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LGBT adoption in the United States

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LGBT adoption in the United States

The legal status of LGBT adoption in the United States varies by jurisdiction. States and other jurisdictions may restrict adoption by sexual orientation or marital status. In some states, since adoptions are handled by local courts, practices may vary within a given jurisdiction.[1] A same-sex couple can adopt in most states. More states permit adoption by an individual who is gay or lesbian.

According to Lambda Legal, which has represented many same-sex couples in state and federal courts:[2]

About half of all states permit second-parent adoptions by the unmarried partner of an existing legal parent, while in a handful of states courts have ruled these adoptions not permissible under state laws. This leaves parents in many states legally unrecognized or severely disadvantaged in court fights with ex-spouses, ex-partners or other relatives.

Same-sex marriage can remove legal obstacles to the adoption of children by lesbian, gay, bisexual and transgender (LGBT) persons. Adoption can take the form of a joint adoption by a same-sex couple (second parent adoption) or adoption by one member of a same-sex couple of the other's biological child (stepparent adoption). The second parent adoption process by a state-recognized spouse or partner is generally more streamlined and less expensive than stepparent adoption, though even the former is not as simple for same-sex couples as for different-sex couples unless their state recognizes same-sex marriages.[3]

Population

As of 2011, approximately two million children in the United States were being raised by LGBT parents and unable to establish a legal relationship with both their LGBT parents.[3] According to the Williams Institute, as of 2009 "an estimated 20,000 same-sex couples are raising nearly 30,000 adopted children."[4]

Professional assessments

A consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.[5] The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.[6] Based on the robust nature of the evidence available in the field, the Third District Court of Appeal of the State of Florida was satisfied in 2010 that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.[7]

Public opinion

A 2007 poll by CNN and Opinion Research Corp. found that 57% of respondents felt same-sex couples should have the right to adopt and 40% that they should not.[8] More recently, a Gallup poll from May 2014 found 63% of respondents believed same-sex couples should have the legal right to adopt a child.[9]

Politics

On July 29, 1999, U.S. Representative Steve Largent introduced amendment 356 (H.Amdt. 356) to the District of Columbia Appropriations Act, 2000 (H.R. 2587) that would have banned joint adoption between individuals who are not related by blood or marriage in Washington, D.C. The amendment failed with 213 votes in favor and 215 opposed.

On May 10, 2012, Republican presidential candidate Mitt Romney told an interviewer: "And if two people of the same gender want to live together, want to have a loving relationship, or even to adopt a child -- in my state individuals of the same sex were able to adopt children. In my view, that's something that people have a right to do." Asked the next day to reconcile that with his opposition to same-sex marriage, he said: "Well actually I think all states but one allow gay adoption, so that's a position which has been decided by most of the state legislators, including the one in my state some time ago. So I simply acknowledge the fact that gay adoption is legal in all states but one."[10]

Legal status

Law on same-sex adoption

Legal status of adoption by same-sex couples in the United States
  Joint adoption and stepparent adoption legal1
  Stepparent adoption legal
  Joint adoption illegal
  Stepparent adoption illegal
  Unknown/ambiguous
1Stepparent adoption is not legal in Arkansas and Maine.
US States' laws on adoption by same-sex couples[11]
State LGBT individual may petition to adopt Same-sex couple may jointly petition Same-sex partner may petition to adopt partner's child
Alabama Yes (State court denies)[12] (In some jurisdictions)
Alaska Yes Yes Yes
Arizona Yes Yes Yes
Arkansas Yes Yes Yes
California Yes Yes Yes
Colorado[13] Yes Yes Yes
Connecticut Yes Yes Yes
Delaware[14] Yes Yes Yes
District of Columbia Yes Yes Yes
Florida Yes (No explicit prohibition) (No explicit prohibition)
Georgia Yes (No explicit prohibition)
Hawaii[15] Yes Yes Yes
Idaho Yes Yes Yes
Illinois Yes Yes Yes
Indiana Yes Yes Yes
Iowa Yes Yes Yes
Kansas Yes Yes Yes
Kentucky[16] Yes (No explicit prohibition) No
Louisiana Yes (In some jurisdictions)
Maine Yes Yes Yes
Maryland Yes Yes Yes
Massachusetts Yes[17] Yes[17] Yes[17]
Michigan Yes No (No explicit prohibition)
Minnesota Yes Yes Yes
Mississippi Yes No[18] [18]
Missouri Yes Yes Yes
Montana Yes Yes Yes[19]
Nebraska Yes[20] (No explicit prohibition) No
Nevada Yes Yes Yes
New Hampshire Yes Yes[21] Yes[21]
New Jersey Yes Yes Yes
New Mexico[22] Yes Yes Yes
New York Yes[23] Yes[23] Yes[23]
North Carolina[24] Yes Yes Yes
North Dakota Yes[25]
Ohio[26] Yes No
Oklahoma[27] Yes Yes Yes
Oregon Yes Yes Yes
Pennsylvania[28] Yes Yes Yes
Rhode Island[29] Yes[29] Yes[29] Yes[29]
South Carolina Yes Yes Yes
South Dakota Yes
Tennessee Yes (No explicit prohibition)
Texas Yes (No explicit prohibition) (In some jurisdictions)
Utah[30] Yes Yes Yes
Vermont Yes Yes Yes
Virginia Yes Yes Yes
Washington Yes Yes Yes
West Virginia Yes Yes Yes
Wisconsin Yes Yes Yes
Wyoming Yes Yes Yes

Puerto Rico. On February 20, 2013, the Supreme Court of Puerto Rico upheld a law that bans same-sex couples from adopting children.[31]

Cases

Alabama. On October 12, 2012, a unanimous Alabama Court of Civil Appeals turned down the request of a woman to adopt her same-sex spouse's child. The women had been married in California. The court held that Alabama law did not recognize the women as spouses.[12]

Arkansas. On November 4, 2008, Arkansas voters approved Act 1, a measure to ban anyone "co-habitating outside of a valid marriage" from being foster parents or adopting children. Although the law could apply to heterosexual couples, it was believed to have been written to target gay couples due to the fact that same-sex marriage is prohibited in that state, thereby making an adoption impossible.[32] Single gay men and lesbians were still allowed to adopt in Arkansas. The law was overturned on April 16, 2010 by state judge Chris Piazza.[33] The Arkansas Supreme Court in Howard v. Arkansas upheld the lower court's decision on April 7, 2011.[34]

Florida. In Florida, a 1977 law prohibited adoption by homosexuals following the anti-gay Save Our Children campaign led by Anita Bryant. In November 2008, a state circuit court struck down the law in In re: Gill, a case involving a gay male couple raising two foster children placed with them in 2004 by state child welfare workers.[35] On appeal, on September 22, 2010, Florida's Third District Court of Appeals unanimously upheld the decision of the lower court. The state did not appeal.[36]

Idaho. In 2013, a lesbian couple married in California petitioned for second-parent adoption. A state magistrate denied the petition on the grounds that Idaho did not recognize their marriage. On appeal, the Idaho Supreme Court unanimously reversed the magistrate's ruling because Idaho has no specific statutory ban on unmarried second-parent adoption.[37]

Kansas. In November 2012, the Kansas Court of Appeals ruled in the case In the Matter of the Adoption of I. M. that a single person who is not a biological parent of a child cannot petition to adopt that child without terminating the other parent's parental rights. Since Kansas does not recognize same-sex marriages, this ruling effectively prevents same-sex couples from second-parent adoption in Kansas.[38] However, the Kansas Supreme Court ruled on February 22, 2013, in Frazier v. Goudschaal that a partner of a biological parent is entitled to parental rights.[39]

Michigan. In December 2012, the Michigan Court of Appeals ruled that the state's adoption code permits second parent adoptions by same-sex couples.[40]

Two Michigan lesbians, who are raising three children adopted by only one of them, filed a lawsuit in federal court in January 2012 seeking to have the state's ban on adoption by same-sex couples overturned.[41] and in September amended that suit to challenge the state's ban on same-sex marriage as well.[42]

Nebraska. Three same-sex couples filed a lawsuit against the state on August 27, 2013, seeking the right to serve as foster and adoptive parents. It claimed that the state's policy against allowing two unrelated adults to adopt has been consistently enforced only against same-sex couples.[43]

New York. An October 2012 court ruling in a custody dispute between two women in a same-sex relationship awarded custody to the adoptive parent rather than the biological mother.[44]

Recognition of adoption by other states

In August 2007, the Tenth Circuit Court of Appeals in the case of Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere. It held that an Oklahoma statute that rejects certain out-of-state adoption decrees violates the Full Faith and Credit Clause of the U.S. Constitution.[45] By contrast, Louisiana in Adar v. Smith successfully defended in federal court its refusal to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple who sought to have a new certificate issued with their names as parents as is standard practice for Louisiana-born children adopted by opposite-sex married couples.[46] The Supreme Court refused to hear the case on appeal.[47]

References

  1. ^ Saenz, Arlette (May 14, 2012). "Despite Romney Claim, Same-Sex Adoption Laws Vary". ABC News. Retrieved July 24, 2012. But many states' laws on adoption by same-sex couples are vague and left to the discretion of judges. 
  2. ^ "Adoption and Parenting," Lambda Legal, accessed 8 July 2011
  3. ^ a b Bernard, Tara Siegel (July 20, 2012). "A Family With Two Moms, Except in the Eyes of the Law". New York Times. Retrieved July 24, 2012. 
  4. ^ "Supreme Court adoption ruling puts in doubt about 90,000 adoptions by unmarried couples". Windy City Times. Retrieved July 24, 2012. 
  5. ^ United States District Court District of Massachusetts July 8, 2010
  6. ^ In the United States District Court for the Northern District of California - August 4, 2010
  7. ^ Third District Court of Appeal State of Florida - September 22, 2010 (PDF)
  8. ^ "McCain blasted for gay adoption opposition". USA Today. July 15, 2008. Retrieved August 20, 2013. 
  9. ^ "Gay and Lesbian Rights". Gallup. Retrieved August 22, 2014. 
  10. ^ Shelley, Matthew (May 11, 2012). "Romney backs away from gay adoptions". CBS News. Retrieved July 24, 2012. 
  11. ^ "Adoption, Foster Care Agencies & State Law". HRC. Retrieved January 19, 2012. 
  12. ^ a b Johnson, Bob (October 12, 2012). "Court upholds Ala. act banning same-sex marriage". Mercury News. Retrieved October 13, 2012. 
  13. ^ Colorado Adoption Law
  14. ^ Delaware Civil Union Law
  15. ^ Entering into a Hawai`i Civil Union
  16. ^ Kentucky Adoption Law
  17. ^ a b c State regulatory code allows delaying or denying an adoption based on sexual orientation. With same-sex marriage now legal, how this would apply to married same-sex couples is uncertain.
  18. ^ a b Mississippi allows unmarried adults and married couples to petition, amended in 2000 to prohibit "couples of the same gender" from adopting.
  19. ^ Mont. Code Ann. § 42-4-302
  20. ^ http://www.hrc.org/laws-and-legislation/entry/nebraska-adoption-law
  21. ^ a b New Hampshire Second Parent Adoption: FAQs Accessed August 18, 2014.
  22. ^ New Mexico Adoption Law
  23. ^ a b c [1]
  24. ^ "States where same-sex couples are barred from doing joint and/or second parent adoptions statewide".  
  25. ^ http://www.hrc.org/laws-and-legislation/entry/north-dakota-adoption-law
  26. ^ Ohio Adoption Law
  27. ^ Oklahoma Adoption Law
  28. ^ Pennsylvania Adoption Law
  29. ^ a b c d Rhode Island H 6103 - An Act Relating to Domestic Relations - Civil Unions
  30. ^ Utah Adoption Law
  31. ^ Coto, Danica (February 20, 2013). "Puerto Rico denies gays right to adopt children".  
  32. ^ Gay-Adoption Ban Passes in Arkansas
  33. ^ State judge overturns Ark. adoption ban law
  34. ^ Terkel, Amanda (April 7, 2011). "Arkansas Supreme Court Strikes Down Ban On Gay Adoptions". Huffington Post. Retrieved July 24, 2012. 
  35. ^ Miami judge rules against Fla. gay adoption ban
  36. ^ Schwartz, John (September 22, 2010). "Florida Court Calls Ban on Gay Adoptions Unlawful". New York Times. Retrieved November 23, 2014. 
  37. ^ Popkey, Dan (February 10, 2014). "Idaho Supreme Court sides with Boise lesbian couple in adoption case". Idaho Statesman. Retrieved November 22, 2014. 
  38. ^ In re I. M. (Kan. Ct. App. 2012). Text
  39. ^ http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2013/20130222/103487.pdf
  40. ^ "ACLU Praises Appeals Court Decision on Same-Sex Second-Parent Adoption, December 13, 2012". ACLU. Retrieved March 4, 2013. 
  41. ^ "Michigan adoption ban for unmarried couples being challenged in court today". Detroit News. August 29, 2012. Retrieved September 7, 2012. 
  42. ^ Ferretti, Christine (September 7, 2012). "Hazel Park women challenge Michigan's marriage amendment". Detroit News. Retrieved September 7, 2012. 
  43. ^ O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013. 
  44. ^ Mangan, Dan (October 1, 2012). "Judge rejects birth mother & gives custody to partner". New York Post. Retrieved October 2, 2012. 
  45. ^ Finstuen v. Crutcher (10th Cir. 2007). Retrieved July 11, 2011. Oklahoma's governor did not participate in the appeal. The state attorney general took the same view of the full faith and credit claus as the court and did not appeal.
  46. ^ "Gay dads lose appeal in Louisiana birth certificate case". NOLA. April 12, 2011. Retrieved April 13, 2011. 
  47. ^ "Supreme Court Turns Down Adoption Birth Certificate Case". The Advocate. October 11, 2011. Retrieved February 9, 2012. 

Additional sources

  • Carlos A. Ball, The Right to Be Parents: LGBT Families and the Transformation of Parenthood (New York University Press, 2012)
  • , July 11, 2013Washington PostJuliet Eilperin, "Another front in the gay rights battle",
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