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Adoption Issues for Gay and Lesbians and Same-Sex Couples


Introduction

The unique dynamics of adoption can be difficult for every prospective adoptive parent at some point in the process, and the hurdles sometimes faced by gay and lesbian individuals and same-sex couples can make the process even more challenging. This information addresses some of the key issues facing homosexuals and same sex couples seeking to adopt.

Frequently Asked Questions

Q: Can homosexuals and same-sex couples adopt children in the United States?

A: There is no federal legislation regarding homosexual or same-sex adoption; as with many aspects of adoption law, adoption requirements and restrictions differ from state to state. Gay and lesbian individuals and same-sex couples are eligible to adopt children in many states. However, some states do not permit same-sex couples (or any unmarried couple, whether or not they are of the same sex) to adopt jointly. Instead, one parent must file the adoption petition and thereby become the sole legally-recognized parent.

Q: Can states refuse to allow homosexuals and same-sex couples to adopt?

A: Florida statute expressly prohibits homosexuals and same-sex couples from adopting individually or jointly, but a recent court decision in Fla. Dep't of Children & Families v. X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 3d Dist. 2010) holds that subsection 63.042(3), Florida Statutes [“No person eligible to adopt under this statute may adopt if that person is a homosexual.”], violates the equal protection provision found in article I, section 2, of the Florida Constitution and therefore the statute is unconstitutional. Despite the court opinion above, the statute is still on the books. Mississippi prohibits adoption by same-sex couples. Some states have implicitly prohibited homosexuals from adopting by restricting adoption to only married individuals. Courts and agencies in other states retain discretion to consider a parent’s sexual orientation in adoption and custody disputes. Other states have enacted legislation to expressly recognize and support same-sex families.

Q: What if I want to adopt my partner’s child or my partner wants to adopt my child?

A: Some states allow for a process called “second parent adoption”, which is similar to a stepparent adoption. In both a stepparent adoption and a second parent adoption, the child’s biological/adoptive parent is able to retain legal parentage and parental rights while adding the partner/spouse as a legal parent.

In states that do not permit second parent adoption, an alternative is to create a co-parenting agreement - a legal document which outlines the rights and responsibilities of both partners, financially and otherwise.

Q: What if we adopt a child together in one state and then move to another state? Is the adoption still valid?

A: Most states honor adoption decrees from other states. However, a few states refuse to recognize marital or parenting contracts made between same-sex partners in another state.

Q: What if my partner and I break-up?

A: In some states, the non-custodial parent must pay child support to the ex-partner. Also, some courts have either granted or recognized the right to visitation by the non-custodial parent. Co-parenting agreements can also address the rights and responsibilities of each parent in the event of a break-up.

Q: How does sexual orientation impact international adoption?

A: International adoptions are complex because they involve the laws of the sending country, laws of the receiving state, as well as federal immigration law. As with some states in the U.S., some countries ban homosexuals and same-sex couples from adopting (e.g., China).



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