ADOPTION BY GAY COUPLES
© 1996 National Legal Research Group, Inc.
Introduction: The Homosexual As a Fit and Proper Parent
It has been estimated that about three million homosexuals are also parents and that between eight and 10 million children are raised in homosexual households. Delaney, "Statutory Protection of the Other Mother: Legally Recapturing the Relationship Between the Nonbiological Lesbian Parent and Her Child," 43 Hastings L.J. 177, 178 n.6 (1991). (We use the word "homosexual" or "gay" to mean both male and female homosexuals. Some writers have noted a disjunction between the terms "gay" and "homosexual," the former referring to a lifestyle as well as an erotic preference, and the latter referring to erotic preference alone. See J. Boswell, Christianity, Social Tolerance, and Homosexuality 44 (1980). We imply no such distinction in this article, and use the terms interchangeably.)
The courts have long grappled with the question of whether a homosexual can be a fit and proper parent. Most often, the question arises in the context of custody hearings in divorce. See generally Annot., "Initial Award or Denial of Child Custody to a Homosexual or Lesbian Parent," 4 A.L.R.4th 1297 (1981 & Supp. 1995); 2 H. Clark, The Law of Domestic Relations in the United States 20.4 at 505-06 (2d ed. 1987); 1 J. Atkinson, Modern Child Custody Practice 4.41 at 290 (1986); Shiasta-Parveen Ali, "Homosexual Parenting: Child Custody and Adoption," 22 U.C. Davis L. Rev. 1009 (1989); Note, "Custody Denials to Parents in Same-Sex Relationships: An Equal Protection Analysis," 102 Harv. L. Rev. 617 (1989); R. Beargie, "Custody Determinations Involving the Homosexual Parent," 22 Fam. L.Q. 71 (Spring 1988). In these cases, the courts have taken one of three approaches: (1) there is an irrebuttable presumption that a parent's homosexuality establishes parental unfitness; (2) there is a rebuttable presumption that a parent's homosexuality is not in the best interests of the child; (3) a parent's homosexuality will not affect the custody determination unless there is a demonstrable showing of harm to the child. Slowly, the trend has been toward the third approach. See generallyMeyers, "Gay Custody and Adoption: An Unequal Application of the Law," 14 Whittier L. Rev. 839, 840-51 (1993).
The same justifications that curtailed a gay parent's rights in custody disputes also curtailed a gay person from adopting a child. See generally J. Evall, "Sexual Orientation and Adoptive Matching," 25 Fam. L.Q. 347 (Fall 1991). Indeed, two states, Florida and New Hampshire, have statutes that specifically prohibit the placement of children for adoption with gays. N.H. Rev. Stat. Ann. 170-B:4 (1990); Fla. Stat. Ann. 63.042(3) (West 1995). The New Hampshire statute was upheld in In re Opinion of the Justices, 129 N.H. 290, 530 A.2d 21 (1987), with the court giving short shrift to the constitutional challenge. The court applied a rational-basis analysis and stated that homosexuals do not constitute a suspect class, nor are they within the ambit of the middle-tier level of heightened scrutiny. Moreover, the New Hampshire justices claimed there is no fundamental right to adopt children. The Florida statute has not fared as well. In Cox v. Florida Department of Health & Rehabilitative Services, 656 So. 2d 902 (Fla. 1995), the court held that the record was insufficient to determine whether the statute which prohibited a gay man from adopting a child was constitutional as applied. The Florida Supreme Court remanded the matter back to the trial court to make a more complete record as to the constitutional issue of whether the statute violates the equal protection of gay parties. The court thus found a valid equal protection argument requiring remand.
Where there is no statute governing the issue, the states have generally taken the same series of approaches to gay adoption as to gay custody determinations: (1) there is an irrebuttable presumption that a person's homosexuality establishes parental unfitness, and the person cannot therefore adopt, e.g., In re Appeal in Pima County Juvenile Action B-10489, 151 Ariz. 335, 727 P.2d 830 (Ct. App. 1986) (court held that because homosexual conduct was proscribed by state law it would be anomalous to allow the state to create a parent on such a proscribed model (relying on Bowers v. Hardwick, 478 U.S. 186 (1986))); (2) there is a rebuttable presumption that a person's homosexuality is not in the best interests of the child; (3) a person's homosexuality will not affect the custody determination unless there is a demonstrable showing of harm to the child. E.g., In re Adoption of Charles B., 50 Ohio St. 3d 88, 552 N.E.2d 884 (1990).
Adoption by Gay Couples
Although the courts have considered for some time now whether a person's homosexuality will render him or her unfit as a parent, and thus unable to adopt a child, a recent spate of decisions has considered whether gay couplesmay adopt a child. These cases have arisen with increasing frequency as gay partners increasingly seek to solemnize and make permanent their relationship and commitment to each other. Indeed, the impetus to adopt may be the result of recently enacted city ordinances recognizing "domestic partnerships" between gays. See Bowman & Cornish, "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances," 93 Colum. L. Rev. 1164 (1992). For example, San Francisco, Berkeley, West Hollywood, Los Angeles, and Laguna Beach, California; Washington, D.C.; Takoma Park, Maryland; Ann Arbor, Michigan; Minneapolis, Minnesota; Ithica, New York; Seattle, Washington; and Madison, Wisconsin, all have domestic partnership ordinances that give legal status to aspects of homosexual relationships. Id. at 1188-89.
The cases in which gay and lesbian couples seek to adopt a child as a couple present two distinct factual scenarios. In the first situation, the gay partner of the natural parent who has custody of his or her own natural child wishes to adopt and become coparent of the child. This situation most often arises where lesbians have a longstanding relationship, and one of the women conceives through artificial insemination. The situation may also arise where a gay man has sole custody of his own child. The question posed by these fact patterns is whether the gay partner can adopt the child without cutting off the natural parent's rights, since the gay partner is not technically a stepparent. In the second situation, two gay partners seek to adopt a child related to neither person. The question posed by this fact pattern is whether unmarried couples may adopt a child.
The Gay "Stepparent" Adoption
One of the most recent appellate court cases to discuss whether gay partners may adopt as a couple a child of one of the partners is In re Jacob, 22 Fam. L. Rep. (BNA) 1003, 1995 WL 643833 (N.Y. Nov. 2, 1995). That case actually involved two consolidated appeals. In one case, from Putnam County, a lesbian couple, Patricia Irwin and Gail Messina, had been together for 19 years. In 1989, the couple decided that one of them, Patricia Irwin, would have a child through artificial insemination. They agreed that they would raise the child together. In 1990, Irwin gave birth to a baby girl, Dana. Ms. Messina filed for adoption, and the lower court rejected the petition. The New York Appellate Division affirmed. See In re Dana, ___ A.D.2d ___, 624 N.Y.S.2d 634 (1995).
In the second case, from Utica, Roseanne M.A. was the biological mother of Jacob. Roseanne separated from the baby's father prior to the baby's birth, and Roseanne was awarded sole custody of the child. In 1991, Roseanne began living with Stephen T.K., and in 1994 Stephen filed a petition to adopt Jacob. The baby's natural father consented to the adoption. See In re Jacob, ___ A.D.2d ___, 620 N.Y.S.2d 640 (1995).
The New York Court of Appeals framed the issue thus:
These appeals call upon us to decide if the unmarried partner of a child's biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, can become the child's second parent by means of adoption.In re Jacob, supra, 1995 WL 643833 at 1. The court held that the New York Adoption Act contemplated such an adoption. The policy underlying the adoption statute, that placement be made in the best interests of the child, would be served by allowing unmarried partners to adopt.
The policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child's parents to become the child's legal parents. The advantages which would result from such an adoption include social security and life insurance benefits in the event of a parent's death or disability, the right to sue for the wrongful death of a parent, the right to inherit under rule of intestacy and eligibility for coverage under both parents' health insurance policies. In addition, granting a second-parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of emergency and are under a legal obligation for the child's economic support. Even more important, however, is the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children's relationship with their parents, siblings and other relatives will continue should the coparents separate. Indeed, viewed from the children's perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and avoids the sort of disruptive visitation battle we faced [in another case.]Id. at 2-3. The court thus specifically noted that the decision was consistent with recent changes in the state Adoption Act that encourage the adoption of as many children as possible, regardless of the sexual orientation or marital status of the individuals. Consistent with the Adoption Act, unmarried persons who may adopt must include the partners of biological parents, and such adoptions will not serve to cut off the rights of the biological parents.
Prior to the decision of the New York Court of Appeals, there was no discernible trend in New York among the lower courts addressing the issue. Numerous decisions held that a gay partner could adopt a child without cutting off the parental rights of the natural parent, while numerous decisions went the other way. Compare In re Caitlin, ___ Misc. 2d ___, 622 N.Y.S.2d 835 (Fam. Ct. 1994) (mother's long-term lesbian partner may adopt mother's two children who were conceived by artificial insemination without causing termination of parental rights by operation of law); In re S.M.Y., ___ Misc. 2d ___, 620 N.Y.S.2d 897 (Fam. Ct. 1994) (stepparent exemption from automatic termination of parental rights of biological parents upon adoption would be interpreted to apply to all second-parent adoptions, allowing lesbian partner of mother to adopt child) and In re Evan, 153 Misc. 2d 844, 583 N.Y.S.2d 997 (Sur. Ct. 1992) (lesbian partner may adopt without cutting off rights of mother who conceived by artificial insemination) with In re Christine, 20 Fam. L. Rep. (BNA) 1434 (N.Y. Sur. Ct. June 6, 1994) (lesbian partner of child's mother cannot adopt child without causing the termination of the mother's parental rights) and In re Hope, 150 Misc. 2d 319, 571 N.Y.S.2d 182 (Fam. Ct. 1991) (no statutory authority exists for adoption by unmarried male partner of woman of woman's child). New York thus joins three other jurisdictions whose highest courts have held that the partner of a gay parent may adopt the parent's child without terminating the parent's rights: the District of Columbia, Massachusetts, and Vermont.
The District of Columbia recently addressed the issue in In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995). In that case, two homosexual males, Bruce and Mark, petitioned to adopt Hillary, who had previously been adopted by Bruce. There was no question that Bruce and Mark were suitable parents they both belonged to Dignity, a religious organization for gays and lesbians; they both had Masters Degrees and permanent, stable jobs; they owned their own home; they committed themselves to each other as a family to the extent legally possible; they committed to raising Hillary together as family, whether or not the petition for adoption was granted. The trial court ruled, however, that Bruce and Mark lacked standing to petition to adopt Hillary, because the Adoption Act permitted adoptions "by any person" or by "married couples." Since Bruce and Mark did not fit into either category, their petition had to be dismissed.
The appellate court reversed, holding that the judge should have opted for a liberal, rather than a strict, construction of the Act. Further, because the best interests of the child would be served by such an adoption, there is no reason to interpret the statute as barring such an adoption.
Significantly, the court held that its decision was equally applicable to couples who adopt sequentially, as did Mark and Bruce, or to couples who adopt concurrently without either first being a parent of the child. Thus, the holding in In re M.M.D. & B.H.M., supra, is equally applicable to that category of cases discussed below, i.e., adoption by gay partners. The decision further ends the conflict in the lower District of Columbia courts which had split on the question. Compare In re Adoption of Minor Child, 21 Fam. L. Rep. (BNA) 1332 (D.C. Super. Ct. May 4, 1995) (two women who have been in a committed lesbian relationship for over eight years could jointly petition to adopt a child who has lived with them for two years) and In re L.S. & V.L., 1991 WL 219598 (D.C. Super. Ct. Aug. 8, 1991) with In re Adoption of Minor T., 17 Fam. L. Rep. 1523 (D.C. Super. Ct. 1991) (gay couple could not adopt child without severing natural parent's rights). The Massachusetts Supreme Judicial Court took the same tack in Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993). In that case, two unmarried women, Susan and Helen, filed a petition to adopt as their child, Tammy, who was Susan's biological daughter. Tammy was conceived by artificial insemination.
There was no question that both women were excellent prospective parents they had lived together in a permanent relationship for 10 years in their own home; they were both physicians specializing in surgery; they were both on the faculty of Harvard Medical School. Since her birth, Tammy had been raised by both Susan and Helen in a loving environment, and had a warm and loving relationship with both women. Tammy regarded both women as her parents.
The appellate court concluded that there was nothing in the adoption statute that precluded a court from entering a judgment on a joint petition for adoption brought by two unmarried cohabitants. The Massachusetts court concluded that although the singular "a person" is used the court must construe the singular as extending to many persons. Further, since the best interests of the child is the polestar of all decisions under the Act, the court should allow unmarried cohabitants to adopt when it is in the best interests of the child.
Vermont reached the same conclusion in Adoptions of B.L.V.B. & E.L.V.B., 160 Vt. 368, 628 A.2d 1271 (1993), holding that a woman could legally adopt her lesbian partner's children while leaving intact the natural mother's parental rights.
Intermediate appellate courts in other states have reached the same conclusion. For example, in In re Petition of K.M. & D.M. to Adopt Olivia M., ___ Ill. App. 3d ___, 653 N.E.2d 888 (1995), K.M. and D.M., an unmarried lesbian couple, filed a joint petition to adopt three-year-old Olivia M., the natural daughter of K.M. Olivia M. was conceived by artificial insemination. The trial court held that K.M. and D.M. lacked standing to file the petition to adopt. The court also considered, in the same opinion, the case of K.L. and M.M. In that case, K.L. and M.M., another unmarried lesbian couple, filed a joint petition to adopt Michael M. and David M. David was conceived by artificial insemination and Michael was adopted. The trial court ruled in that case as well that the petitioners lacked standing.
The appellate court reversed. The court took pains to point out that the case was not about whether homosexuals could adopt children. The appellate court's prior ruling in In re Marriage of Pleasant, 256 Ill. App. 3d 742, 628 N.E.2d 633 (1993), made it clear that nothing in the Adoption Act suggests that sexual orientation is a bar to adoption. Rather, the question was whether an unmarried couple may adopt a child without terminating the natural parent's rights. The court noted that the Act provides that two classes of person may adopt: (1) "a reputable person of legal age and of either sex," and (2) married couples. "A reputable person," the court concluded, includes couples, because the Act expressly provides for plural construction to be given to singular terms. This interpretation was mandated by the rule that the Act was to be given liberal, i.e., broad, construction rather than narrow construction. Finally, because the Act mandates that the best interests and welfare of the person to be adopted shall be of paramount importance, the liberal construction of the Act served that statutory prescription. Accord In re Petition of E.S., 1994 WL 157949 (Cook County, Ill., Cir. Ct. Mar. 14, 1994).
The same result was reached in New Jersey in In re Adoption of Child by J.M.G., 267 N.J. Super. 622, 632 A.2d 550 (Ch. Div. 1993) (a woman may legally adopt her lesbian partner's daughter who was conceived through artificial insemination during long-term relationship), and In re Adoption of H.N.R., 22 Fam. L. Rep. (BNA) 1028 (N.J. Super. Ct., App. Div., Oct. 10, 1995) (a mother's lesbian partner should be allowed to adopt twins conceived by the mother via artificial insemination where the adoption is in the children's best interests; stepparent exception should not be read literally and restrictively), and in Colorado in In re K.H. & R.Z., 21 Fam. L. Rep. (BNA) 1535 (Colo. Dist. Ct. July 26, 1995) (unreported).
In Nancy S. v. Michele G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1991), California hinted that it would agree with the above-cited cases if the situation were presented. In that case, the natural mother of a child commenced an action for a declaration that the lesbian partner was not the parent of her child, and that the natural mother was entitled to sole legal and physical custody. The partner had claimed that through her long-term relationship with the child she had become the child's psychological parent, entitling her to seek custody and visitation. The court disagreed and held that she did not have the right to visitation or custody. Significantly, the court noted that the tragic situation presented by the absence of a legal formalization of the partner's relationship with the children could have been avoided by adoption. The court held that it saw nothing in the adoption code provisions that would preclude a child from being jointly adopted by someone of the same sex as the natural parent.
Unreported trial court decisions have also reached the same result. In re Adoption of Minor Child, No. 1Ju-86-73 P/A (Juneau, Alaska, Super. Ct. 1987); In re Adoption of A.O.I., No. 154-85-25 P/A (Juneau, Alaska, Super. Ct. 1985); In re Adoption Petition of Nancy M., No. 18744 (San Francisco, Cal., Super. Ct. 1990); In re Adoption Petition of Carol, No. 18573 (San Francisco, Cal., Super. Ct. 1989); In re Adoption Petition of Achtenberg, No. AD 18490 (San Francisco, Cal., Super. Ct. 1989); In re Adoption of Morgan by Kathleen, No. D8503-6130 (Multnomah, Or., Cir. Ct. 1985); In re Child No. 1 & Child No. 2, No. 89-50067-7 (Thurston, Wash., Super. Ct. 1989); In re E.B.G., No. 87-9-00137-5 (Thurston, Wash., Super. Ct. 1989); In re Adoption of Child A & Child B, No. 88-5-00088-9 (Spokane, Wash., Super. Ct. 1988).
One state has gone against the grain. In In re Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994), Annette G. filed a petition to adopt Angel Lace M., the daughter of Georgina G., Annette's lesbian partner. The trial court determined that Annette was not competent to adopt Angel because she was not the husband or wife of the parent of the minor, Georgina. While she was an unmarried adult, adoption under this provision would cut off Georgina's parental rights, which Georgina had not consented to. Therefore, Annette could not adopt Angel, because Angel was not eligible for adoption.
Adoption by Gay Partners
Thus far we have discussed whether the gay partner of the parent of a child may adopt the child without cutting off the parent's rights. We will now discuss whether a gay couple can adopt a child that is not related to either of the parties.
As noted above, in In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. 1995), the court held that its decision applied equally to gay parents who adopt sequentially and to gay parents who adopt concurrently. Thus, the District of Columbia has explicitly recognized the rights of unmarried gay couples to adopt a child where it is in the best interests of the child. It is also likely that the reasoning adopted by New York in In re Jacob, 1995 WL 643833 (N.Y. Nov. 2, 1995), will be applied to allow gay partners to adopt a child related to neither partner.
Trial courts have also allowed gay partners to adopt a child unrelated to either partner. See Adoption of E.O.G. & A.S.G., 14 Fiduciary 2d 125 (Pa. C.P. 1993); In re Matter of Adoption of Petition of Anne & Rebecca, No. 17350 (Cal. Super. Ct. 1986).
More and more jurisdictions have recognized gay partnerships in their laws. See Annot., "Adoption of Child by Same-Sex Partners," 27 A.L.R.5th 54 (1995). With the increasing recognition that gay partnerships can be stable and permanent should come the recognition that the children of gays are entitled to reap the natural benefits of that permanent relationship. Allowing gay couples to adopt children will allow the children to take advantage of having two parents, not one. There is no reason a child should irrevocably be deprived of the benefits and entitlements of having as his or her legal parents the two individuals who have already assumed the role of parents in the child's life.
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