Representing Same-Sex Adoption Clients
Helping gay or lesbian clients reach the goal of being joint parents through adoption is both enriching and rewarding. Here are a few practice tips:
Know the law. Be sure you’re familiar with adoption laws in your state and local jurisdiction. “Second-parent adoption” generally is the term used when same-sex parents adopt a partner’s child, but learn the correct terminology used in your state. Although a state may not specifically allow or preclude second-parent adoptions, some will let them proceed as joint or stepparent adoptions, and some counties are more favorable than others when it comes to granting adoptions to same-sex couples.
Identify the type of adoption. At the consult, be sure you identify the type of adoption being sought. Your client may (a) be the birth or adoptive parent who wants the partner to adopt the child; (b) want to adopt a child now so a partner can adopt the child later; or (c) want to adopt the partner’s child.
Establish who you represent. Gay and lesbian clients often seek legal advice as a couple. The potential for conflict exists with second-parent adoptions because the legal parent gives up the constitutional right to exclusively parent the child and the adopting parent takes on the legal responsibility of parenting and supporting the child even after a dissolution. Be clear in your retainer agreement about conflicts, waivers, and who is your client.
Know the legal impact on your client. Discuss what rights your client is giving up or gaining by adopting a child. Gay and lesbian clients often ask if the adoption will be recognized in other states. While the answer should be “yes” under the Constitution’s Full Faith and Credit Clause, it’s unclear whether every state will recognize two legal parents of the same sex. Advise your clients to investigate parental rights laws before relocating to another state. You should also be familiar with the tax benefits and consequences of adoption. You need not be an expert on tax law, but know the state and federal tax benefits to the adopting parent and advise your client to seek tax advice regarding dependents, filing status, and exemptions.
Network with experienced lawyers. Representing gay and lesbian adoption clients requires a lot of attention to detail, so it’s helpful to reach out to others with similar legal experience in this area to help with the process.
Jennifer S. Fairfax is special counsel at Strickler, Sachitano & Hatfield, P.A., in Bethesda, Maryland, with an emphasis on adoption, LGBT, and traditional family law. Contact her at firstname.lastname@example.org.