ACLU Challenges Law Banning LGBT Adoption

Posted June 25, 2012 in Gay and Lesbian issues by

The American Civil Liberties Union is suing in North Carolina to overturn a law banning second-parent adoption, which effectively prevents LGBT partners from adopting their significant others’ children.

  • Adoption laws vary by state, many discriminatory to same-sex couples
  • Ban on second-parent adoption puts children in limbo if parent dies
  • Controversial study on gay parenting questioned


Discrimination by Law

Kenneth Altshuler, president of the American Academy of Matrimonial Lawyers

The lead plaintiff in the ACLU lawsuit, Marcie Fisher-Borne, has been with her partner Chantelle for 15 years. Each birthed one child during that time. However, neither is the official adopted parent of the other’s child, thanks to a North Carolina law that disallows second-parent adoption if the couple isn’t married.

Effectively this means that LGBT parents can never officially adopt, although it has the effect of blocking co-habitating straight couples from becoming the lawful parents of their partners’ children as well.

“The ability for same-sex parents to adopt a child is a way to get around limitations where gay marriage is not legal,” says Kenneth Altshuler, president of the American Academy of Matrimonial Lawyers. “Without that, you could be raising a child, something happens to the biological parent, and you have no legal rights.

“Even if an adult has raised a child for years or its entire life, without legal adoption there is no way to ensure continued guardianship if the biological parent passes away. “Basically you could get in a position where you have no legal rights to even see the child,” Altshuler says.

“This is one of the 1000-plus rights under law that a gay parent doesn’t have by gay marriage not being legal.”North Carolina recently passed a constitutional amendment noting that marriage between a man and a woman would be the only form of union recognized in the state. 


State by State

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The National Center for Lesbian Rights noted that at least 270,000 children are being raised by same-sex couples, a number that is probably under reported. According to the NCLR, Florida was the only state that specifically banned gay people from adoption, but the law was found unconstitutional in 2004. Otherwise, unmarried individuals in all states are free to adopt children whose parents have died or renounced their parental rights (pending review or approval by a court, of course).

Where things get more complicated is for LGBT couples trying to adopt a kid. Mississippi, Utah, Arizona, and Arkansas all have laws that either ban same sex couples or give preference to married couples over others in adoption, although Arkansas’ statute was ruled unconstitutional.

Then, yet another issue comes up with second-parent adoption, when the significant other of a parent wants to legally adopt their partner’s child from a previous relationship or donor. Laws vary among states, but in many it’s okay for married partners to perform a second-parent adoption, but not for unmarried couples. In states where LGBT marriage is illegal, that leaves same-sex couples out in the cold.

California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Washington D.C. all specifically allow same-sex couples to adopt.

Nebraska, North Carolina, Ohio, Wisconsin and Kentucky specifically ban second-parent adoption or similar measures. Other states have made various rulings on a county-by-county basis. 


Trauma for Children

A recent study that found children from broken LGBT homes have more “psychological and social problems in their current lives” than children from traditional broken homes has caused a wide controversy over the past two weeks. Conservative groups hailed the study as validating their tirades against gay marriage, while progressive writers questioned the study’s funding sources ($800,000 from two conservative groups) and pointed out that LGBT marriage could add stability and prevent the broken homes that are causing so many problems.

“These findings shouldn’t surprise us, because this isn’t a study of gay couples who decided to have kids,” William Saletan of Slate noted. “It’s a study of people who engaged in same-sex relationships—and often broke up their households—decades ago.”

Pseudo-science aside, what legal adoption by second parents would do is help prevent broken homes, in cases where a child could be taken from a parent its known its entire life, in the wake of losing its other parent.

“Too bad, you don’t have any legal relationship to this child,” Altshuler says. “Think about how traumatic that would be for the child.”

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