All 50 states allow same-sex adoption provided one member of the couple is already the child’s birth or adoptive parent. Massachusetts allows second-parent or co-parent adoptions for unmarried couples. Same-sex or opposite-sex married or unmarried couples under Massachusetts law can adopt a child under the age of 14. This post reviews same-sex couples’ adoption and examines roadblocks LGBT couples may encounter in adoption and foster care settings.

There is a seminal 1993 Massachusetts case pre-dating legal same-sex marriage, Adoption of Tammy. This case involves two lesbian surgeons adopting one of the couple’s artificially inseminated child. The law’s primary concern is the child’s best interests. Based on this, the Supreme Judicial Court (SJC) finds the Commonwealth’s adoption statute permits joint adoption by unmarried cohabitants. Exemplified in a companion case, Adoption of Susan, the SJC grants the Probate and Family Court jurisdiction to decide a lesbian couple’s joint petition to adopt one of the women’s biological child.

SECOND-PARENT ADOPTIONS

A same-sex couple obtaining a second-parent adoption in Massachusetts tracks the same process a stepparent follows to adopt a stepchild. See our previous post, Stepparent Adoptions in Massachusetts. In both instances, the youngster must be the biological or adopted child of one member of the couple who has legal and physical custody. In the situation where the child is 14 or older, they must consent to be adopted.

Same-sex individual and joint petitions to adopt afford LGBT couples the chance to welcome children who are not related into their households. Additionally, they can attain second-parent status regarding the child of one of the couple’s spouses or partners. Second-parent adoptions involve the child of an unmarried couple member of any orientation. The adoption through an individual petition by the non-parent partner or joint petition by the couple. If granted, the child has two legal parents. The parental guardianship rights of the partner who already is the child’s biological or adopted parent are unaffected.

RISING SAME-SEX ADOPTIONS

Massachusetts is among jurisdictions that either by statute or high court ruling, permit second-parent adoption by unwed same-sex cohabitants.  Court orders granting second-parent adoptions merit acceptance in states that don’t allow such adoptions in their jurisdictions. This is due to the U.S. Constitution’s Full Faith and Credit Clause.

Statistically, same-sex couple adoptions have soared, tripling in number since the 1990s. Roughly 16 percent of same-sex households with children nationwide boast at least one adopted child. This is noteworthy because it reflects changing attitudes when considering that only 20 years ago. The American Bar Association endorsed a resolution against a party’s sexual orientation precluding an adoption otherwise deemed in a child’s best interest.

Massachusetts and all other New England states authorize stepparent adoptions for same-sex married couples. All, but New Hampshire, also allow civil union same-sex couples to adopt.

There are several States that follow Massachusetts’ lead in allowing second-parent adoption irrespective of the partners’ marital status. Those include California, Colorado, Connecticut, Illinois, New Jersey, New York, Pennsylvania, Oklahoma, Idaho, Indiana, Montana, Maine, Vermont and the District of Columbia. Even in states that do not recognize second-parent adoption involving unmarried couples, estate planning devices, such as wills and guardianship agreements, can afford some legal protection to a partner’s child residing with the couple.

ADOPTION STEPS

Adoption in the Commonwealth for same-sex couples begins with filing in the Probate and Family Court in the couple’s resident county a Petition for Adoption and accompanying Affidavit of the petitioner. They must also complete a Court Activity Record Information (CARI) form that searches an applicant’s history for criminal or juvenile offenses. An Affidavit Disclosing Care or Custody Proceeding is also part of the process. A marriage certificate or divorce certificate, if relevant. Additionally, the same-sex couple should file a series of motions waiving the statutorily-mandated Home Study by the Department of Children and Families, waiving Notice, and waiving the six-month residency requirement in the petitioners’ home of a child awaiting adoption.

Massachusetts law presumes that both spouses in a same-sex marriage into which a child is born are legal parents. However, the rationale for pursuing adoption and filing these waivers is the advisability of a court order validating the dual parental relationship that will be recognized outside of the Commonwealth’s jurisdiction.

It is worth remembering that until 1991, the Commonwealth prohibited gay individuals from becoming foster parents. About one-third of U.S.-based adoption agencies reject LGBT applicants because of state law or policy restrictions. Some of these laws limit placements to married couples, even faith-based private adoption agencies have argued religious freedom allows them to reject same-sex applicants as contrary to their beliefs.

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