Yes, gay and lesbian persons who are single and married may adopt a child in all 50 states and the District of Columbia. While this right is relatively new in some states, same-sex couples should not be prohibited from adopting based solely on their sexuality.
Adoption is a legal process in which an adult becomes the legal parent of a child that is not their biological child. Adoption can occur at varying ages of the child including adults and it can take place through an agency or between private persons by filing a petition with the Court.
In all cases, the adopting parent or parents must be “fit” to adopt the child. Whether a person is fit to adopt varies from state to state.
- Single Parent Adoption: where one adult becomes the parent of a child. A single gay or lesbian person may adopt on their own even if they are in a cohabiting relationship with another adult. However, because only one parent becomes the parent, the other person residing with the parent may not have any legal rights to the child should the relationship end.
- Joint Adoption: where two adults become parents of a child. Married same-sex couples often fall into this category when seeking adoption. When a joint adoption occurs, both parents have equal rights to the child should the marriage or relationship end between one another. Frequently, the custody process is similar to when a couple who had a biological child in common separates.
- Step-Parent Adoption: when one person in the marriage already has a biological child or a legally adopted child and then marries another adult that is not the parent of the child. The step-parent may adopt the child after marriage. This option exists where the same-sex couple’s marriage is legally recognized. However, adoption in this manner frequently requires the permission of the parent. A step-parent adoption does not take away or replace the spouse’s original parental rights.
- Second-Parent Adoption: recognized in some states but not all. In this type of adoption, a gay or lesbian person may adopt their partner’s biological or legally adopted child regardless if they are legally married. In this case, the adoption by the second-parent does not replace or take away the partner’s rights.
This depends on what type of adoption the couple family has obtained. Same-sex marriage is recognized when relocating to a new state, but not all adoption styles. For example, second-parent adoption exists in some but not all states so whether it is recognized outside those legal states may vary.
Yes, even though it is illegal to discriminate against a gay or lesbian person in the adoption process solely on the basis of their sexuality, there are still legal barriers to same-sex couples seeking adoption. While these barriers vary state to state, some common examples are as follows:
- Married couples may be preferred over single parents.
- Unmarried couples may be denied the second-parent adoption option.
- Unmarried couples may be denied access to the joint adoption option.
- Single persons seeking adoption may be prevented if cohabiting as an unmarried couple.
- Private adoption agencies may be able to discriminate against same-sex couples and singles even if they are a state licensed adoption agency.
Adoption can be a lengthy and challenge process. Because of the various barriers faced by gay and lesbian couples, a family law lawyer may be helpful in navigating the process and preparing for any discriminatory actions you may face in your state.