Recent Articles About Frederick Hertz | Recent Articles by Frederick Hertz
Return to Home Page
As more and more same-sex couples bring children into their lives, an increasing number of legal conflicts have arisen regarding adoption and custody. As troublesome as these battles are, it is essential to acknowledge that these conflicts are a sign of our community's growing maturity. We are venturing into new social territory, so we shouldn't be surprised when legal conflicts arise. What is important is how we deal with these problems -- especially those within our communities' control.
The conflicts regarding children generally arise in one of two settings: (1) attempts by same-sex couples to legalize their relationship to their children through joint adoption or second-parent adoption; and (2) custody conflicts between same-sex partners if and when the couple breaks up. In the first setting it's a battle between our community and the governments and courts of this country; in the custody battles the conflicts lie within our community -- but involve the policies and statutes of the wider legal world.
Current Trends in Same-Sex Adoptions
We all know that single lesbians and gay men can bring children into their lives, either through donated sperm, heterosexual relationships or adoption. Single lesbians and gay men are frequently able to adopt -- both domestically and internationally -- and in some states two unmarried same-sex partners can jointly adopt a child.
In many instances, however, only one partner has a legal relationship to his or her child, but both partners want to both be legal parents. Even while they cannot legally marry each other, partners understand that it is important -- both emotionally and legally -- to have a joint legal connection to their children.
Thousands of same-sex couples have been able to achieve this important goal through a legal method known as "second parent adoption." While the procedures differ from state to state, the concept is that the "second" parent (i.e. the non-biological or non-adoptive parent -- the one without an existing legal relationship to the child) adopts his or her partner's child, while the first parent remains a legal parent. This method was first developed to meet the needs of heterosexual step-parents, and courts in more than a dozen states have approved second parent adoptions since 1985.
In most states adoption statutes make no mention of this procedure. As a result, lawyers have had to work with local judges to craft innovative procedures -- and to convince judges that state law doesn't prohibit this process. So long as the judge is open to the application, the process usually takes only a few months and the fees can be kept under $1,500. Once approved by the judge, the adoption is usually valid in every state.
Not surprisingly, however, as this innovative practice becomes more widely known, legislatures and judges in a variety of states have begun to try to ban it. The battles over second-parent adoption have been fierce. The conflicts -- which sometimes arise in a particular application and other times in a legislative or administrative context -- have led to mixed results. As a result of these battles, whether you are able to obtain a second-parent adoption can depend heavily on what state you live in and how the battles are shaping up in your particular state at the particular time you apply.
This month's Legal Alert provides an overview of what is happening on this important issue. To learn more about the situation in your particular state, it is critical that you talk with a local attorney familiar with the rules in your local area. What was allowed one year may not be allowed the next, and what couldn't be accomplished in one county may be possible across the river.
Here is the most recent news from the second-parent adoption front. Be warned: most of the recent news is not encouraging.
In Utah, the state government has recently adopted administrative policies that expressly prohibit lesbians and gay men from adopting children. This would typically ban single lesbians and gay men -- as well as same-sex couples -- from openly adopting children in Utah.
In Texas, the state legislature is considering a bill which would prohibit placing children in adoptive homes where "homosexual conduct" is likely to occur. Again, if passed this statute would bank single as well as coupled lesbians and gay men from adopting children.
In Idaho, (In the Matter of T.R.C.) a trial court denied a second-parent adoption (on the grounds that same-sex marriage had recently been banned in Idaho), and the case is on appeal at the Idaho Court of Appeals.
In Ohio, (In re Adoption of Jane Doe, 1998 Ohio App. LEXIS 6230), the Court of Appeals upheld a trial court's denial of a second-parent adoption, ruling that state law required the termination of one parent's rights whenever another person adopted the child. While sympathetic to the applicants, the Court ruled that the state statutes simply did not allow them to authorize this innovative procedure.
In Connecticut, the Supreme Court reversed a lower court's approval of the second-parent adoption procedure, concluding that Connecticut's statutes on adoption simply didn't allow second-parent adoption.
To learn more about what is happening in this area of law, check out the Web site of the National Center for Lesbian Rights: http://www.NCLRights.org, and the Web site of the monthly Lesbian/Gay Law Notes, a monthly newsletter published by the New York lesbian/gay bar association: http://www.qrd.org/qrd/www/usa/legal/lgln
Custody and Visitation Disputes
As maddening as these adoption battles can be, at least we can take comfort in supporting these community-wide efforts to further our goals. The conflicts between same-sex partners regarding their children, however, are especially troublesome, since they pit one homosexual against another in the context of an unhappy dissolution.
Here's the situation: for those couples who have been able to co-adopt their children (and are therefore both legal parents) and subsequently break up, custody and visitation conflicts will be handled just like for married couples. The family courts have jurisdiction over the conflicts, and the judge can make decisions about custody (both legal and physical) and visitation (visits by a parent who doesn't have legal or physical custody) based upon the "best interests of the child" -- which is how things should be decided.
Unfortunately, if the partners have not been able to (or have not been motivated to) undertake the difficult process of legalizing their joint relationship to their child, the ordinary rules don't apply. The reason for this is that from a legal perspective, the non-biological (or non-adoptive) parent may not have a legal relationship to the child -- even if he or she lived with and co-parented the child for many years.
In a few states, a non-legal parent can seek regular access to the child using procedures originally designed to protect the rights of de facto parents (such as relatives, foster parents, or friends of the family). In other states, however, the courts have ruled that the non-legal parent has no right to maintain a relationship with his or her child, if the legal parent objects. In other states, the courts are in conflict, with a dizzying range of results.
From any rational social, emotional and political perspective (and in my personal opinion), it is a travesty for any lesbian or gay man to make use of the prohibition of same-sex marriage to deny his or her partner access to a jointly raised child. Partners can certainly raise particular objections to individual claims for visitation based upon the particular facts of the situation, but a blanket objection based upon heterosexist state laws is deeply troubling -- and in my personal opinion, flatly wrong.
Indeed, representatives of several national lesbian/gay rights groups are currently formulating a "community standards" paper setting forth guidelines for resolving such disputes, in the hope that couples will resolve their disputes outside of the legal arena. But meanwhile, many same-sex parents have attempted to take advantage of the bias in their state laws to deny their partners access to their children.
Here's how the courts have recently dealt with these conflicts:
In New Jersey, (V.C. v. M.J.B. 1999, JL 111432), the appellate court granted visitation rights to a non-biological lesbian co-parent, allowing regular visits with the children, but refused to grant the non-biological mother joint custody -- which would have made her an equal co-parent (with full rights of access and decision-making regarding the children) with her former partner. Reversing a decision by the family court, the justices ruled that whenever a person shows that she or he "stands in the shoes of a parent" or functions as a "psychological parent," the court has the power to consider what is in the best interest of the child and to grant visitation rights.
In New York, (Matter of Lynda A.H. and Diane T.O 1998, WL 307452), the court's Appellate Division ruled that unless the court can find that the legal parent is unfit, the non-legal parent has no right to seek visitation or custody of a child who is legally related only to the biological mother.
In Arizona, the state legislature recently enacted a statute which allows non-legal parents to seek visitation rights, whenever doing so is in the best interests of the child. Under Arizona law, a petition can be filed by someone who has been treated as a parent by the child and has formed a "meaningful" relationship with the child for a substantial period of time.
Finally, in a closely watched case recently argued before the California Court of Appeals (Guardianship of A.W. and K.W, (1999), D.A.R. 3668, AO79097), a non-legal co-parent was denied the right to use state guardianship law to seek visitation of the children she raised with her former partner. California law expressly prohibits same-sex partners from seeking visitation or custody unless there's been a second parent adoption (see Nancy S. v. Michele G (1991), 228 Cal. App. 3d 831), so here the non-biological mom sought to be recognized as a de facto parent who should be named as a co-guardian of the children -- which would then entitle her to request visitation. The trial court authorized the use of the guardianship procedure but denied the petition on the facts, and the Court of Appeals then ruled that unless the legal parent consented or the child was shown to be harmed by remaining with the legal parent, the guardianship process could not be used by a non-biological mom to seek visitation rights.
To learn more about these cases, check out the Web site of the Lesbian/Gay Law Notes, a monthly newsletter published by the New York Lesbian/Gay Bar Association: http://www.qrd.org/qrd/www/usa/legal/lgln
To learn more about legal and political efforts to support same-sex families in the San Francisco Bay Area, check out the Web site of All Our Families Coalition: http://www.allourfamilies.org
To stay informed about legal issues facing same-sex couples generally, check out these additional Internet resources:
General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at firstname.lastname@example.org and make an appointment to meet with him.