Adoption

Many people want to form families with children and there is a ready pool of children who lack permanent homes. Through the process of adoption, a person may adopt a child (a) who is in the legal custody of a state agency, or (b) who has been placed with a private child welfare agency, or (c) who is secured as the result of a private agreement. (NOTE: There is no adoption by private agreement in Massachusetts and Rhode Island).

The children in state custody and eligible for adoption are often living in foster homes until they are adopted. In many states, there is a shortage of adoptive parents, although a new federal law has spurred states to move children into permanent homes more quickly.

Do I Have a Right to Adopt a Child?

First and foremost, adoption is about securing the best interests of children and not about the rights of parents. No one has the “right” to be an adoptive parent. Although each state’s adoption process differs, the common thread among all is that adoption proceeding asks whether a child’s adoption by a particular person or family is in that child’s best interests. These decisions are made by judges, often with the input of parents and professionals, and almost always after a home study by either a state agency or agency approved of by the state.

Can I Adopt From a Foreign Country?

Generally yes, but it depends on the country. For more information about specific countries, contact an agency that specializes in foreign adoptions. Also, see GLAD's publication Marriage Tips & Traps for a warning regarding adoption and marital status.

Does the Federal Government Play a Role in International Adoptions?

Not particularly. In 2000, the United States government passed a law implementing the International Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (which had been done at The Hague in May 1993). Most of the new legislation is geared toward ensuring basic protections for children and standardizing the adoption process (including standards for adoption agencies and agencies performing home studies) among countries. Although some members of Congress had wanted to forbid gay people from adopting, those amendments were defeated.

What Are the Legal Consequences of Adoption?

When a person or family adopts a child, the adopting family is substituted legally for the child’s birth family. The child is then the child of the adopting parents, and the birth certificate is amended to reflect that fact. The new parents have the obligation to support and care for the child, and the child is protected in terms of inheritance or social security disability if the parent dies.

The legal relationship between the birth parents and the child ends upon adoption, and the adoptive family becomes the child’s legal family. In some states, courts may allow an “open adoption” in which the adoptive family provides some information to or access to the child to the birth family.[1]

What is Single Parent Adoption?

A single parent adoption is where a person adopts a child as an individual, even if there are other adults living in the home of the adoptive parent. It is not at all uncommon for gay and lesbian people as individuals to adopt children. This now happens in every New England state.[2]

Are there anti-gay laws concerning adoption?

Yes. Although gay people can adopt as individuals in every New England state, and as couples in several states, it was not always that way. In the wake of mid-1980’s AIDS hysteria, New Hampshire passed a ban on adoption and foster care by gay people. Although upheld by the courts,[3] the legislature repealed the laws in 1998 by large margins, citing the ability of gay people to be good parents.[4] Even Massachusetts regulations forbade gay people from being foster parents for a time, but the Commonwealth changed its policies in 1991.[5]

In the last few years, Utah and Mississippi have joined Florida in banning adoption by gay people, and Arkansas has banned foster care placements with gay people.[6] More states may follow.

The idea behind these anti-gay, anti-adoption laws is that children must have a mother and a father, and that gay people do not make good parents. These specious claims are easily refuted. See ACLU, “In the Child’s Best Interests: Defending Fair and Sensible Adoption Policies,” (April 1998)(available from GLAD).[7]

How To Get Started

Where Can I Turn If I am Interested in Adopting a Child?

If you are interested in adopting a child, the following are the state agencies that could help you get started. Some private agencies are also listed for informational purposes only.

Do not be surprised if you are asked to go through a screening process or take a course to evaluate your suitability as an adoptive parent before the legal adoption process even begins!

Second Parent Adoptions

What is Second Parent Adoption or Joint Adoption?

These adoptions refer to a legal process in which unmarried couples (gay, lesbian or heterosexual) jointly adopt a child who is already a child of one of the petitioners or who has been placed with the petitioners jointly be an agency or by the State. After the adoption, the child has two legal parents.

State laws generally permit married couples to adopt children. In some cases, one of the petitioning parents is a stepparent, i.e., the new spouse of the child’s parent. Maine for example requires both the parent and stepparent to petition to adopt the child. At the end of the process, the child has two legal parents -- the birth parent and adoptive stepparent. Other states like Vermont require only the stepparent to petition. The legal rights of the birth parent who is not joining the petition are saved by a provision of the law which avoids a “cut-off” of rights when the adopting parent is a step parent. Thus, the result is the same as when both the parent and stepparent adopt jointly -- the child has two legal parents at the end of the process.

How Did Second Parent Adoption Come to Be and Where Can I Get One?

What do stepparents have to do with same-gender couples petitioning to adopt? Plenty. in the mid-1980’s, the Lesbian Rights Project of San Francisco (now the National Center for Lesbian Rights) pioneered a strategy whereby lesbian couples used the stepparent adoption process. These cases involved lesbians adopting the biological child of one of the women, or a child who had previously been adopted by one of the women. Just as in a step parent adoption, the non-legal parent would petition to be a parent, and when that petition was granted, the child had two legal parents: the birth mother or initial adoptive mother, and the second adopting mother.

After working its way through the West in states like Oregon, California, Alaska and Washington, the idea came East. Vermont became the first Eastern state to approve of second parent adoption. Even more importantly, it did so through a decision of its state supreme court, marking the first time that a state appellate court approved of second parent adoption. In a frankly worded opinion, the Court stated:

This is not a matter which arises in a vacuum. Social fragmentation and the myriad configurations of modern families have presented us with new problems and complexities that cannot be solved by idealizing the past. [O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families.... But it is the courts that are required to define, declare and protect the rights of children raised in these families ... [8]

Just a few months after the Vermont Supreme Court’s historic ruling, the Massachusetts Supreme Judicial Court approved of joint adoption petitions by unmarried petitioners, including lesbian parents. In the two cases decided, Massachusetts approved of a procedure whereby both parents (birth/adoptive parent and co-parent) petitioned to adopt the child together without the legal parent losing any rights. Again, at the end of the process, the child has two legal parents.[9]

Nationally, second parent adoptions have been approved by higher court decisions in five states (including Massachusetts and Vermont)[10], lower court judges in approximately another fifteen states (including Rhode Island)[11], and through legislative or executive action in two states (including Connecticut).[12]

All is not rosy however. These remain difficult cases. Appellate courts have also rejected claims for second parent adoption based on literal interpretations of state adoption law. In effect, this means that if the second parent petitioned for adoption, the court could only grant the adoption by terminating the rights of the birth or initially adopting parent.[13]

Why Should A Court Allow Second Parent Adoption?

Although the legal issues about the precise meaning and scope of adoption laws can be difficult, from a public policy standpoint, second parent adoption is a no-brainer. It is a classic example of a win-win situation. By providing a child with two legal parents, there are two people who are both morally and legally obligated to support and care for the child. As the Massachusetts SJC explained,

[A]doption will permit Tammy to preserve her unique filial ties to Helen [her other mother] in the event that Helen and Susan [her birth mother] separate, or Susan predeceases Helen. . . . [W]hen the functional parents of children born in circumstances similar to Tammy separate or one dies, the children often remain in legal limbo for years while their future is disputed in the courts....In some cases, children have been denied the affection of a functional parent who has been with them since birth, even when it is apparent that this outcome is contrary to the children’s best interests. Adoption serves to establish legal rights and responsibilities so that, in the event that problems may arise in the future, issues of custody and visitation may be promptly resolved by reference to the best interests of the child within the recognized framework of the law.[14]

Consistent with the common sense approach, the American Bar Association resolved in 1999 to “support the enactment of laws and implementation of public policy that provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interests of the child.”[15]

Recent Second Parent Adoption Law in New England

Connecticut

A new law that became effective October 1, 2000 creates a process for second parent adoption, whereby an existing parent (biological or adoptive) may agree to the adoption of the child by another person “who shares parental responsibility for the child.”[16] This law effectively overturns an earlier ruling[17] that had denied the joint petition of a lesbian couple to adopt the biological child of one of women based on previously existing adoption statutes.

Maine

There is not yet any defining case law regarding second parent adoption in Maine.

Massachusetts

In 1993, the Supreme Judicial Court of Massachusetts affirmed the granting of the joint petition of a lesbian couple to adopt the biological child of one of the women.[18] The court held that the law[19] allows adoption by two unmarried cohabitants, including adoption by the child’s biological parent, regardless of sexual orientation. The court further held that the parent’s rights are not terminated by the adoption. In a companion case,[20] the court held that the Probate and Family Court has jurisdiction to consider a joint petition of a lesbian couple to adopt the biological child of one of the women.

New Hampshire

Current adoption statutes provide that only a married couple or single individual (including a foster parent, unmarried mother or father, or unmarried adult) may adopt. In 1987, the New Hampshire Supreme Court rejected the adoption joint petition of an unmarried heterosexual couple.[21] The court read the absence of any procedure for custody determinations in the adoption provisions to indicate that the legislature did not intend to grant adoptions under these circumstances.

Rhode Island

The question of joint or second parent adoption by an unmarried couple is not addressed expressly by the Rhode Island statutes on adoption or by any authoritative ruling by the state supreme court. Several adoptions have been granted at the Family Court level. Feel free to contact GLAD for more information.

Vermont

The Vermont Supreme Court has granted the joint petition of a lesbian couple to adopt the biological children of one of the women, holding that “[W]hen the family unit is comprised of the natural mother and her partner, and the adoption is in the best interests of the children, terminating the natural mother’s rights is unreasonable and unnecessary.”[22] This ruling firmly establishes that unmarried couples may petition for second parent adoption.

Additional Legal Literature

End Notes

[1] The adoption laws for each New England state can be found as follows: Conn. Gen. Stat. sec. 45a; Maine Revised Statutes Annotated Title 18-A, sec. 9 et seq.; Massachusetts General Laws chapter 210; New Hampshire Revised Statutes Annotated ch. 170-B; Rhode Island General Laws 15-7-2 et seq.; and Vermont Statutes Annotated Title 15A, sec. 1 et seq.

[2] An early case clarifying that an openly gay man living with his partner was eligible to adopt a disabled child as a “single person” under Ohio’s adoption law is In re Adoption of Charles B. The lower court judge ruled that an openly gay man was not qualified to adopt, but this ruling was reversed when the Ohio Supreme Court ruled that “nonmarital sexual conduct,” including sexual conduct between two men, must be shown to have a direct adverse impact on the child before it can be used as a basis for denying an adoption petition. 552 N.E.2d 884 (Oh. 1990). A court in Washington state ruled that a woman could not block the adoption of the child she had placed for adoption just because a gay male couple were to be the adoptive parents. In re G.C.B., 870 P.2d 1037 (Wash. App. 1994).

[3] Opinion of the Justices, 530 A.2d 21 (N.H. 1987)(finding state’s interest in ensuring that children in its custody have proper role model justified ban on gay parenting); Stuart v. State, 597 A.2d 1076 (N.H. 1991)(upholding regulation restricting foster parenting to people who would certify that no gay people would visit their home).

[4] Ralph Jimenez, “N.H. Near Repeal of Antigay Provision,” Boston Globe, April 23, 1999; Sarah Koenig, “Senate Okays Bill Letting Gays Adopt,” Concord Monitor, April 23, 1999; Kevin Landrigan, “Bill Passed Easing Adoption for Gays,” Nashua Telegraph, March 19, 1999; Pamela M. Walsh, “Gays Gain Parental Rights: House Votes to Repeal 12-Year Bans,” Concord Monitor, March 19, 1999.

[5] GLAD and the ACLU of Massachusetts challenged 1985 regulations of the Executive Office of Human Services which effectively prohibited the Commonwealth from licensing gay people as foster parents. See Babets v. Governor of Massachusetts, Suffolk Super. Ct., Civ. Act. No. 81083 (Complaint). For more detailed information, contact GLAD, or see Wendell Ricketts, “Lesbians and Gay Men as Foster Parents” 67-87 (National Child Welfare Resource Center). The only reported decision from the case involved a ruling that documents sought by the plaintiffs were not protected by executive privilege. See id., 526 N.E.2d 1261 (Mass. 1988). The policy was repealed in 1991.

Although New Hampshire imitated and expanded the Massachusetts ban, the Maine legislature rejected a proposed restriction on gay people acting as foster parents in the mid-80’s.

[6] Lawsuits challenging the Florida law have been unsuccessful in the past. See e.g., Cox v. Florida Dept. of Health and Rehabilitative Services, 656 So.2d 902, 903 (Fla. 1995)(upholding ruling that law did not violate privacy or due process rights, and limiting any equal protection claim to rational basis review). Advocates are trying again. The Utah measure is also now being challenged in the courts.

[7] More detailed information is available from GLAD upon request.

[8] In re B.L.V.B. & E.L.V.B., 628 A.2d. 1271, 1276 (Vt. 1993). This quote borrows from a lower court decision in New York, In the Matter of the Adoption of Evan, 583 N.Y.S.2d 997, 1002 (N.Y.Sup. Ct. 1992). One of the Vermont mom’s later wrote about her experience in the case. See Deborah Lashman, “Second Parent Adoption: A Personal Perspective,” 2 Duke J. Gender, Law & Pol’y. 227 (1995).

[9] Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); Adoption of Susan, 619 N.E.2d 323 (Mass. 1993).

[10] In addition to Massachusetts and Vermont, there are favorable appellate rulings from New York, New Jersey, Illinois and the District of Columbia. See In re Dana, 660 N.E.2d 397 (N.Y. 1995); In re Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995); In re Petition of K.M. and D.M., 653 N.E.2d 888 (Ill. App. Ct. 1995); In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995). Cases are presently working their way through the appellate courts in Pennsylvania as well. See e.g. In Re Adoption of R.B.F. and R.C.F.: Appeal of B.A.F. and C.H.F., No. 00067MDA99 (Penn. Super. Ct., Midd. Dist).

Although not a court, the Uniform Adoption Act states that a “de facto step-parent” or “second parent” has standing to adopt a minor step-child with the consent of the child’s custodial parent and citing with approval the New York and Vermont decisions permitting second parent adoptions. Unif. Adopt. Act sec. 4-102.

[11] See discussion in Report of the American Bar Association, Resolution 109B, at 10-11 & nn. 20, 24 (Feb. 8, 1999).

[12] In the 2000 legislative session, the Connecticut legislature overruled In re Adoption of Baby Z. and created a mechanism whereby same-sex parents can jointly adopt. An Act Concerning the Best Interest of Children in Adoption Matters, 2000 Conn. Legis. Serv. P.A. 00-228 (S.H.B. 5830)(West) amending Conn. Gen. Stat. sec. 45a-724 (1993). For commentary on the decision, see Jennifer E. Crouteau, Comment, “In re Baby Z: Manipulating the Law to Allow Adoption of A Child by the Same Sex Partner of the Biological Parent,” 11 Quinnipiac Prob. L. J. 99 (1997). For more information on the new adoption process, contact GLAD.

By executive action settling a class action lawsuit brought by couples who wanted to adopt from the state jointly in one petition rather than through a two-step process, the State of New Jersey agreed that unmarried couples could petition jointly to adopt from the state. See Holden v. New Jersey Dept. of Human Services, Div. of Youth and Family Services, No. C-230-97 (N.J. Super. Ct. Ch. Div. Dec. 17, 1997)(consent judgment ordering that the DYFS repeal and no longer enforce DYFS policy stating that “in the case of unmarried couple cohabiting, only one person can legally adopt a child). This is widely mis-reported as being the first state to allow joint adoption; that distinction actually belongs to Massachusetts.

[13] In re Angel Lace M., 516 N.W.2d 678 (Wis. 1994)(adoption statute does not permit a lesbian co-parent to adopt her partner’s biological child without terminating the biological mother’s parental rights); In re Adoption of Baby Z., 724 A.2d 1035 (Conn. 1999)(over the objections of a powerful dissent, the court concluded the legislature meant to preclude second parent adoptions); In re Adoption of T.K.J. and K.A.K., 1996 Colo. App. LEXIS 176, rehearing denied (Colo. Ct. App. Aug. 1, 1996)(a biological mother cannot consent to her partner’s adoption of the couple’s child without giving up her own parental rights); In re Adoption of Doe, 1998 WL 904252 (Ohio Ct. App. 1998)(statute calls for termination of parental rights), appeal docketed, No. 99-25 (Jan. 29, 1999). In a related vein, the New Hampshire Supreme Court rejected the joint petition of an unmarried heterosexual couple. See In Re Jason C., 129 N.H. 762, 533 A.2d 32 (1987).

[14] Adoption of Tammy, 416 Mass. 205, 215 (1993). GLAD’s briefs, and the briefs filed in other cases, are available upon request. For other publications making the arguments as to children’s best interests, see e.g. Report of the American Bar Association, Resolution 109B, at 2-4 (Feb. 8, 1999); Suzanne Bryant, “Second Parent Adoption: A Model Brief,” 2 Duke J. Gender and Pol’y 233 (1995).

[15] Report of the American Bar Association, Resolution 109B (adopted by House of Delegates, Feb. 8, 1999).

[16] Public Act 00-228.

[17] Adoption of Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999).

[18] In re Tammy, 619 N.E.2d 315, 416 Mass. 205 (1993).

[19] M.G.L. c. 210.

[20] Adoption of Susan, 416 Mass. 1003 (1993).

[21] In Re Jason C., 129 N.H. 762, 533 A.2d 32 (1987).

[22] In re B.L.V.B. and E.L.V.B. 628 A.2d 1271, 160 Vt. 368 (1993).