Who Is a Legal Parent?

Understand your legal rights as a lesbian or gay parent.

There are all kinds of parents in this world -- loving, compassionate, youthful, open-minded, distant, stern -- the adjectives go on and on. But when we describe parents -- ours or any others we know -- the last term we'd use is "legal." Yet for gay and lesbian couples wanting to raise a child, the question of legal parentage is of utmost importance.

A legal parent is a person who has the right to be with a child and make decisions about the child's health, education and well-being. A legal parent is also a person who is financially obligated to support that child. When a married couple has or adopts a child, both partners are automatically considered legal parents. As a result, even if they split up and the court awards custody to one parent and orders the other to pay child support, they both remain legal parents unless a court terminates either the mom's or the dad's parental rights. Indeed, this rarely happens, unless a parent abandons a child or consents to the adoption of the child by the other parent's new spouse. A child has clearly spelled out rights with his legal parent(s), even after they divorce.

If the parent does not consent to adoption by the other parent's new spouse, also known as the stepparent, then the stepparent is not a legal parent. As much as the stepparent may be involved in raising and supporting the child, if the couple splits up, the stepparent won't be entitled to custody or obligated to pay child support. In a few states, a stepparent may be granted visitation with the child if a close psychological bond has developed between the stepparent and the child and it would be in the child's best interest to continue the contact.

So what does this have to do with you? A lot. The great gay and lesbian baby boom of the 1980s and 1990s has not, in most states, resolved the predicament of how to apply heterosexist parentage laws to the realities of same-sex parenting. Until recently, in most families, only one partner was recognized as the legal parent. And why was this? Only one of you can be a biological parent. Most state laws were written in a way to make adoption and foster parenting available only to married couples or single people. And so if a "single" person (such as the partner of the biological parent) sought to adopt, the rights of the biological parent (the other partner in the same-sex couple) would first have to be terminated -- hardly a result a lesbian or gay couple wanted.

But then gay and lesbian lawyers got smart. They began reading the text of state adoption statutes. Most laws, they realized, authorized adoptions by married couples and single people, but didn't expressly exclude unmarried couples. Similarly, they read the stepparent adoption statutes. While all these statutes expressly authorized adoptions by the new spouse of a legal parent if the other legal parent was dead, had his parental rights terminated, abandoned the child or consented to the adoption, most statutes did not actually forbid an unmarried partner from becoming a stepparent while the other parent retained her parental rights.

And now the good news: As of October 2001, joint adoptions by lesbian and gay couples or second-parent (the equivalent of stepparent) adoptions by the legal parent's partner have been granted in many states. Alaska was the first state to grant a joint adoption -- it did so in 1985. Since then, joint adoptions and second-parent adoptions have been granted in several states, including Alabama, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Texas, Vermont and Washington. Some have been allowed by statute, some by the appellate court and some by local judges acting in the absence of any higher court ruling.

Of course, some courts and legislatures are attempting to block joint adoptions by lesbian and gay couples -- and in some states, what is allowed one year or in one particular county -- may not be okay in a different time or place. Because it is essential that you know your local law before you decide to raise a child together, this is one area where we strongly recommend that you seek legal advice first. Search out gay and lesbian parenting groups in your state, and others will surely point the way towards the information you need. If you don't know where to start, try the Queer Resources Directory (http://www.qrd.org), which includes an extensive number of parenting sites.

California's history is quite instructive. Joint adoptions became almost routine in recent years, especially in San Francisco, Los Angeles, Alameda and other liberal counties. In 1995, however, then Governor Pete Wilson overturned a Department of Social Services policy that allowed adoptions by qualified unmarried couples, whether gay or straight. Now, lesbian and gay couples are automatically rejected by state social workers in their bids to adopt children, and they have to argue their cases in the local court. This makes the process more difficult and more expensive, but the good news is that in most cases, they'll win.

Joint adoption procedures vary widely from state to state. In Minnesota, for example, the court typically terminates the parental rights of the biological parent and then grants a joint adoption. In Washington, on the other hand, joint adoptions are handled like stepparent adoptions, which are simplified and don't require a social worker.

From a legal perspective, the process is similar to a conventional adoption, except that the birth parents' rights are not terminated. The adoptive parent is evaluated by an independent social worker, the judge must approve the adoption and the adoptive parent becomes a permanent, legal parent, even if she and her partner break up. Most of these cases are done as quietly as possible, with little press and hoopla.

Lawyers who represent gay and lesbian parents have developed excellent relationships with county social workers and judges who grant adoptions. Most cases end at the trial court level -- this means no one appeals the case -- it's very rare that anyone opposes an adoption. The judge usually doesn't have to make a decision about placing a child in a gay household -- the child will be raised there no matter what the judge decides. And judges love to grant adoptions -- an adoption gives a judge a chance to put a family together, rather than to watch one fall apart.

Because of the legal complexities and political controversies, if you want to petition a court for a joint or second-parent adoption -- whether or not your state is listed above -- you will probably need the help of a lawyer. If you know people who have been granted a joint or second-parent adoption, call them and find out who they used. If you don't know anyone to call, contact the National Center for Lesbian Rights (http://www.nclrights.org), Lambda Legal Defense and Education Fund (http://www.lambdalegal.org) or Gay and Lesbian Advocates and Defenders (http://www.glad.org) -- the three national lesbian and gay legal organizations.

And if your lawyer needs assistance in preparing materials for court, let him or her know that the National Center for Lesbian Rights has available a trial brief (the argument your lawyer must submit to the court) about why a joint and second-parent adoption is not about gay rights, but is simply in your child's best interest.

To read and printout a copy of the Form please link below.

Questionnaire: Questions for Birth Parents to Consider Before Making an Adoption Plan

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 2002 Nolo

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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