October 25, 2011 Articles

The Changing Landscape of Second-Parent Adoptions

By Leslie M. Fenton and Ann Fenton

Despite recent legal victories for same-sex couples, many are stymied when they try to seek legal protection for their relationships with their children. The failure of states to recognize "second-parent" adoption, a process whereby a child obtains two legal parents of the same biological sex, is one of the largest remaining barriers to legal equality for many Americans. While lesbian, gay, bisexual, and transgender (LGBT) parents have convinced courts in a significant minority of states to recognize such adoptions, the results of such litigation vary widely—and children are caught in the crossfire.

New Families, Old Laws
The census data that is currently available indicates that the family structure is in flux. Of the 5.5 million unmarried couples living together in 2000 (up from 3.5 million in 1990), approximately 1 in 9 had partners of the same sex and represented 1 percent of all couples households in the United States. See Tavia Simmons & Martin O'Connell, U.S. Census Bureau, Census 2000 Special Reports, Married-Couple and Unmarried-Partner Households: 2000 (February 2003). While the official 2010 census data is not yet complete, recently released numbers indicate that approximately one quarter of same-sex couples are raising children together. Susan Donaldson James, Census 2010: One-Quarter of Gay Couples Raising Children, ABC News, June 23, 2011.

Traditional adoption law, however, never contemplated adoptive households headed by same-sex couples. Historically, children were allowed just one legal parent of each sex at a time, which meant that an existing legal parent would have to terminate his or her own parental rights before her same-sex partner could adopt the child. But this old model of adoption fails as attorneys and family courts grapple with the reality that the modern family is increasingly headed by same-sex couples and other nontraditional family arrangements. Unmarried biological parents, transgender parents, grandparent caretakers, stepparents, and single parents have all encountered some degree of difficulty where their family structure does not fit neatly into that which is contemplated by family codes.

Past Prohibitions
In the past, some states expressly prohibited gays and lesbians from adopting children at all, but, in recent years, these anti-gay adoption bans have gone all but extinct. Florida, the last state to retain an explicit ban on adoptions by gays and lesbians, saw it struck down in 2010 by a state appellate court decision. See Fla. Dept. of Children & Families v. X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010). A 2008 voter-initiated Arkansas ban on adoptions by any "unmarried persons cohabitating with a sexual partner" was struck down by the Arkansas Supreme Court in 2011. Cole v. Arkansas, No. 10-840 (Ark. Apr. 7, 2011). Utah still has a similar ban. Utah Code 78B-6-117 (2008). Gays and lesbians as single individuals can now adopt children in most (if not all) states, but significant hurdles remain for same-sex couples who are parenting together. While adoption regulations expressly targeting LGBT families may have dissipated, outright and unspoken restrictions on adoptions by unmarried, cohabitating sexual partners create a de facto ban on adoptions by either member of a same-sex couple in states where they are not allowed to marry.

Benefits of Adoption
Opponents have long claimed that restricting second-parent adoptions protects children, but the reality is that children lose out on significant benefits when their parents are not legally recognized as such. Adopted children are entitled to all of the same benefits that usually flow to children from their biological parents as a matter of law. These benefits include the right to receive Social Security Survivor benefits on the death of the parent, eligibility for Social Security disability and Medicaid programs, and inheritance rights. In addition to these tangible benefits, once children are adopted by a nonbiological parent, that parent obtains standing (in many jurisdictions) to seek custody and visitation rights in the event of a separation or divorce. Additionally, children benefit enormously from simply having a legally recognized relationship with a nonbiological parent. "Kids know whether their relationship to their parents is secure," says Beth Allen, a family-law practitioner in Oregon who helps more than 50 clients a year obtain adoptions of their same-sex partners' biological children. "It is meaningful to them."

In the case of same-sex couples, courts and attorneys have created the concept of second-parent adoption to address the lack of guidance in traditional adoption law. Second-parent adoptions are frequently seen where two women agree to raise a child together and the child is conceived by one of them via anonymous sperm donation. In most states, the nonbiological parent must adopt to establish a legal relationship to the child. Second-parent adoption is also used in some states when a same-sex couple adopts a child jointly or where an opposite-sex biological parent has died or has otherwise terminated parental rights. Often, second-parent adoption is not enshrined in the law itself. Instead, it has been created through custom or case law as a way to deal with the reality of the modern American family, and it is constantly being reshaped by litigation.

Current State of Second-Parent Adoption
Adoption law is generally a province of the state, and same-sex families have varying degrees of legal protection depending on where they live. Traditional havens for LGBT families such as California and Massachusetts predictably provide strong protections, while some states that are generally hostile to LGBT rights offer no legal protections for nonbiological parents in same-sex couples. Most states fall somewhere in between and are often guided by decisions of state trial and appellate courts, even if there is no binding precedent.

It is important to note that the following information tends to change quickly as an increasing number of second-parent adoption cases are litigated. For the most up-to-date information about second-parent adoption in a particular state, it is always advisable to consult an experienced local family-law practitioner.

Explicitly Allowed
In a significant minority of states, the right to second-parent adoption is enshrined either by statute or appellate case law. California, Delaware, Indiana, Illinois, Iowa, Maine, Massachusetts, New Jersey, New York, Pennsylvania, Vermont, and the District of Columbia have all recognized some form of second-parent adoption via precedent-setting, state-court rulings. Connecticut, Colorado, and Vermont authorize second-parent adoption by statute. See In Your State, Lambda Legal (last visited September 4, 2011). Further, in states where same-sex relationships receive some type of formal recognition (usually marriage, domestic partnership, or civil union), same-sex couples may take advantage of laws designed to protect married spouses. In these relationship-recognition states such as California, stepparent adoption statutes can be applied to create an avenue to second-parent adoption.

In states where a husband is presumed to be the legal father of a child born to his wife during their marriage, a presumption of maternity for a child born during a marriage between two women may also apply. A presumption of maternity allows the nonbiological mother's name to appear on the original birth certificate. For example, California recognizes a presumption of maternity for registered domestic partners, and Illinois practitioners predict that the state's new civil-union law will give rise to the presumption. Practitioners are divided as to whether a presumption of maternity negates the need for formal second-parent adoption in states where such a presumption is recognized, but they generally agree that second-parent adoption is the safest legal option for preserving family ties, especially in the event of an out-of-state move.

Openly Recognized, Not Formalized
In some states, second-parent adoption is openly recognized but not explicitly provided for in statue or case law. In Oregon, for example, it appears that attorneys have cobbled together a viable second-parent adoption theory based on several other areas of family law. According to Oregon attorney Beth Allen, second-parent adoption is now so routine that it is universally recognized even by the Oregon Department of Human Services. Oregon also recognizes a presumption of maternity for the nonbiological parent where a child is born during a same-sex domestic partnership. Likewise, Washington has no precedential case law or statute, but practitioners widely report that courts will grant second-parent adoptions. In states like Washington, second-parent adoption is almost completely invisible in the law, making it difficult for families to determine their legal rights. Similar states, where numerous trial courts have approved second-parent adoptions but no binding precedent exists, also include Alaska, Georgia, Maryland, Minnesota, Missouri, Nevada, New Hampshire, New Mexico, Rhode Island, and Texas. See Lambda Legal, supra. For states in this category, LGBT families experience the highest level of uncertainty and confusion about their legal status as parents, in part because the successful second-parent adoptions are often limited to politically liberal jurisdictions within the state.

Outright and De Facto Prohibitions
Finally, many states prohibit second-parent adoption either by default or by case law. Utah and Louisiana bar unmarried couples from jointly adopting and do not recognize legal relationships between same-sex couples. Other states with no existing legal avenues for second-parent adoption include Florida, Idaho, Kansas, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming. Negative case law, sometimes precedential, guides judges in states such as Alabama, Arkansas, Arizona, Kentucky, Louisiana, Mississippi, Michigan, Ohio, Nebraska, North Carolina, Tennessee, and Wisconsin.

But even in states hostile to second-parent adoption, practitioners can persevere in helping their clients legally protect their families. In Wisconsin, where case law prohibits second-parent adoption, attorney Emily Dudak-Taylor reports that practitioners have successfully obtained second-parent adoptions where the biological parent consents to a termination of parental rights and subsequently both parents jointly adopt the child. In more conservative areas of the state, however, judges are reluctant to recognize even limited legal relationships such as guardianship. In Louisiana, where the case law is hostile and unmarried couples are prohibited from joint adoption, there are still anecdotal reports of successful second-parent adoptions performed by sympathetic judges. While these reports offer a glimmer of hope, practitioners are becoming increasingly apprehensive about the potential risk of asking trial courts to perform second-parent adoption in jurisdictions where the legal climate is generally hostile to LGBT rights.

Recent Litigation
Second-parent adoption is a particularly opportune field for impact litigation, precisely because of the lack of direction offered by most states' family laws. While the potential for litigation gives hope to families that their case could change the law of their state, it is also a cause for concern. A negative ruling in such a case could harm all other LGBT families in the state. In states where the law is unclear or silent, every custody battle between same-sex parents has the potential to affect the legal status of all same-sex parents; even other nontraditional family structures are potentially affected.

North Carolina: Boseman v. Jarrell
In North Carolina, a recent case demonstrated the frightening downside of impact litigation gone awry. Prior to last year, North Carolina fell into the category of states where the law was silent but practitioners reported numerous second-parent adoptions granted by trial courts. Then, in December 2010, the North Carolina Supreme Court issued an opinion in Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010), a contentious custody case between two lesbian parents. Melissa Jarrell and Julia Boseman began a relationship in 1998 and thereafter planned to raise a family. Jarrell conceived a child via anonymous sperm donation in 2002, and Boseman adopted the child via second-parent adoption in 2005. The women raised the child together as co-parents until their separation in 2006. When Boseman filed a petition for custody after the separation, Jarrell argued that the adoption was void and that Boseman had no custody or visitation rights. Boseman responded that the state's statutory time limit to contest an adoption had run and prohibited Jarrell's argument, a strategy that has worked in similar cases in other states. On appeal, however, the North Carolina Supreme Court sided with Jarrell and held that Boseman's adoption of the couple's child was void ab initio, exempting Jarrell's argument from the statutory time limit. Unfortunately, the court didn't limit its ruling to the case before it; the majority went on to find that all second-parent adoptions that have ever been performed in North Carolina are void ab initio.

Sharon Thompson, a North Carolina family-law practitioner and former state legislator, estimates that more than 200 families are directly affected by the ruling in Boseman. The result for these families, she says, is mass confusion. She is forced to explain to clients that the adoption decrees they thought were final are likely void and unenforceable. "It is heartbreaking for these families," she says. "I have to advise my clients that an insurance company could cut their child off of insurance, likely right after a big claim is filed." Thompson explained that when she is consulted by same-sex families considering a move from out of state to North Carolina, she must advise them that they will be unable to legally protect themselves under the state's adoption laws.

But Thompson is also adamant about pointing to the silver lining of Boseman: It confirmed a nonbiological parent's right to seek custody even if he or she is unable to adopt the child. Under the state's custody laws, if the biological parent acts in a manner that is inconsistent with "paramount" parenting rights—such as allowing a nonbiological caretaker to assume the role of primary parent—the nonbiological parent has standing to seek custody in court. Other states recognize different incarnations of de factoparentage, which is the only way for a nonbiological parent to protect his or her relationship with a child in states where second-parent adoption is prohibited.

Ohio: In Re Mullen
Underlining the silver lining of Boseman, the Ohio Supreme Court recently ruled the opposite way in a case with a notably similar fact pattern. In In Re Mullen, Slip Opinion No. 2011-Ohio-3361 (Ohio, Jul. 12, 2011), Kelly Mullen and Michele Hobbs agreed to parent a child together, and Mullen conceived a child, using a known sperm donor in 2005. The women shared parenting responsibilities until their separation in 2007, at which point Hobbs filed a petition for custody. The court held that a biological parent must explicitly and in writing relinquish sole custody to a nonbiological caretaker through a formal shared-custody agreement for the caretaker to have standing to seek custody. Because Hobbs and Mullen had no written agreement regarding parenting, Hobbs did not have standing to seek custody.Coupled with Ohio's general hostility toward same-sex families, the ruling means that, practically speaking, nonbiological parents in same-sex relationships in Ohio are at risk of losing all contact with their children if they separate from the biological parent. This is also true in New York for same-sex couples who do not formalize their relationship through marriage or a marriage-like status. Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010). While visitation and custody rights do not solve the problem of eligibility for tangible benefits, they go a long way to protect a child's right to a relationship with a nonbiological parent in the event that the biological parent attempts to sever those ties during a divorce or separation.

Louisiana: Adar v. Smith
The recognition of second-parent adoptions varies widely from state to state, and family-law attorneys are increasingly concerned about the portability of such adoptions. States have so consistently recognized full faith and credit for the adoption decrees of other states that, until recently, most practitioners did not consider portability to be a significant issue. Advocates are now worried about the results of a closely watched full-faith-and-credit case out of Louisiana that could be the first second-parent adoption case to land before the Supreme Court of the United States.

Lambda Legal brought Adar v. Smith in Louisiana federal district court on behalf of Oren Adar and Mickey Smith, two men who jointly adopted a Louisiana-born child in New York. When Smith and Adar applied to the Louisiana registrar to amend their child's birth certificate to reflect the New York adoption, the registrar refused, pointing to Louisiana's laws prohibiting unmarried couple adoptions. The men sued, arguing that the refusal violated the Full Faith and Credit Clause of the Constitution and that their rights under the Equal Protection Clause of the Fourteenth Amendment. Initially winning at the trial level and in front of a three-judge panel on the Fifth Circuit, on rehearingen banc, the Fifth Circuit reversed and found that the Louisiana registrar has no duty to give full faith and credit to the adoption decree of another state. Adar v. Smith, No. 09-30036 (5th Cir. Apr. 12, 2011) (en banc). The decision is one that Lambda attorney Kenneth Upton Jr., who argued the case, found "surprising in its scope and breadth." Like Boseman, the case may affect many families other than the litigants. If states are legally allowed to ignore out-of-state adoption decrees, Upton speculates that an adoptive parent traveling with a child could be accused of kidnapping or be unable to obtain emergency medical care for the child.

While Upton firmly believes that the Fifth Circuit's dissenters in Adar correctly found that the Full Faith and Credit Clause requires Louisiana to acknowledge the out-of-state adoption by amending the birth certificate, there is also significant danger to further appeal. A loss could overturn the Tenth Circuit's opinion in Finstuen, and it could embolden other states to enact bans on the recognition of out-of-state second-parent adoption decrees. Any negative results could take decades to correct. After a months-long inquest into the possible ramifications of appealing, including multiple consults with seasoned Supreme Court attorneys, former judicial clerks, and leading academic scholars, Lambda teamed up with private firm Jenner & Block to appeal to the U.S. Supreme Court. "If you focus on the interests of the children," Upton says, "this seems like the case to bring."

Same-sex families are currently imperiled by the uneven application of ill-fitting family-law codes and customs, and the trend will likely continue into the near future. Practitioners can best protect clients by keeping their knowledge current and seeking out creative relief. Until every state provides equal protection for these families, conscientious lawyering is often the only protection available.

Keywords: litigation, children's rights, second-parent adoption, same-sex couples

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Leslie M. Fenton and Ann Fenton — October 25, 2011