LGBT adoption in the United States

Laws regarding LGBT adoption in the United States vary, as adoption in the United States is regulated and licensed at the state level. In 2006, adoption by gay couples was illegal in Nebraska, Florida, Michigan, Oklahoma, Mississippi, and Utah.[1] Adoption by single LGBT individuals is now legal in every jurisdiction in the United States, while adoption by same-sex couples is legal in 49 states with the exception of Mississippi, and legal in the District of Columbia as well as of June 26, 2015.[2]

LGBT Parenting

On April 6, 1999 the American Civil Liberties Union produced an Overview of Lesbian and Gay Parenting, Adoption and Foster Care. Within this document, the organization addressed research results on Lesbian and Gay Parenting, some key findings include:

Many families in which a child would have parents who identified as lesbian or gay and then grew up in a same-sex relationship were those brought about from a previous heterosexual relationship.[4] As such, many prior legal disputes were over the custody of a child in cases of a divorce. Biases were then seen against the parent in a now same-sex relationship which caused courts to not favour them in giving custody and visitation rights. The sexual preference of the LGBT parent was viewed as impacting the upbringing of the child and not the actual ability to provide for the child's needs.[4] Following the introduction of In vitro fertilisation lesbian couples were able to rear children of their own who weren't born from heterosexual relationships and the child being the biological offspring of one of the partners.[4] Sprouting from this is the development of the issues of co-parent adoption and, in cases of separation, child custody in some lesbian relationships.

For male same-sex couples, becoming a parent can be more costly as, if there is a desire to have a biolgoical child of one of the partners, the only method is surrogacy.[5] As such, adoption serves as a more cost effective alternative.

Population

More recently, the amount of same-sex couples adopting in the 21st century has tripled since the 1990s. U.S. Census data from 2010 revealed an emerging trend in American adoptions; despite considerable prejudice in some quarters and legal barriers in states; same-sex couples are adopting children in growing numbers.[6] According to these figures, of the 115,064 same-sex households with children, about 16 percent or 18,400 were bringing up one or more adopted children.[6]

According to the Williams Institute, as of 2009 "an estimated 20,000 same-sex couples are raising nearly 30,000 adopted children."[7] As of 2011, approximately two million children in the United States were being raised by LGBT parents and unable to establish a legal relationship with both their LGBT parents.[8] The 2010 U.S. Census reported that same gender couples are raising approximately 115,000 children, 18 years and younger and are living in essentially all counties of the United States.[9]

Professional assessments

Main article: LGBT parenting

A consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.[10] The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.[11] Based on the robust nature of the evidence available in the field, the Third District Court of Appeal of the State of Florida was satisfied in 2010 that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.[12] The most important factors in maintaining the welfare of a child is more dependent on the socioeconomic status and not as dependent on the gender and sexuality of the parents. Issues are brought about from uncontrolled factors such as discrimination or the inability of parents to get married.[13]

A common fear of many persons who oppose the rearing of children by a homosexual couple will result in the child becoming homosexual themselves.[14] However, this is not the case as when comparing children from heterosexual parents to those raised with same-sex parents there is no increase in the number of children who identify as homosexual.[14] However there are differences seen as children from same-sex relationships tend to not conform to standard gender roles.[14] Which can be another argument brought about by opponents of same-sex adoption.

In a study done by Goldberg, Kinkler, Richardson and Downing, the effects of Lesbian, Gay, and Heterosexual Couples in Open Adoptions were examined through a qualitative study. Because little research has been focused on the effects of gender and sexual orientation in open adoption relationships. Data from 90 individuals, (30 women in 15 lesbian relationships; 30 men in 15 gay relationships, and 15 women and 15 men in heterosexual relationships were analyzed). All couples were adopting their first child, and the parents were all first time parents. This study was done within the borders of the United States. Participants filled out a questionnaire, and a telephone interview within the first 3–4 months of receiving a child. All participants were between the ages of 27 and 52 (average 37.7), and 90% Caucasian. The results were qualitative in nature, relying on truthfulness of the participants' answers. The results emphasized that gay and lesbian couples emphasized the philosophy of openness and it relates to their own desire to pursue adoption without hiding their sexual orientation. The birth mother was the consistent member of the birth family that kept in touch with the adoptive family. The birth mother was a driving force shaping open adoption relationships. One of the downsides to this study is that there was no long term interview or follow-up as the child progressed in an open adoption. It does show that there is no great apprehension from the birth family to the adoptive family because of sexual orientation.[15]

Public opinion

A 2007 poll by CNN and Opinion Research Corp. found that 57% of respondents felt same-sex couples should have the right to adopt and 40% that they should not.[16] More recently, a Gallup poll from May 2014 found 63% of respondents believed same-sex couples should have the legal right to adopt a child.[17]

From 1994 to 2012, seven national polling organizations asked certain representative sections of Americans their opinions regarding the legalization of same-sex adoption, with the main question being “Do you think there should or should not be adoption rights for gays and lesbians so they can legally adopt children?” Survey results from 1994 to 2012 indicate an increase in support. Of those surveyed in 1994, only one in four (28 percent) favored adoption, compared with more than five in 10 in 2012. From 1994 to 1999, only one in three favored adoption; from 2002 to 2008, support increased to four in 10. From 2009 to 2012, a full majority (52 percent to 61 percent) approved of the legalization of same-gender adoption.[18] It was shown that younger people expressed more support than people over 65.[18] It was also found that 85% of the Democrats asked were in support of same-sex adoption, while only 23% of the Republicans asked were in support of it.[18]

Politics

On July 29, 1999, U.S. Representative Steve Largent introduced amendment 356 (H.Amdt. 356) to the District of Columbia Appropriations Act, 2000 (H.R. 2587) that would have banned joint adoption between individuals who are not related by blood or marriage in Washington, D.C. The amendment failed with 213 votes in favor and 215 opposed.

In 2004, Jeb Bush, the Governor of Florida, was quoted saying "[I]t is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored both by a father and a mother."[19]

On May 10, 2012, Republican presidential candidate Mitt Romney told an interviewer: "And if two people of the same gender want to live together, want to have a loving relationship, or even to adopt a child -- in my state individuals of the same sex were able to adopt children. In my view, that's something that people have a right to do." Asked the next day to reconcile that with his opposition to same-sex marriage, he said: "Well actually I think all states but one allow gay adoption, so that's a position which has been decided by most of the state legislators, including the one in my state some time ago. So I simply acknowledge the fact that gay adoption is legal in all states but one."[20]

Currently, there are legal appeals in a number of states to allow for co-parent adoption, commonly known as second parent adoption, whereby one parent can adopt the child of the biological child of their same sex partner, without voiding their partner of parental guardianship over the child.[21] This allows the child to be recognised as having two legal parents in cases where the couple is not in a relationship recognised by the state.[21]

Legal status

Law on same-sex adoption

On May 16, 2013, the Every Child Deserves a Family act was introduced to congress. This act states that any organisation that deals with the foster and adoptive care of children and has some form of funding from the Federal government shall not discriminate against or refuse a couple from adopting their child if they are in a same-sex relationship or if either identifies as LGBT.[22] However, as this only applies to centres that are federally funded, private institutions are still able to refuse same-sex couples from adopting.

US States' laws on adoption by same-sex couples[23]
State LGBT individual may petition to adopt Same-sex couple may jointly petition Same-sex partner may petition to adopt partner's child
Alabama
Alaska
American Samoa
Arizona
Arkansas
California
Colorado[24]
Connecticut
Delaware[25]
District of Columbia
Florida
Georgia
Guam
Hawaii[26]
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky[27]
Louisiana
Maine
Maryland
Massachusetts [28] [28] [28]
Michigan
Minnesota
Mississippi
Missouri
Montana [29]
Nebraska[30]
Nevada
New Hampshire [31] [31]
New Jersey
New Mexico[32]
New York [33] [33] [33]
North Carolina[34]
North Dakota
Northern Marianas Islands
Ohio[35]
Oklahoma[36]
Oregon
Pennsylvania[37]
Puerto Rico
Rhode Island[38] [38] [38] [38]
South Carolina
South Dakota
Tennessee
Texas
Utah[39]
Vermont
Virginia
Virgin Islands
Washington
West Virginia
Wisconsin
Wyoming

Cases

Alabama

On October 12, 2012, a unanimous Alabama Court of Civil Appeals turned down the request of a woman to adopt her same-sex spouse's child. The women had been married in California. The court held that Alabama law did not recognize the women as spouses.[40]

In Alabama, on September 18, 2015, the Supreme Court of Alabama reversed lower courts that recognized an adoption judgment granted to a same-sex couple over their three children in 2007 by the Superior Court of Fulton County, Georgia. The court ruled that the Georgia state court misapplied Georgia state law in granting the adoption. In the case of V.L. v. E.L.. E.L., biological mother of the three children, who sought to reverse an order recognizing the adoption decree, argued the Georgia decree was void based upon that court lacking subject matter jurisdiction. The Supreme Court of Alabama agreed, voiding the decree's recognition in-state and nullifying the parental rights of V.L. On November 16, V.L. petitioned the United States Supreme Court to stay the order stripping her of her parental rights and to allow her to see her children during the appeals process. On December 14, the Supreme Court granted her request for a stay of the ruling pending their disposition of V.L.'s petition for a writ of certiorari. This is the first adoption case that has made it to the Supreme Court since Obergefell was decided.[41]

Arkansas

On November 4, 2008, Arkansas voters approved Act 1, a measure to ban anyone "co-habitating outside of a valid marriage" from being foster parents or adopting children. Although the law could apply to heterosexual couples, it was believed to have been written to target gay couples due to the fact that same-sex marriage is prohibited in that state, thereby making an adoption impossible.[42] Single gay men and lesbians were still allowed to adopt in Arkansas. The law was overturned on April 16, 2010 by state judge Chris Piazza.[43] The Arkansas Supreme Court in Arkansas Department of Human Services v. Cole upheld the lower court's decision on April 7, 2011.[44]

In Arkansas, state Circuit Judge Tim Fox of Pulaski County ruled on December 1, 2015, that a state law restricting parental identification on birth certificates to heterosexual couples was unconstitutional. His ruling initially applied only to the three couples who originally sued in this case, Pavan v. Smith. Two days later, he broadened the ruling to apply statewide. On December 10, 2015, the Supreme Court of Arkansas stayed the statewide applicability, but allowed the three plaintiff couples to receive their amended certificates.[45]

Florida

In Florida, a 1977 law prohibited adoption by homosexuals following the anti-gay Save Our Children campaign led by Anita Bryant. In November 2008, a state circuit court struck down the law in In re: Gill, a case involving a gay male couple raising two foster children placed with them in 2004 by state child welfare workers.[46] On appeal, on September 22, 2010, Florida's Third District Court of Appeals unanimously upheld the decision of the lower court. The state did not appeal.[47] The 1977 law that banned homosexuals from adoption was repealed on July 1, 2015.

In Florida, a case is pending before federal District Judge Robert Hinkle of the United States District Court for the Northern District of Florida. The Florida Department of Health refuses to issue a birth certificate recognizing both partners in a same-sex relationship. The plaintiffs in the case have asked Judge Hinkle to declare this policy unconstitutional. He set a deadline of January 6, 2016 for the Department of Health to reply to plaintiffs' motion for summary judgment. Ironically, this is one year after his ruling striking down the state's same-sex marriage ban came into effect.[48]

Idaho

In 2013, a lesbian couple, married in California, but now living in Idaho, petitioned for second-parent adoption. A state magistrate denied the petition on the grounds that Idaho did not recognize their marriage. On appeal, the Idaho Supreme Court unanimously reversed the magistrate's ruling because Idaho has no specific statutory ban on unmarried second-parent adoption.[49]

Indiana

In Indiana, there are two cases pending in the United States District Court for the Southern District of Indiana, one filed in February 2015, and one in December 2015, against a policy identical to Florida's. The February case deals with issues more specific to the ruling by the Seventh Circuit Court of Appeals in the case Wolf v. Walker due to the fact Obergefell had not yet been decided. The December case cites Obergefell as reason for ordering the state to list both parents in a same-sex relationship on birth certificates. No action has been made in either case.[50]

Kansas

In November 2012, the Kansas Court of Appeals ruled in the case In the Matter of the Adoption of I. M. that a single person who is not a biological parent of a child cannot petition to adopt that child without terminating the other parent's parental rights. Since Kansas does not recognize same-sex marriages, this ruling effectively prevents same-sex couples from second-parent adoption in Kansas.[51] However, the Kansas Supreme Court ruled on February 22, 2013, in Frazier v. Goudschaal that a partner of a biological parent is entitled to parental rights.[52]

Michigan

In December 2012, the Michigan Court of Appeals ruled that the state's adoption code permits second parent adoptions by same-sex couples.[53]

Two Michigan lesbians, who are raising three children adopted by only one of them, filed a lawsuit in federal court in January 2012 seeking to have the state's ban on adoption by same-sex couples overturned.[54] and in September amended that suit to challenge the state's ban on same-sex marriage as well.[55]

On June 26, 2015, the Supreme Court of the United States ultimately ruled in their favor in Obergefell v. Hodges.

Mississippi

33% of Mississippi's households headed by same-sex couples include a child, the highest such percentage in the nation.[56] Nevertheless, Mississippi's Domestic Relations Code states, "Adoption by couples of the same gender is prohibited."[57] A lawsuit, Campaign for Southern Equality v. Mississippi Department of Human Services, was filed in August 2015 by four Mississippi same-sex couples seeking to overturn this law.[58] The plaintiffs in that case are represented by Roberta Kaplan, who successfully argued United States v. Windsor before the US Supreme Court. Mississippi is the only U.S. state to not have legal joint adoption rights for LGBT couples; the only other jurisdictions under US sovereignty where this is the case are American Samoa and some Native American tribal nations.[59]

In Mississippi, a state law passed in 2000 explicitly prohibits same-sex couples from joint adoption. After Obergefell, Mississippi has specifically stated the ban is still in effect. On August 12, 2015, the Southern Poverty Law Center joined by four same-sex couples raising children filed suit in the United States District Court for the Southern District of Mississippi seeking to declare the statute unconstitutional.[60]

Nebraska

Three same-sex couples filed a lawsuit against the state on August 27, 2013, seeking the right to serve as foster and adoptive parents. It claimed that the state's policy against allowing two unrelated adults to adopt has been consistently enforced only against same-sex couples.[61]

New York

An October 2012 court ruling in a custody dispute between two women in a same-sex relationship awarded custody to the adoptive parent rather than the biological mother.[62]

Wisconsin

In Wisconsin, the state has allowed both parents to be on the birth certificate, but refuses to change the wordage from "father and mother" to a gender-neutral "parent 1 and parent 2". In another case, a couple was outright rejected in their request. A federal lawsuit has been filed challenging this refusal.[63] There is also a state lawsuit, Torres v. Rhoades, challenging the birth certificate wordage. On November 4, a judge dismissed Torres because the couple initiated the case as an adoption, but the judge ruled they didn't properly attack the constitutionality of the statutes that used the term "father and mother" or "husband and wife". On November 17, the Second District Court of Appeal in Wisconsin agreed with the lower court. The couple could now appeal the case to the Supreme Court of Wisconsin or they could go back to the trial court with a case challenging the constitutionality of the statutes that require the terms "father and mother".

References

  1. ↑ Courtney, & Flynn, F. I. (2015). LGBT adoption overview. Salem Press Encyclopedia,
  2. ↑ Montero, D. M. (2014). America's Progress in Achieving the Legalization of Same-Gender Adoption: Analysis of Public Opinion, 1994 to 2012. Social Work, 59(4), 321-328 8p.
  3. ↑ Hunt, Albert R. (2003). The Family: Opposing Viewpoints. San Diego: Greenhaven Press. p. 141.
  4. 1 2 3 Ball, Carlos (2012). The Right to Be Parents : LGBT Families and the Transformation of Parenthood. New York: New York University Press. ISBN 9780814739310.
  5. ↑ Goldberg, Abbie; Moyer, April (February 2014). "Adoption: Lesbian and Gay Adoptive Parents". Encyclopedia of Social Work. doi:10.1093/acrefore/9780199975839.013.1132.
  6. 1 2 McCaffrey, Paul (2013). Families: Traditional and New Structures. Massachusetts: Salem Press. p. 106.
  7. ↑ "Supreme Court adoption ruling puts in doubt about 90,000 adoptions by unmarried couples". Windy City Times. Retrieved July 24, 2012.
  8. ↑ Bernard, Tara Siegel (July 20, 2012). "A Family With Two Moms, Except in the Eyes of the Law". New York Times. Retrieved July 24, 2012.
  9. ↑ Perrin, E. C. (2013, March 21). AAP policy: No relationship between parents’ sexual orientation and children’s well-being. American Academy of Pediatrics News. Retrieved from http://aapnews.aappublications.org/ content/early/2013/03/21/aapnews.20130321-1.full. pdf+html
  10. ↑ United States District Court District of Massachusetts July 8, 2010
  11. ↑ In the United States District Court for the Northern District of California - August 4, 2010
  12. ↑ Third District Court of Appeal State of Florida - September 22, 2010 (PDF)
  13. ↑ Perrin, Ellen (March 2013). "Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian" (PDF). Pediatrics. PMID 23519940. Retrieved 22 November 2015.
  14. 1 2 3 Stacey, Judith; Biblarz, Timothy (April 2001). "(How) Does the Sexual Orientation of Parents Matter?". American Sociological Review 66: 159–183.
  15. ↑ Goldberg, Abbie; Kinkler, Lori A; Richardson, Hannah, B; & Downing, Jordan B. (April 2011). "Lesbian, Gay, and Heterosexual Couples in Open Adoption Arrangements: A Qualitative Study". Journal of Marriage and Family. doi:10.1111/j.1741-3737.2010.00821.x.
  16. ↑ "McCain blasted for gay adoption opposition". USA Today. July 15, 2008. Retrieved August 20, 2013.
  17. ↑ "Gay and Lesbian Rights". Gallup. Retrieved August 22, 2014.
  18. 1 2 3 Montero, Darrel (October 2014). "America's Progress in Achieving the Legalization of Same-Gender Adoption: Analysis of Public Opinion, 1994 to 2012.". Social Work, Volume 59.
  19. ↑ "Jeb Bush's War on Gay Adoption." Daily Beast 22 May 2015. Opposing Viewpoints in Context. Web. 8 Dec. 2015.
  20. ↑ Shelley, Matthew (May 11, 2012). "Romney backs away from gay adoptions". CBS News. Retrieved July 24, 2012.
  21. 1 2 "Adoption by LGBT Parents" (PDF). National Center for Lesbian Rights. June 2015. Retrieved 23 November 2015.
  22. ↑ John, Lewis, (2013-05-16). "H.R.2028 - 113th Congress (2013-2014): Every Child Deserves a Family Act". www.congress.gov. Retrieved 2015-12-09.
  23. ↑ "Joint Adoption Laws". FEC. Retrieved December 31, 2015.
  24. ↑ Colorado Adoption Law
  25. ↑ Delaware Civil Union Law
  26. ↑ Entering into a Hawai`i Civil Union
  27. ↑ Kentucky Adoption Law
  28. 1 2 3 State regulatory code allows delaying or denying an adoption based on sexual orientation. With same-sex marriage now legal, how this would apply to married same-sex couples is uncertain.
  29. ↑ Mont. Code Ann. § 42-4-302
  30. ↑ "LGBT Adoption Laws Nebraska | Gay Adoption | Same Sex Adoption Laws". www.lifelongadoptions.com. Retrieved 2015-12-07.
  31. 1 2 New Hampshire Second Parent Adoption: FAQs Accessed August 18, 2014.
  32. ↑ New Mexico Adoption Law
  33. 1 2 3
  34. ↑ "States where same-sex couples are barred from doing joint and/or second parent adoptions statewide" (PDF). American Civil Liberties Union. Retrieved June 2, 2012.
  35. ↑ Ohio Adoption Law
  36. ↑ Oklahoma Adoption Law
  37. ↑ Pennsylvania Adoption Law
  38. 1 2 3 4 Rhode Island H 6103 - An Act Relating to Domestic Relations - Civil Unions
  39. ↑ Utah Adoption Law
  40. ↑ Johnson, Bob (October 12, 2012). "Court upholds Ala. act banning same-sex marriage". Mercury News. Retrieved October 13, 2012.
  41. ↑ "Case: E.L. v. V.L.". NCLR.org. Retrieved December 16, 2015.
  42. ↑ Gay-Adoption Ban Passes in Arkansas
  43. ↑ State judge overturns Ark. adoption ban law
  44. ↑ Terkel, Amanda (April 7, 2011). "Arkansas Supreme Court Strikes Down Ban On Gay Adoptions". Huffington Post. Retrieved July 24, 2012.
  45. ↑ http://www.huffingtonpost.com/entry/arkansas-birth-certificates_565f6723e4b08e945fedecd7
  46. ↑ Miami judge rules against Fla. gay adoption ban
  47. ↑ Schwartz, John (September 22, 2010). "Florida Court Calls Ban on Gay Adoptions Unlawful". New York Times. Retrieved November 23, 2014.
  48. ↑ http://www.news4jax.com/news/florida/same-sex-couples-seek-ruling-in-birth-certificate-dispute
  49. ↑ Popkey, Dan (February 10, 2014). "Idaho Supreme Court sides with Boise lesbian couple in adoption case". Idaho Statesman. Retrieved November 22, 2014.
  50. ↑ http://www.elkharttruth.com/news/indiana/2015/12/08/Married-lesbian-couples-challenge-Indiana-birth-certificates.html
  51. ↑ In re I. M. (Kan. Ct. App. 2012). Text
  52. ↑ http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2013/20130222/103487.pdf
  53. ↑ "ACLU Praises Appeals Court Decision on Same-Sex Second-Parent Adoption, December 13, 2012". ACLU. Retrieved March 4, 2013.
  54. ↑ "Michigan adoption ban for unmarried couples being challenged in court today". Detroit News. August 29, 2012. Retrieved September 7, 2012.
  55. ↑ Ferretti, Christine (September 7, 2012). "Hazel Park women challenge Michigan's marriage amendment". Detroit News. Retrieved September 7, 2012.
  56. ↑ "Mississippi leads nation in same-sex child rearing". Northeast Mississippi Daily Journal. 2011-08-26. Retrieved 2012-03-12.
  57. ↑ Mississippi Statutes Annotated § 93-17-3(5)
  58. ↑ Swayze, Royce (August 14, 2015). "Same-sex couples sue over Mississippi adoption ban". USA Today. Retrieved September 14, 2015.
  59. ↑ Brooks, Karen (August 12, 2015). "Suit challenges Mississippi ban on adoption by same-sex couples". Reuters. Retrieved September 14, 2015.
  60. ↑ http://www.southernequality.org/wp-content/uploads/2015/08/15-08-12-COMPLAINT.pdf
  61. ↑ O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013.
  62. ↑ Mangan, Dan (October 1, 2012). "Judge rejects birth mother & gives custody to partner". New York Post. Retrieved October 2, 2012.
  63. ↑ https://badgerherald.com/news/2015/12/01/court-case-deals-with-discrepency-in-wisconsins-laws-for-gay-parents/

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