Forming A Family Through Adoption Pt. 1

If my partner and I are legally married, do we have a better chance of adopting?

First of all, it’s important for people to understand that adoption statutes vary from one state to the next. Before they do anything, they should contact an attorney in their state who is knowledgeable about same-sex relationships and same-sex legal issues. There are a number of ways to find an attorney. Some states have a Lesbian and Gay Bar Association; there are several national organizations like the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders who may be able to find referrals in your area. But in terms of whether or not someone can adopt, it depends on your state.

So for example, in FL there used to be a statute that specifically prohibited lesbian and gay individuals from adopting. In 2010, that was held to be unconstitutional so that gay and lesbian individuals can adopt. Whether or not couples can adopt is going to be determined on a state-by-state basis. In some states, unmarried couples can adopt and in some states only married couples can adopt. Now that gay marriage recently became legal in many more states, it remains to be seen how that will play out. There still are states where gay and lesbian couples cannot adopt, unmarried couples cannot adopt, and there are some states where gay marriage is still banned and not recognized where married couples will not be able to adopt. In several jurisdictions like Massachusetts, California, New York, New Jersey, Connecticut and others, there is no issue with gay couples married or unmarried adopting.

There are different types of adoptions as well. Because of more stringent rules prohibiting lesbian and gay individuals and sometimes single people to adopt, international adoption is not really possible at this point in time. Most private domestic adoptions are what is known as identified adoptions, in which the birth parents are involved with actually choosing the family who will adopt their child. In my experience, being married may help with particular birth parents. In general, I find that being gay is not a bar or a limitation to being selected by birthparents. It may be with some individuals, but in general I don’t find that gay couples wait any longer than straight couples to be matched with a birth mother.

The other way to adopt is through the public child welfare system and, from my own experience in Massachusetts, gay couples, married or unmarried, are not going to have any difficulty adopting through the system. That said, if you live in a state that doesn’t recognize your marriage or doesn’t allow gay or lesbian individuals or couples to adopt, you will likely not be able to use this system.

Why identifying an attorney that specializes in LGBTQ matters is important.

The reason that’s important is that people who don’t have experience in working with the courts or with adoption professionals in this area may unwittingly step into a landmine if they’re not aware of how these things are done. For example, in some states there are no statutes that explicitly allow or prohibit adoption by gay couples, but some trial courts may have allowed second parent adoptions or co-parent adoptions; only a lawyer who does this kind of work would have that information. And I think it’s important that people seek legal advice from people who have the information they need.

Do you have additional questions about adoption? Ask attorney Kauffmann during our Talk Back Tuesday chat on Twitter, November 18 at 7pm. Submit your questions using #FECTalk and follow @family_equality on Twitter for expert advice on forming your family.

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