Will my sexual orientation prevent me from adopting a child?

By: LawInfo

Published: 02/2009

While adoption law can seem complicated for any parents looking to adopt, it becomes even more complex if the prospective adoptive parents are a same-sex couple, or if the prospective adoptive parent is both single and gay. Each state has different laws regarding adoption by same-sex couples and gay individuals; for instance, in some states, the law does not allow unmarried persons to adopt, which automatically rules out same-sex couples and gay individuals in many states, whereas in other states, there may be a specific law that prohibits same-sex couples from adopting. Therefore, if you are in a same-sex relationship, or if you are single, gay, and considering adoption, be sure to educate yourself about what rights you have to adopt in your state. Attorneys in your area who specialize in adoption law generally should be able to give you guidance about your specific state laws and what adoption avenues are open – and not open – to you as a same-sex couple or gay individual.

The good news is that a few states, such as Colorado, clearly permit same-sex couples and/or gay individuals to adopt children, and in a few other states, whether such adoptions are permitted is still unclear. Unfortunately, this is not the case in most states.

Until recently, Florida was the only state with a law that outright banned all adoptions by homosexuals, whether single or a part of a couple. Due in large part to the fact that Florida nonetheless does permit gay individuals and couples to become foster parents, a state court judge recently ruled Florida’s 30-year ban on such adoptions unconstitutional, and that case is still winding its way through the appeals process.

One of the most common scenarios for same-sex couples who wish to adopt a child is called “second parent” or “co-parent” adoption. This may be the easiest route for a same-sex couple to take when a state does not permit adoption by an unmarried or same-sex couple; at least 21 states have permitted second parent adoptions. In this situation, one of the two people that make up the same-sex couple go through the legal process in order adopt the child as his or her own. After that adoption is complete, the other person then files to adopt the child as well, but without terminating the first person’s parental rights. In this respect, second parent adoptions are similar to stepparent adoptions; the stepparent becomes the legal parent of the child, but there is no legal effect on the already existing parent relationship between the child and his mother or father. In this manner, a same-sex couple can achieve the goal of having both persons become a legally adoptive parent of the child.

While there are other arrangements through which a gay individual or a same-sex couple can parent a child, none of these arrangements have the binding effects of an adoption. For example, many states permit same-sex couples and gay individuals to become foster parents, which can lead to very long-term parenting relationships. Same-sex couples may also be able to take on guardianship of a child, which amounts to a legal custody arrangement. Both guardianships and foster care placements, however, are always subject to termination, thus leaving adoption as the only permanent means for a gay individual or same-sex couple to parent a child.