Gay and Lesbian Adoption and Parenting
The legal rights of same-sex parents, from adoption to coparenting to
second parent rights.
There are special issues
for lesbian and gay singles and couples who want to adopt or who are
raising children. This article addresses adoption for LGBT singles and
couples, as well as parenting and the rights of second parents.
Lesbians and gay men
bring children into their lives in a number of ways. In lesbian couples,
frequently, one partner gives birth to a child and the other partner --
the second parent -- becomes a legal parent through second parent or
stepparent adoption, if that’s permitted in the state where they live.
Gay men can do virtually the same thing by using a surrogate to carry a
child born from one partner's sperm and a donor egg.
In states that
allow it, same-sex couples sometimes adopt children jointly, so that
both partners are legal parents from the beginning. Lesbian and gay
singles and couples in these states can adopt children through agencies
or independent adoptions, and even through international adoptions
(though international adoption will be more difficult now that the
United States has adopted the Hague Convention).
For information on the different types of adoption, read Nolo's article
For many same-sex
couples, joint or second parent adoption isn't an option. A few states,
such as Florida, bar same-sex partners from adopting. For a
state-by-state overview of second parent adoption laws and cases, visit
the Lambda Legal Defense and Education Fund's website at
Your Local Laws
Because it is essential that you know your local law
before you decide to raise a child together, we strongly
recommend that you seek legal advice when you are
considering parenting. Search out gay and lesbian
parenting groups in your state. If you don't know where
to start, try the Queer Resources Directory (),
which includes many parenting sites. The following
organizations can also provide you with information: The
National Center for Lesbian Rights (),
Lambda Legal Defense and Education Fund (),
and Gay and Lesbian Advocates and Defenders ().
Rights and Responsibilities
A legal parent is a
person who has the right to live with a child (full or part time) and to
make decisions about the child's health, education, and well-being. A
legal parent is also responsible for financially supporting the child.
When a married couple has or jointly adopts a child, both partners are
automatically considered legal parents. As a result, even if they split
up, they both remain legal parents.
Some same-sex couples
are fortunate enough to live in a state where they can jointly adopt a
child -- or where one partner can adopt the biological child of the
other through a second parent, stepparent, or domestic partner adoption.
These procedures ensure that both partners are considered legal parents
of their child.
Now that same-sex
marriage is legal in Massachusetts and California, same-sex parents
should be considered legal parents of the child from the time of the
child’s birth, like heterosexual married couples. The same is
theoretically true in Connecticut, Vermont, New Hampshire, New
Jersey, Oregon, and Washington, D.C., which grant legal parent status to
partners of birth parents when a child is born during a domestic
partnership or civil union.
However, attorneys in
California and Massachusetts (and in other states that recognize
same-sex relationships) continue to recommend that same-sex partners
complete stepparent adoptions on behalf of the nonbiological parent. The
adoption serves as extra protection if the parties travel to a state
that doesn’t recognize same-sex relationships, and also means that the
federal government should recognize the parent-child relationship for
purposes of Social Security and other federal benefits.
For same-sex couples in
other states, both parents are not automatically considered legal
parents. The second parent is not a legal parent and has few, if any,
legal rights with regard to the child, unless a second parent or
stepparent adoption has been completed.
If you and your
partner are in this situation, it's smart to know the laws that affect
you -- and to make a parenting agreement setting out your understanding
about sharing rights and responsibilities for your child. Doing so now
may prevent considerable legal and emotional grief down the road.
(To learn about second parent or stepparent adoptions, read Nolo's
Parent's Fate After a Break-Up
The status of a second
parent (the nonlegal, nonbiological parent) is most likely to become an
issue if a same-sex couple splits up. When heterosexual parents separate
and can't agree on custody terms, courts will step in to resolve the
troubles, but gay and lesbian couples don't usually have these built-in
In fact, many courts say
that a second parent has no rights regarding the child of a partner,
even if the second parent has spent years helping with homework,
patching up scrapes, and giving and receiving unconditional love. At
worst, the second parent may be treated by the courts as a stranger,
giving the legal parent an absolute right to deny all future contact
between the ex and the child.
A handful of courts take
the opposite view, awarding visitation to a nonlegal parent after
finding the second parent to be such a critical part of the child's life
that it would be wrong not to grant at least some continuing contact
with the child. These courts may call the second parent a "de facto
parent" or "psychological parents," meaning that the parent has lived
with the child and fulfilled every responsibility and aspect of
nurturing and discipline such that the only tie not satisfied is the
legal or biological one.
In addition to looking
at the reality of the parent-child relationship in these situations,
courts may consider the following factors in the relationship between
the child and the nonlegal parent:
- the length of the
relationship between the adults, and whether they and the child
- the intentions of
both partners to parent together and what steps, if any, were taken
to ensure that joint parenting would take place, and
- any co-parenting
agreements or other documents regarding the child that had both
partners listed as parents, such as birth announcements.
committed to joint parenting but can't adopt (or choose not to), the
first thing you should do is write up a
The agreement should specify that, although only one of you is the legal
parent, you both consider yourselves parents of your child, with all the
rights and responsibilities that come with parenting. Include language
that clearly states your intentions to continue co-parenting even if you
end your relationship.
It's also wise to go
further and cover financial issues, as well as the legal parent's
intention to provide the second parent with generous visitation, access
to school and social events, and so forth, in the case of a break-up.
Guidelines for Co-Parents
Same-sex parents might find it helpful to read
Protecting Families: Standards for Child Custody in
Same-Sex Relationships, by Mary Bonauto, an attorney
who argued and won an important Massachusetts parenting
case. This guide offers ten proposals for lessening
conflict in co-parenting intentions. You can download
the guide from the GLAD (Gay & Lesbian Advocates &
Defenders) website at
Look for it in their list of publications.
If the unfortunate does
occur and you split up, honor your agreement. You've both agreed to
co-parent without the legal advantages and protections of adoption, so
it's up to both of you to put your differences aside and make your
child's needs a priority. If you can't resolve the issues amicably, you
must take your chances with your state's court system. The outcome of
such a battle is anything but certain.
To learn more
about same-sex partners' legal rights, see
by Attorneys Denis Clifford, Frederick Hertz, & Emily Doskow (Nolo).
Reprinted with permission from the publisher,
Nolo, Copyright 2008,