Deciding to start a family is an exciting and significant decision for many couples; however, same-sex couples face unique legal hurdles with respect to adoption once this decision is made.
There are several forms of adoption available to LGBT parents. The first is individual adoption, where an unmarried person adopts a child who has been placed for adoption by his biological parent. This can be executed through a child-welfare agency, public agency, private state-authorized agency or private agreements between parties. The more frequent forms of adoption include second-parent adoption and simultaneous adoption. The former allows a same-sex partner to adopt his/her partner’s biological or adoptive child without affecting the first legal parent’s rights. Simultaneous adoption is where a couple jointly adopts a child to which they have no biological link. It is important to note that states that recognize civil union or domestic partnerships may grant stepparent adoptions similar to that used for married couples. The following states explicitly offer both stepparent and second-parent adoption: California, Colorado, Connecticut, District of Columbia, Illinois, Indiana, Iowa, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Vermont and Washington.
A few states, including Florida, Mississippi, Nebraska, Oklahoma, Utah and Virginia, have enacted laws that specifically prohibit gay individuals or couples from adopting. This can cause grave issues because the existence of a legal parental relationship is important to ensure the safety and stability of families. Without one, a child has no claim for financial support, inheritance rights, Social Security benefits or health insurance. Worse yet, a child may be denied essential medical care in an event of emergency if the legal parent is harmed or unavailable. If you’re in a state where adoption is not an option, it is essential to execute a will with a nomination of guardianship clause, create a co-parenting agreement and sign a form authorizing medical consent.
New Jersey has been progressive in furthering LGBT-couples rights to adoption. For example, pursuant to N.J.S.A. 9:3-43, any person may adopt and second-parent adoptions are permitted as well as simultaneous adoptions. While the trial court in “In Re Adoption of Two Children by HNR” did not permit the same-sex partner to adopt the children without affecting the mother’s rights, the Appellate Division reversed the dismissal and found the adoption served the best interests of the child and granted the adoption while preserving mother’s rights.
The case “Matter of Adoption of a Child by J.M.G.” dealt with unmarried persons attempting to adopt. Generally, adoption terminates the legal parent’s rights. However, the court found the stepparent adoption could be applied as an exception to couples that were not married and therefore would allow the legal parent to maintain his/her rights. The court held that to discontinue the legal parent’s rights would fly against the child’s best interest and, ultimately, public policy.
It is still important to establish legal rights to your children prior to the dissolution of a relationship. In “A.F. v. D.L.P.,” the court found that while the plaintiff-partner took care of the child while her partner worked and she even made monetary contributions for child care, it wasn’t enough to establish partial custody or even visitation rights because the plaintiff-partner was not recognized as a “psychological parent” to the child, but rather more like a nanny.
Similar to New Jersey, Pennsylvania permits second-parent adoptions by same-sex couples. Although second-parent adoption is similar to and arguably indistinguishable from stepparent adoptions, the courts of both states have ruled that these two methods are different because the adopting partner is not in fact a “spouse” under the statutes. Second-parent adoption ensures that the children of a same-sex couple will be eligible to receive the health-insurance benefits from the other parent, inheritance rights and the right to child support from the other parent, among other rights.
It is important to keep in mind that whether in New Jersey and Pennsylvania, the cost of adoptions can vary widely. Private-agency adoption fees can be as expensive as $40,000 with state-agency adoptions costing much less. A number of factors affect cost, including the type of adoption, the type of placement agency or facilitator and the child’s age and circumstances. For same-sex couples where both partners are seeking to adopt the child, New Jersey is much less costly because it is one of only two states (along with Maine) that allow simultaneous adoption by same-sex couples. This means that both partners can apply to adopt the child together, whereas in Pennsylvania only one partner can adopt and then the other partner must go through a second-parent adoption. Although expensive, there are resources available to help defray the costs of adoption. For example, federal tax credits and exclusions, state tax credits, reimbursement for adoption costs, federal and state subsidies, employer benefits, adoption loans and grants and subsidies and reimbursements for children with special needs are just a few.
After understanding the legal landscape of adoption in New Jersey and Pennsylvania, the next crucial steps involve selecting an agency and talking about adoption with friends and family. Either your attorney or the agency you’re working with will explain the in-depth procedures including petitioning for adoption, criminal background checks, the home study, the submission of support letters from family and neighbors for the adoption and, finally, a hearing with a judge.
Many states, such as Pennsylvania and New Jersey and, more importantly, courts, have realized that parents’ sexual orientation is fundamentally irrelevant to their parenting skills. However, if you’re considering adoption, until the legal landscape of how adoption laws are applied to LGBT couples becomes more uniform and clear, it is important to take proactive steps and to be well-informed.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in both Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains a blog www.phillygaylawyer.com. Send Angela your legal questions at [email protected].