Throughout the US, there are same-sex couples who want to create a loving home for an adopted child. However, many same-sex couples face challenges in their attempts to adopt children domestically in the US. Some agencies won’t let non-heteronormative heterosexual couples adopt.

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Recently, in early June 2020, the Department of Justice filed a brief in Fulton v. City of Philadelphia. The brief argued that a taxpayer-funded organization has the right to refuse to work with same-sex couples and others if the group considers it to be in violation of its religious beliefs. 

In May 2019, the American Civil Liberties Union is suing the Trump administration “over a reported plan to make it easier for taxpayer-funded adoption agencies to reject same-sex couples on religious grounds⁠—a proposal that’s already been implemented in South Carolina.” The Trump Administration has been trying to chip away at an Obama administration rule that adoption agencies receiving federal funds were banned from discriminating against same-sex marriages.

Is adoption a universal right in the US?

Unfortunately, no. Adoption laws are based state by state, not uniformly recognized across the US, unlike the Supreme Court Decision legalizing same-sex marriages across the country in 2015. States differ on the rights of same-sex couples to adopt as well as the rights of unmarried co-habitation couples and single people on adoption.

Mark Momjian, attorney at Momjian Anderer, LLC explains, “Right now, we don’t have a Supreme Court decision that it is unconstitutional to have a preference for married couples versus unmarried couples or married couples versus single parents to adopt. Until that decision is made by the Supreme Court, we’re not going to have uniformity.” That means some states will have different policy objectives such as whether unmarried people or same-sex couples can adopt. Momjian believes that the laws are moving towards making it a more universal right in the US but that has yet to happen.

For instance, Maryland and Massachusetts prohibit adoption agencies from discriminating based on sexual orientation. In contrast, in South Carolina, a Christian ministry is permitted to receive federal funding for a foster care program. This allows the right to use the Religious Freedom and Restoration Act to discriminate against foster parents who conflict with the views of an agency.

Moreover, at the moment, private agencies, notably religious-based organizations, are permitted to refuse to allow LGBTQ couples to adopt. Whether private organizations that receive federal funding will also have this ability is now a question for the courts.

Should I adopt my partner’s biological child?

In situations where one partner has a biological child, the non-legal partner may want to consider formally adopting the child. Susan M. Murray, partner at Langrock, Sperry & Wool, LLP, recommends that non-biological parents to consider adopting their partner’s child (or children) as protection. If they move from a state that has friendly same-sex adoption laws to one that does not, that adoption should be recognized. The Supreme Court has ruled that states must recognize an adoption made in another state. However, what is on paper may not necessarily happen in practice.

Moreover, it’s important to know that having your partner’s name on a birth certificate may not be sufficient. Murray notes that a birth certificate “is not the same thing as adoption, or being declared as [the] legal parent.” She recommends people consult an attorney to get legal advice before making a mistake or assumption that a birth certificate is sufficient for securing their rights.

“The decision to adopt needs to be made with care and deliberation. It’s more than just loving the child, or loving the parent,” Momjian says, “Adoption requires a legal proceeding, a social worker, various clerks, and ultimately a judge to decide whether it is in the child’s best interest.”

What is second-parent adoption?

In some situations where one partner already has legal rights over a child, couples may want to consider second-parent adoption. The National Center for Lesbian Rights defines second-parent adoption as “a legal procedure that allows a same-sex parent, regardless of whether they have a legally recognized relationship to the other parent, to adopt her or his partner's biological or adoptive child without terminating the first parent’s legal status as a parent.”

Fifteen states recognize second-parent adoption: California, Colorado, Connecticut, District of Columbia, Idaho, Illinois, Indiana, Maine, Massachusetts, Mississippi, New Jersey, New York, Oklahoma, Pennsylvania, and Vermont. Some states, like Wisconsin and Ohio, that don’t permit second-parent adoption have permitted same-sex couples to use stepparent adoption procedures, which helps facilitate adoption in those situations.

How should I protect my family?

Momjian recommends that people research and “find an agency that is receptive to placing with a same-sex couple.” They can work with an attorney who can facilitate the process, but it may take time to find the right agencies. Some states will present challenges based on discriminatory practices.

Couples may want to consider second-parent adoptions as a measure of protection for one’s family. Consult a family law attorney to determine what the best course of action in your jurisdiction, recommends Momjian.

Murray adds that given the current political climate, people “cannot be complacent about their legal rights to the child or children they are parenting. They absolutely should get legal help to make sure they have dotted I's and crossed T’s with regard to legal relationship to the child they are helping to raise.”