LGBT Adoption in California

March 1, 2017

Adopting a child can be one of the most rewarding experiences of a lifetime. When it comes to starting a family, many LGBT couples and individuals choose this option.

Historically, adoption hasn’t always been easy for the LGBT community. Before 2015, many states banned LGBT folks from adopting children, either due to legal barriers, because of discrimination, or both. Since state law often favored married couples in the adoption process, states that did not allow LGBT couples to marry were particularly challenging, if not impossible, for caring would-be parents to adopt children desperately in need of homes.

In 2015 when gay marriage became legalized nationwide with Obergefell v. Hodges, the adoption process became significantly more accessible, and was simplified for LGBT couples in many states.

However, the legal landscape is still in development. There have been some positive changes, such as the V.L. v E.L. ruling in March 2016 that found that states must recognize the validity of adoptions made in other states, regardless of the sexual orientation of the parents. Yet, there have also been some setbacks, such as the “religious freedom” rulings we’ll discuss below.

To consider what type of adoption might work for you, there are a few questions to begin with.

Who is adopting?

Stepparent adoption: When an individual already has a child (whether adoptive or biological), then marries, the new spouse may petition to adopt the child. Before Obergefell v. Hodges, many couples found this option out of reach if the state they resided in did not recognize gay marriage. Now, no states may deny stepparent adoption on the basis of sexual orientation if the couple is married. However, each state still has different laws spelling out requirements such as how long the couple has been married, whether a home study is needed, and so forth.

Second-parent adoption: This is similar to stepparent adoption, but for couples that are not married. Currently, many laws are hazy when it comes to LGBT couples that are in a domestic partnership, or those with no legal relationship. Only seven states legally bar discrimination in adoption based on sexual orientation, including California, Oregon, Wisconsin, New York, Maine, Rhode Island, and New Jersey. Most other states are silent on the issue.

Joint adoption: Also known as “couples adoption,” joint adoption is “when two people petition to adopt a child together at the same time,” whether the couple is married, in a domestic partnership, or in a long-term relationship. As with stepparent adoption, all states are now required to recognize the validity of marriages regardless of whether they are same- or different-sex, but couples that are not married may face extra barriers.

Individual adoption: This type of adoption occurs when a single person adopts a child. It generally occurs when the individual is neither married nor in a domestic partnership.

How much information would you like to give and receive?

These three types of adoptions clarify the amount and type of information that is shared between the birth mother and the adoptive parent(s).

Open adoption: In open adoptions, a significant amount of information is exchanged, such as names, health history, and photos. Often, the birth parents also meet potential adoptive parents, and may arrange for future visitation rights. In open adoptions, the decision lies in the hands of the birth parents, which can either be an advantage if the birth parents do not discriminate, or a source of heartbreak if they do.

Semi-open adoption: Slightly less information is shared in these cases, and the information may go through a third party. It generally does not include future visitation.

Closed adoption: Though becoming uncommon, some families do still prefer that no information be shared. It may be difficult to arrange for closed adoptions, as it is much less popular.

Who would you like to arrange the adoption?

Independent, private agency, and public agency adoptions: In a nutshell, agency adoptions mean that the potential parent(s) utilize a private adoption organization that helps facilitate the adoption process. A public agency, in comparison, is an organization that is run by a government institution. Those that opt for an independent adoption use neither type of agency, and typically have the help of an attorney.

“Religious Freedom” discrimination

In some states, adoption centers with a religious mission may legally deny LGBT couples the chance to adopt. Currently, North Dakota, Michigan, and Virginia explicitly allow for this type of discrimination. In other states, this type of discrimination is less clear, apart from the aforementioned seven states that ban discrimination in adoption based on sexual orientation.

In closing, adoption by LGBT couples or individuals is a nuanced and delicate process. Though significant process has been made, we still have work to do until true equality is reached. Our attorneys are skilled at navigating the legal complexities of LGBT adoption, and will ensure that your family, and your future family, is well cared-for.

Photo by Shalev Cohen on Unsplash