Same-Sex Parenting: When Adoption Isn't Possible
Learn about protections for same-sex parents who are raising a child without the benefits of legal adoption.
Some lesbian and gay couples are fortunate enough to live in a state where same-sex partners can jointly adopt a child -- or where one partner can adopt the biological child of the other through a second-parent, stepparent, or domestic partner adoption. These procedures ensure that both partners are considered legal parents of their child.
For many same-sex couples, however, joint or second-parent adoptions are not available. (A few states -- Florida, Mississippi and Utah -- absolutely bar same-sex partners from adopting. In many other states, the outcome is uncertain; see "The Lucky Few," below.) This means that only one member of a same-sex couple is usually recognized as a legal parent and the other partner has few, if any, legal rights with regard to the child. If you and your partner are in this situation, it's smart to know the laws that affect you -- and to make a parenting agreement. Doing so now may prevent considerable legal and emotional grief down the road.
The status of a second parent (the non-legal, non-biological parent) is most likely to become an issue if a same-sex couple splits up. When heterosexual parents separate and can't agree on reasonable custody, support, and visitation terms, courts will step in to resolve the troubles. But gay and lesbian couples don't usually have these built-in protections. In fact, many courts say that a second parent has no rights regarding the child of a partner, even if she or he has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love. At worst, the second parent may be treated by the courts as a stranger, giving the legal parent an absolute right to deny all future contact between his or her ex and the child. Thankfully, a handful of courts take the opposite view, awarding visitation to a non-legal parent after finding him or her to be such a critical part of the child's life that it would be wrong not to grant at least some rights to stay connected with the child. These courts may call the second parents "de facto parents" or "parents in reality," meaning that they have lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal one.Massachusetts, New Jersey, and Rhode Island: Three States That Favor Family Ties
The Supreme Courts of both New Jersey and Massachusetts have granted "de facto" parental status to ex-partners, permitting them to obtain visitation with the children that they helped to raise. (ENO v. LMM, 711 N.E.2d 886 (1999) and VC v. MJB, 163 N.J. 200 (2000).) This means that all lower courts in those two states must consider ex-partners' petitions for visitation.
In both states, the following factors characterized the relationship between the child and the non-legal parent:
- the length of the relationship between the adults, and whether they and the child lived together
- the intentions of both partners to parent together and what steps, if any, were taken to ensure that joint parenting would take place, and
- any co-parenting agreements or other documents regarding the child that had both partners listed as parents, such as birth announcements.
In September 2000, Rhode Island joined the ranks of these more-flexible states when its Supreme Court ruled in favor of visitation in Rubano v. DiCenzo, 759 A.2d 959.
Of course, now that same-sex marriage is legal in Massachusetts, same-sex parents will not need to rely on court opinions to validate their parent-child relationships. Like heterosexual married couples, both partners will be considered legal parents of the child from the time of the child’s birth.
As mentioned, not all courts are willing to consider the plight of non-legal parents. Courts in California, Florida, Illinois, and New York have denied ex-partners visitation without taking into account any aspect of their relationship with the children they helped raise. In short, they have found the ex-partner to be the equivalent of a legal stranger and have given priority to the legal parent's wishes to terminate the relationship for both her and the child.
If you've committed to joint parenting but can't adopt (or choose not to), the first thing you should do is write up a parenting agreement. The agreement should specify that although only one of you is the legal parent, you both consider yourselves parents of your child, with all the rights and responsibilities that come with parenting. Include language that clearly states your intentions to continue co-parenting even if you end your relationship. It's also wise to go further and cover financial issues, as well as the legal parent's intention to provide the other parent with generous visitation, access to school and social events, and so forth.
Then, if the unfortunate does occur and you split up, honor your agreement. Since you've both agreed to co-parent without the legal advantages and protections of adoption, it's up to both of you to put your differences aside and make your child's needs a priority. If you can't resolve the issues amicably, you must take your chances with your state's court system. The outcome of such a battle is anything but certain.