Same-sex couples are changing the portrait of the American family and the landscape of family law. The number of children raised by lesbian and gay parents has continued to increase as reproductive technologies advance and as the availability of adoption expands. For same-sex parent families, it is essential to ensure that both parents have a legal parent-child relationship with their children. When a married couple has a child together, both parents automatically have a legal parent-child relationship with the child. Because same-sex couples cannot currently marry, this automatic legal relationship is not available, and, in most situations when a same-sex couple has a child together, only one parent has a legal relationship to the child.
This lack of a legal relationship has very real and important consequences for the child. Without a legal relationship with the second parent, a child has no right of financial support or inheritance from the nonlegal parent and cannot receive social security, retirement, or state workers' compensation benefits if the nonlegal parent dies or becomes incapacitated. The child may also be ineligible for health or other insurance benefits supplied by the nonlegal parent's employer, and the nonlegal parent could be ineligible for leave under the Family Medical Leave Act if the child became seriously ill. Even in an emergency, the nonlegal parent may not be able to consent to medical treatment or even visit the child in the hospital.
The vulnerability becomes even more acute in cases where the legal parent dies or becomes incapacitated. Without a legal parental relationship, the child may be removed from the care of the nonlegal parent, become a ward of the state, or be placed with the child's blood relatives whether or not the child has a close relationship with them. Even a legal parent's nomination of the partner as the child's guardian in a will is no guarantee that those wishes will be followed. Two reported cases involve a child with same-sex parents whose legal parent died without a second-parent adoption in place. In McGuffin v. Overton, 542 N.W.2d 288 (Mich. Ct. App. 1995), the court denied custody to the lesbian coparent after the death of the biological mother, despite a power of attorney and will designating the coparent as the child's legal guardian. In another case, the child's maternal grandparents denied the coparent visitation after the mother's death and then adopted the child without the coparent's knowledge or consent. The lesbian coparent petitioned the court to invalidate the adoption and was ultimately awarded custody, but the victory was not without legal and emotional cost. In re Pearlman, 15 FLA. L. REP. (BNA) 1355 (Fla. Cir. Ct. May 30, 1989).
The vulnerability is also acute if the relationship between the parents dissolves. Without a legal relationship to both parents, in the event of a separation, the child may have no right to child support from the nonlegal parent and may also be prevented from maintaining a relationship with that parent. Although courts in custody cases generally attempt to ensure ongoing relationships between children and both parents after a separation, this often is not the case for same-sex parents. In the absence of a legally recognized parent-child relationship, a second parent may be held to be a legal stranger to the child with no right to custody or even visitation with the child. Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459 (1990).
Given these circumstances, it is vitally important for the parents to take steps to establish a legal relationship between the second parent and the child. Typically, a child who enters a same-sex family already has a legal relationship with one of the partners, either biologically or through adoption. The challenge then becomes how to create legal rights for the parent's partner, who often planned and participated in the birth of the child with the intention of coparenting the child. In what ways can the law inhibit or affirm and protect a parent-child relationship that already exists psychologically and emotionally? One of the most common methods of establishing this legal relationship is a second-parent or coparent adoption-categories with which many lawyers are not yet familiar.
Adoption laws, which are regulated by state statutes, are the basis for creating legal rights between a parent and a child where there is no existing legal relationship. During the past twenty years, "second-parent " or "coparent adoption" has evolved as a method to secure legal rights for same-sex parents and their children. Second-parent or coparent adoptions permit the second partner to become the child's second legal parent without requiring termination of the first partner's parental rights. These adoptions protect children being raised by parents who do not have the legal sanctions of marriage, by providing the child the security of two legal parents.
In a typical second-parent or coparent adoption scenario, one person is the legal parent of a child, either as a biological parent (insemination or surrogacy) or through an adoption. The second partner, separately or with the first parent (depending on the procedures used in the particular state), then petitions the court to adopt the child, requesting that the adoption be granted without terminating the first parent's rights. In many states, an adoption cannot be granted without terminating the existing legal parents' rights. The exception to this is "stepparent adoption," in which the first parent and the petitioner are married and the parent consents to the adoption. Because no jurisdiction currently recognizes same-sex marriages, however, the lesbian or gay couple is considered unmarried. Courts granting second-parent or coparent adoptions do so by interpreting adoption laws liberally to further a result that is in the best interests of the child. This means ensuring a child has two legal parents by allowing a result similar to that in a stepparent adoption.
Second-parent adoptions are currently available by statute or appellate court decisions in ten states: California, Connecticut, District of Columbia, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania, and Vermont. Second-parent adoptions are also available in counties in at least fifteen other states. Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoptions, 75 CHI.-KENT L. REV. 933, 934 (2000). In March 2003 Indiana joined the list of state appellate courts authorizing second-parent adoptions when it found through a common law analysis that it is in the best interests of children to be entitled to the legal protections and advantages that a two-parent adoption provides. In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003).
The legal trend is toward approving second-parent adoptions, but appellate courts in Colorado, Ohio, Nebraska, and Wisconsin have held that such adoptions are not permissible. Many of these decisions are based on particular facets of the relevant state adoption provisions. Last year the Nebraska Supreme Court ruled the state's adoption statutes do not provide for second-parent adoption because an unmarried person can adopt only if all necessary consents and relinquishments of parental rights are filed. In this case, because the first parent had not sought to relinquish her parental rights, the court found that the requirements had not been met. Additionally, because the couple was not married, the court held they could not meet the stepparent exception to relinquishment. In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002).
Many professional organizations support the availability of second-parent adoptions because of the crucial legal and emotional bonding created by a legally recognized parent-child relationship. In February 2002 the American Academy of Pediatrics issued a policy statement supporting "legislative and legal efforts to provide the possibility of adoption of the child by the second parent or co-parent in [same-sex parent] families." Other groups issuing supportive policy statements include the American Academy of Family Physicians, the American Psychiatric Association, and the American Psychoanalytic Association.
The American Bar Association is currently considering a resolution supporting state and territorial laws and court decisions that permit joint and second-parent adoptions by unmarried couples who function as a child's parents. The resolution was submitted by the Section of Family Law and the Section of Individual Rights and Responsibilities and will be voted on this summer at the 2003 Annual Meeting in San Francisco, California.
Second-parent adoption provides a same-sex partner with the legal rights and responsibilities of legal parenthood. It also gives the child the benefit and protection of two legal parents. Without the option of second-parent adoption, families are vulnerable. The stakes in this issue are so high that many families relocate to a jurisdiction that allows second-parent adoption in order to obtain protected legal status. In Pennsylvania, second-parent adoptions were suspended from 1998 to August 2002 while a case determining the legality of second-parent adoption made its way through the appellate courts. During that time, hundreds of same-sex partners who had or planned to have children moved to nearby New Jersey, which permits second-parent adoptions, to ensure legal protections for their families. In re the Adoption of Two Children by H.N.R., 285 N.J. Super. 1, 666 A.2d 535 (N.J. Super. 1995).
Other couples took advantage of the venue provision in New Jersey's adoption statute allowing adoption petitions to be filed in the child's birth county, regardless of the parent's residence, so long as the complaint is filed within three months of the birth. N.J.S.A. 9:3-42. The result was that when a pregnant woman went into labor, she and her partner headed not to the closest hospital but to New Jersey. Fortunately, the Pennsylvania Supreme Court recently held that the Pennsylvania Adoption Act allows second-parent adoption. For Pennsylvania's lesbian mothers, the risk of driving to another state while in labor is no longer the only way to ensure legal protections for their families. In re Adoption of R.B.F. & R.C.F., 803 A.2d 1195 (Pa. 2002).
Even in the states in which second-parent or coparent adoptions are available, there are legal complications that may have ramifications for attorneys assisting clients with adoption issues. If same-sex parents end the relationship and separate, attorneys who assisted with a second-parent adoption may face ethical issues when contacted by one of the partners for advice or representation regarding custody. Lawyers representing a couple in a second-parent adoption action must remember that the happy couple also represents potentially adverse parties in the future. Lawyers should obtain waivers of conflict and confidentiality at the beginning of the original matter. In some cases, biological parents who consented to second-parent adoption have gone so far as to try to undo the adoption or custody decision rendered after the couple parted. Russell v. Bridgens, 264 Neb. 217 (2002).
While second-parent adoption is a means to establish the vitally important parent-child relationship, it does not establish any legal relationship between the two parents. This lack of a legal relationship between the parents themselves puts the family at risk. Second-parent adoption solves the problems of custody and child support if the parents separate, but it does not cover property division, partner support, or other financial issues critical to continued parenting. It does not address the issues or rights of a partner after the other partner's death, where family leave, wrongful death suits, social security survivor benefits, and pensions are still unavailable to the surviving partner and parent. Only legal marriage can address all these concerns.
In states where second-parent adoptions are not available, attorneys may still be able to create some legal protections through privately executed legal documents or custody actions. Same-sex parent families may use coparenting agreements, nominations of guardianship, coguardianships, authorizations to consent to medical treatment, and authorizations to pick up and drop off children for school and activities. However, these documents do not create a legally recognized permanent parental relationship, and their effectiveness may be limited if the parents separate or the legal parent dies. In some jurisdictions, attorneys attempt to secure a custody order providing for joint legal and physical custody, even though the family is intact. The enforceability of these custody orders after the couple separates remains questionable in some states.
As more same-sex partners become parents, more attorneys and courts will grapple with the issues of their legal rights. Paramount in that debate should be the legal standard applicable in family law that will promote the best interests of the children involved.