy makers should heed the advice of the child welfare professionals who know that the best way to meet the needs of foster children is to assess all prospective parents on a case-by-case basis.”
The four friend-of-the-court briefs included:
Child Welfare League of America and the Evan B. Donaldson Adoption Institute - explains how all major child welfare organizations oppose categorical bans like the one in Arkansas because they deprive children of qualified care givers.

American Psychological Association, the Arkansas Psychological Association, and the National Association of Social Workers and its Arkansas chapter - details more than two decades of social science research showing that gay people are equally capable parents who raise healthy children, and that these facts are well-established and accepted in the scientific community.

• An assortment of Arkansas law professors and religious leaders - explains that basing government discrimination against a group of people on nothing but moral disapproval is not a legitimate basis for the government to disadvantage a group, and that different religious groups have diverse moral views about lesbian and gay people.

Children of Lesbians and Gays Everywhere; Lambda Legal; Arkansas Stonewall Democrats; Parents, Friends, and Families of Lesbians and Gays; the National Gay and Lesbian Task Force; and Human Rights Campaign - explains how the U.S. Supreme Court thinks courts should handle cases involving government acts that penalize people for exercising the right to form intimate relationships with same-sex partners.

On June 29, 2006, the Arkansas Supreme Court ruled that the state cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child’s well-being.

In a 7-0 vote, the justices agreed with the lower court that the state’s Child Welfare Agency Review Board had improperly tried to regulate public morality, and had violated the separation of powers between the executive branch and Arkansas’ legislature, the General Assembly.

In approving the policy, the board had said children should be in traditional two-parent households headed by a man and a woman because the children would be more likely to thrive. The justices agreed saying the ban was “an attempt to legislate for the General Assembly with respect to public morality.”

Associate Justice Donald L. Corbin wrote in the opinion:

“There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual.”
In addition, the court said the testimony of a member of the child welfare board demonstrated that “the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children, but rather based upon the board’s views of morality and its bias against homosexuals.” The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.

Julie Munsell, a spokeswoman for the Arkansas Health and Human Services Department, which oversees the child welfare board, said that the ban had not been applied since the lower court ruling in 2004 and that the plaintiffs had not sought foster-parent status since then.

• On November 8, 2008, Arkansas voters approved a measure banning unmarried couples from serving as adoptive or foster parents. • On April 16, 2010, an Arkansas court struck down the ban on any unmarried person who lives with a partner from serving as an adoptive or foster parent. The law was challenged by the American Civil Liberties Union. Arkansas appealed the decision. • On April 7, 2011, Arkansas Supreme Court’s decision upheld the lower court ruling that a law prohibiting adoption by unmarried couples who live together violates the Arkansas Constitution. Arkansas voters had approved a statutory ban on adoption and foster parenting by unmarried individuals cohabiting with a sexual partner in November 2008.

Iowa

• In February 2003, Iowa Sen. Kenneth Veenstra, R-Orange City, brought a bill to the Senate Human Resources Committee, which he chairs, that would prohibit same-sex couples from becoming foster parents or adopting children.

According to the Cedar Rapids Gazette, February 24, 2003, Veenstra said: “The basis for my position is rooted in our Christian principles that I think dictate that the family constitutes a married man and woman in a loving relationship to raise children. Granted, not all of those heterosexual families accomplish that. However, I believe that is the model that is set forth by God in creation, and it is our duty then to use that as the example, as the model, that provides the best chance for children being raised to be psychologically and physically able to be productive citizens.”

He appears to have refused to look at the scientific data which places gay men, lesbians and same-sex couples as perfectly fit to raise children.

Missouri

• Lisa Johnston and Dawn Roginski, with help from the American Civil Liberties Union, sued the state of Missouri in May 2005. They were deemed to have “exceptional qualifications” by the Department of Social Services, in part because both of the women have worked with special needs children. However, citing an unwritten policy similar to the military “don’t ask, don’t tell,” the state denied Johnston’s application to become a foster parent.

Lisa has a bachelor’s in human development and family, with a special emphasis on child development. She works for KCMC Child Development Corp. as an educational consultant on developmentally appropriate curriculum. She previously worked at the Children’s Place, whose services include training foster parents.

Dawn has a master’s in counseling, and in divinity, as well as a bachelors in psychology. She is a therapist and a chaplain at Marillac, an Overland Park treatment center for young people with emotional and behavioral disorders.

The two women passed a home site visit and completed seven of nine training sessions before being told they could not become foster parents, in part because “Missouri case law, as it stands, does not support legal custody of a child with a lesbian couple,” state officials said.

In an administrative hearing on the case, state officials said they were not required to ask about sexual orientation when reviewing applications, but would act on the information if it became known. Additional they stated that children in such a home could suffer social stigma; the children’s biological parents might disapprove; and the two women are “not of reputable character” because Missouri has a same-sex “sodomy” law.

All state “sodomy” laws were rendered void by the U.S. Supreme Court ruling in June 2003 regarding a similar Texas law unconstitutional.

New Hampshire

• New Hampshire had barred adoption and foster parenting for 12 years, until May 3, 1999 (effect July 2. 1999). Upon signing the repeal law, Gov. Jeanne Shaheen said, “New Hampshire will now be able to judge foster and adoptive families based on their fitness, without making prejudicial assumptions.”

Texas

• Texas legislator Robert Talton (R-Pasadena) proposed two anti-gay bills in 2003.

One would disqualify those who identify themselves as homosexual or bisexual from being foster parents. The bill calls for a “reasonable investigation” to determine whether the applicants are homosexual or bisexual. Children who already have foster parents who identify themselves as gay or bi would be removed from their care. Currently, the state does not track orientation of foster parents.

The second Talton bill would prevent the placement of a child in a foster home with anyone who is unmarried. About one-in-five foster parents in Texas are currently unmarried, said a spokesperson for the Texas Department of Protective and Regulatory Services. In Brazoria County, the Children’s Protective Services has 204 children in need of foster homes, and only 40 approved homes.

• Rep. Robert Talton (R-Pasadena) has proposed legislation (House Bill 194), referred to the Juvenile Justice and Family Issues Committee in February 2003, that would prohibit gay men, lesbians and bisexuals from providing foster care.

Another bill (House Bill 916), that would limit the ability of gay couples to adopt, is authored by Rep. Sid Miller (R-Stephenville) and has also been referred to the Juvenile Justice and Family Issues Committee. This bill includes removing children in homes with lesbian, gay, or bisexual foster parents.

Rep. Miller has named his bill the “Defense of Families Act.” Just like all the other bills dubbed a “defense of,” they defend no one, deny civil rights, and prohibit participation as a full citizen.

Miller has stated in press releases, “I believe strongly in the preservation of the traditional family, and I do not believe homosexuals should be allowed to continue adopting children in Texas. By allowing two people of the same sex to adopt children, the state of Texas has been sending a signal that it condones and approves of homosexual activity. I believe homosexuality is immoral, and the state of Texas should not endorse their alternative lifestyle by allowing homosexuals to adopt children.”

Such legislation is misguided because:

• There is no one form of “traditional” family.
• Providing equality is not an “endorsement.”
• Placing one kind of personal religion above that of all others, turning it into law, is a gross breach of the fundamental American principle of the separation of church and state.
Utah

• In January 1999, Utah prohibited unmarried opposite and same-sex couples, from adopting children in the state foster care system. This in spite of the fact that Utah’s Division of Child and Family Services faced a 1998 class-action lawsuit for its failure to find permanent placements for its wards. Previously, Utah’s prohibition did not affect private adoption agencies, however, a law enacted on March 31, 2000 (effective May 1, 2000) bars adoption and foster care for all “unmarried cohabitants.”



•  Donor Insemination

An option for lesbian parenting is that of insemination by a known or unknown sperm donor. Whether it is called “donor insemination”, “alternative insemination,” or the inaccurate “artificial insemination,” potential mothers need to be extremely careful about the methodology, as well as which state they live in.

To minimize the risk that a donor will assert himself as the father, many lesbians choose anonymous donors through sperm banks. Some states also offer specific legal protection to unmarried women. In Oregon, for example, a court has upheld a state law specifying that a man who donates his sperm to a woman other than his wife loses all parental rights.

Every state has different laws applying to donors, so it is prudent to be informed of them as they can radically effect the process and rights of the parents.

The following chart was built from information available on the Lesbian Moms Web site. Because their data was last updated February 1998, we cannot vouch for the timeliness of the data, but it does portray the complexity and variety of donor insemination laws between the American states.

Laws Pertaining to Donor Insemination
Must be supervised by Licensed M.D. AL AK CA CO CT GA ID IL MN MT NJ NM NY NC OH OK OR TN TX VA WA WI WY
With consent of husband & wife AL AK AR CA CO CT FL ID IL MN MT NJ NM NY NC OH OK OR TN TX VA WA WI WY
With written consent AL AK CA CO CT GA ID IL MN MT NJ NM NY NC OH OK OR TN TX VA WA WI WY
With written consent acknowledged by M.D. AL CO GA ID IL MN MT NJ NM NY NC OK OR WY
With written consent signed in court NC OK WY
With filed consent AL CA CO CT ID KS MN NJ NM OK OR TX WA
With filed consent kept confidential AL CA CO CT GA ID IL KS MN NJ NM NY NC OK OR TX WA WI
With filed consent opened only under court order CO NJ NM OH OK WA WY
Child is considered legitimate if husband consents AL AK AR CA CO CT FL GA ID IL KS LA MD MI MN MT NV NJ NM NY NC OH OK OR TN TX VA WA WI
Must notify inseminating M.D. of birth if not the Ob/Gyn ID
Donor has no legal rights or duties with respect to the child AL CO CT ID IL MN MT NJ NM NY OH OR TX WA WI
Sets minimum donor health standards ID NJ NY OH
M.D. or hospital may refuse donor MD
Statute is retroactive NJ NY
Penalty for non compliance GA [1-to-5 years prison for anyone other than licensed M.D. who performs the insemination]
Donor treated as biological father if he and woman consent in writing NM OH
Require AIDS screening of Donor sperm ID OH
Records kept by M.D. OH

One insemination issue to consider is the fact that only one parent is the biological mother, which could have ramifications for the emotional balance in the relationship itself. Also, should there be an acrimonious break up of the relationship, and visitation at stake, courts have been widely known to deny the second, non-biological parent access, even though she may have been the primary caretaker.

U.S. State Laws and Rulings on Donor Insemination
New Jersey

• New Jersey Family Court Judge James A. Farber ruled on March 11, 2003 that a female couple can both be listed as parents on the birth certificate of the baby they are expecting in May. One woman is carrying the child, and her partner provided the egg.

The women have been together for seven years and live in northern New Jersey. They conceived through in vitro fertilization. The unidentified women will share a financial obligation to the child, and if one parent dies, the other will have custody.

While the ruling was a support for reproductive rights, it is likely to have a low legal impact, as few lesbian couples opt to conceive this way. Typically, a woman delivering a child is listed as the mother on a birth certificate, and the partner, usually not genetically related to the child, must then adopt the child to gain parental rights. This court process can take months.


•  Surrogating

Another parenting option for gay men is that of contracting with a surrogate birth mother, which could involve the use of sperm from one of the male partners.

As with women and donor issues, the men need to consider the fact that only one parent is the biological father, which could have ramifications for the emotional balance in the relationship itself. Also, should there be an acrimonious break up of the relationship, and visitation at stake, courts have been widely known to deny the second, non-biological parent access, even though he may have been the primary caretaker.

•  Custody, Guardianship

Many same-sex couples find their children through conception within a previous, opposite-sex relationship. Issues that frequently occur are battles over custody, time spent with the child, and how to raise the children. Sometimes, judges have denied any contact with a child, based only on the parent being lesbian or gay. Often, judges have required that if a child is to visit with a lesbian or gay parent, that parent may not allow any same-sex partner in the presence of the child.

Alabama

• Alabama Court of Civil Appeals ruled in a child custody case on June 1, 2001, that a lesbian mother would provide a better home than a (presumably) heterosexual father who abused the children. The court decided, 4-1, to reverse a decision by a Jefferson County judge who had allowed the father to retain custody of the three children.

The appeals court said the trial court judge erred in allowing the father to retain custody because of a history of calling the mother vulgar names in front of the children, interfering with the children’s communications with the mother, hitting the children, and denying them permission to attend summer school when they had failing grades. Judge Sharon Yates wrote that “the father’s verbal, emotional, and physical abuse can be considered family violence, and that abuse constitutes a change of circumstances.”

Colorado

• The Colorado Court of Appeals on August 30, 2001, ruled that parenting time in custody cases may not be restricted because of sexual orientation. This is an important ruling because it contradicts the frequent unequal treatment lesbians and gay men have received in the courts.

The three-judge appellate court, said that Colorado state law allows restrictions on parenting time only if a child’s physical, mental or emotional health is endangered. A court is also barred from intervening in a parent’s decision on religious training, the court said.

This court ruling overturned a decision by Douglas County District Judge Thomas J. Curry, who barred a bisexual father from taking his 9-year-old daughter to a gay-friendly church and from having overnight guests. Curry had written that the father shouldn’t take the now 10-year-old girl to the Metropolitan Community Church in Denver because she might see “hugging, showing of affection one to the other … women with women, men with men.”

Curry’s ban on overnight guests included anyone, regardless of gender, sexual orientation or whether the father was romantically involved with the guest. The judge didn’t order any such conditions on the mother, who attends a conservative Christian church.

Delaware

• On March 8, 2006, a three-judge panel of Delaware Supreme Court allowed “Sheila Smith” to retain joint custody of three children she helped raise with her former partner, “Erica Smith,” the triplets’ biological mother. They let stand the ruling by a Delaware Family Court judge had ruled that Sheila Smith was a “de facto parent” and therefore entitled to joint custody. Both women were assigned pseudonyms by the court, as is common in state Family Court decisions that are made public.

While the case potentially could have established a precedent, the justices decided it in such a way that it did not set a new legal standard for same-sex couples in the state. In an opinion written by Justice Randy J. Holland, the court found that Erica Smith had undermined her legal argument that Sheila Smith had no legal claim on the children because she sought and accepted child support payments from Sheila Smith. The justices found that Erica Smith could not accept the benefits of the Family Court ruling when it came to child support payments while at the same time rejecting it when it came to custody. As a result, Holland wrote, the court did not address the issue of whether or not Sheila Smith was entitled to status as a de facto parent of the triplets.

Maine

• The Maine Supreme Judicial Court ruled, on November 4, 2003, that same-sex partners may be appointed full legal guardians of children. It said that when considering whether any two people should be made co-guardians, courts should look only at what is in the best interest of the child. The decision, granting co-guardianship to two lesbians raising a child, applies to other same-sex couples in the state trying to establish legal ties with their partners’ biological or adopted children.

The case involved two women in a committed relationship, who got sperm from an anonymous donor in a California sperm bank. One of the women conceived and last year gave birth to a boy. The women then approached the Kennebec County Probate Court to legalize their agreement to share in the boy’s parenting and to be named his co-guardians.

The probate judge, James Mitchell, turned to the Maine Supreme Judicial Court for guidance on whether or not granting co-guardianship was a legal option, and whether or not the sperm donor had to be notified. Supreme Judicial Court Justice Susan Calkins wrote that it is “not in doubt” that co-guardianship is legal, and said the donor need not be notified.

Maryland / Virginia

• Karl Ulf Hedberg, who was forced to choose between custody of his son and living with his male partner, Blaise Delahoussaye, won court permission to reunite the household. On March 27, 2006, Montgomery County Circuit Judge William J. Rowan III ended the four-year-old cohabitation ban set in place by an Alexandria, Virginia, court.

Karl and Annica separated in 1996 while living in Virginia. She moved to Florida in 2000.

In 2002, a Virginia ruling awarded custody to the father, contingent upon his partner moving out. After that ruling, Karl and Blaise sold their house and moved to separate apartments in Maryland, which is considered friendlier to same-sex couples. In 2004, Karl failed in an attempt to get a Montgomery County judge to open the custody issue based on the child’s new circumstances.

Virginia judges may condition child custody on barring a live-in lover, and appear to have done so based on their animus toward same-sex relationships, and not on any real harm to the child. The mother’s case against Karl and Blaise sharing a household had been legally represented by the radical, right-wing Liberty Counsel law firm.

Montgomery County Circuit Judge William J. Rowan III’s 2006 ruling came after Karl presented evidence to show that the Virginia order had harmed his son, turning a two-parent home into a one-parent home, with attendant hardships. The mother, Annica Madelaine Detthow, did not attend the hearing, had no legal representative, and presented no evidence.

•  Birth Certificate Parents Named

New Jersey

While New Jersey does not recognize a legal marriage, on May 20, 2005, a female couple won a court order to have both their names listed as parents on the birth certificate of their 3-week-old daughter. Kimberly Robinson gave birth to Vivian on April 30, 2005. The court agreed that Kimberly’s wife, Jeanne LoCicero, should be listed on the official paperwork as the second parent.

The two women were married in Canada last summer. They also are registered as domestic partners in New Jersey.

The American Civil Liberties Union represented the couple. The court’s decision was not a formal recognition of their marriage. However, it added weight to the evidence of their committed relationship. The court order, likely a precedent for New Jersey, was based on a state statute that protects a husband whose wife brings a child into the world through alternative insemination. The law guarantees that the husband is considered the father, regardless of his lack of biological tie. The court ruled that the principle of the statute applies equally to same-sex couples, despite the fact that the law uses the words “husband” and “wife.”

•  Legal Marriage

The following governments offer legal marriage to same-sex couples. This status automatically allows parents custody of their children, as well as an orderly process in the event of divorce. Many of these locations also allow same-sex married couples to adopt and foster care as a couple.
    Please see our articles:

Governments that offer Full Legal Marriage
Nations

        Netherlands (2001)
        Belgium (2003)
        Canada (2005)
        Spain (2005)
        South Africa (2005)
        Norway (2009)
        Sweden (2009)
        Mexico City (Mexico) (2009)
        Iceland (2010)
        Argentina (2010)
        Portugal (2010)
        France (2013)
        New Zealand (2013)
US States and Territories

        Massachusetts (2004)
        California offered then banned; case pending (2008/?)
        Connecticut (2008)
        Iowa (2009)
        Vermont (2009)
        New Hampshire (2009)
        District of Columbia (2009)
        New York (2011)
        Maine (2012)
        Washington (2012)
        Maryland (2013)
        Rhode Island (2013)
        Delaware (2013)
        Minnesota (2013)
        Illinois (2013)
        Utah (2013)
Native American Tribes

        Coquille Tribe in OR (2008)
        Suquamish Tribe in WA (2011)
        Little Traverse Bay Bands of Odawa Indians in MI (2013)
•  Final Words of Advice

Until legal marriage is available to all American same-sex couples — as well as recognized by states that do not offer it — no matter what form of becoming parents, partners need to create guardianship papers, wills, powers of attorney, and a relationship agreement. The latter document would spell out, for instance, how child care duties are to be shared, and what the relationship to the child would be in the event of a break up.
      [Please see our article Legal Precautions to Protect Your Relationship.]

Even with legal marriage now available in Massachusetts, many other states have declared they will not recognize it, which means a partner’s next-of-kinship to a child could be destroyed.


© 2011, Demian
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