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Parenting | Second Parent Adoption | Vermont

Vermont Second Parent Adoption Q&A

Can a single gay individual adopt a child in Vermont?

Yes.  Vermont law provides that any person may adopt or be adopted by another person for the purpose of creating the relationship of parent and child between them (15A V.S.A. § 1-102(a)).

Can same-sex partners together adopt a child in Vermont?

Yes. The Vermont Supreme Court allowed a lesbian couple to adopt the biological children of one of the women in 1993 (In re B.L.V.B., 160 Vt. 368 (1993)). Subsequently, the Vermont legislature amended the adoption statute and now it provides, “If a family unit consists of a parent and the parent’s partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent” (15A V.S.A. § 1-102).

What are joint and second parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second parent adoption is when one partner adopts the other partner’s biological child.

What is the advantage of doing a second parent or joint adoption?

 

Both joint adoptions and second parent adoptions ensure your child has two legal parents, which often provides greater comfort and security to everyone involved. Depending on your particular family situation, the law may not recognize both partners as legal parents without an adoption. In these cases, the non-legal parent needs special permission to make medical decisions for the child or attend school meetings, and is at risk of losing custody if the couple splits up.

Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from them even absent a will, and may be able to collect social security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we have a marriage or civil union?

Yes. A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple (Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, para. 45-46 (the non-birth parent has standing as a step-parent); para. 47 (as a step-parent by virtue of the civil union); para. 48-56 (based on the circumstances of undertaking to be a family together)). While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Miller-Jenkins Sidebar

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins. This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing. In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.

In November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant has been issued.

On March 8, 2010, Liberty Counsel filed on Lisa’s behalf an appeal of the custody order with the Vermont Supreme Court, and GLAD has filed a response on behalf of Janet.  GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to https://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

In 2006, in the case of Miller-Jenkins v. Miller-Jenkins, the Vermont Supreme Court rejected an attack on the parentage of the non-birth parent by that parent’s civil union spouse in the context of a dissolution action.  The couple had not adopted, and that gave an opening to the birth parent to argue the issue.  The Vermont court ruled that the civil union, as well as the fact that they had undertaken to form a family together with the assistance of artificial insemination, meant that the child was the legal child of both civil union spouses.

While the result in Miller-Jenkins is a good one, it came only after years of litigation, uncertainty and one parent’s separation from the child that could have been avoided if the couple had adopted in the first place.  Moreover, the circumstances of the Miller-Jenkins case will not apply to everyone:  when one party in a couple relocates, things can change for the worse.  Please call GLAD’s Legal InfoLine for information on these issues.

In Miller-Jenkins, the Vermont Supreme Court did not discuss its former opinion in Titchenal v. Dexter (693 A.2d 682 (Vt. 1997)). In that case, the Vermont Supreme Court ruled that the Superior Court had no jurisdiction to entertain the visitation claim of a lesbian parent who had not adopted the child in a conflict between former lesbian partners. That case did not address the jurisdictional power of the Family Court to decide such cases.

With Miller-Jenkins in place, it now seems likely that the Vermont Family Court, (rather than the Superior Court whose jurisdiction was at issue in Titchenal) determines custody, visitation and support issues upon the dissolution of a civil union or marriage, as confirmed in Miller-Jenkins.  The reasoning in the Miller-Jenkinsopinion might also support the possibility of the Family Court having jurisdiction to hear a de facto parenting case in circumstances where a couple has jointly decided to and in fact has parented a child together even though they did not adopt (15 V.S.A. § 1206; Miller-Jenkins, 912 A.2d at para. 55-56). This is a developing area of law and you should contact GLAD and Vermont-based practitioners.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss. Moreover, court proceedings to establish visitation will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families: Standards for LGBT Families.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offers the security of an adoption decree.

  • Co-parenting Agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.
  • Wills: A legal parent may, by last will, nominate a guardian of the child upon the parent’s death (14 V.S.A. § 2656). These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
  • Power of Attorney:  A legal parent may choose to grant the non-legal parent power of attorney over the child, which allows the non-legal to make medical or financial decisions. Power of attorney documents should be updated regularly.