Adopting a Child

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acknowledgment of paternity, either at the hospital or at a later time. In
some states, in fact, the only way that an unmarried father’s name can be
placed on the child’s birth certificate is if the father signs such a form—so
if he’s not present at the birth, he will have to come in later and submit
the form in order to have his name on the birth certificate as father.
Some lesbians and gay men parenting together prepare a written
agreement about their plans to coparent. Because the courts will generally
recognize both parties as parents, such an agreement isn’t really necessary,
nor is it enforceable—remember, the courts have to go by what is in the
child’s best interests. But like a donor insemination agreement, it can help
to defuse conflict if you have different memories of what you agreed to
before. Above is a sample agreement.
Adopting a Child
Another parenting option for same-sex couples is for one or both partners
to adopt a child who is not biologically related to either partner—a
process that can be accomplished through a public agency, a private
agency, or private contact with birth parents. This section discusses all of
these options.
Adoption Is Not Available Everywhere
In a few states, openly gay people—whether single or coupled—are not
allowed to adopt a child. In other states, the law doesn’t prohibit such
adoptions but in practice they are very difficult to obtain. Accordingly, each
state requires a customized legal strategy. If you live in a state where it’s
difficult or impossible for LGBT couples to adopt together, consider having
one partner adopt as a single person. Of course, if you do this, the parent
who doesn’t do the adoption is at a legal disadvantage in a breakup, as
discussed above and in Chapter 10.
In most states, if you want to adopt you will probably want to hire an
attorney. Most adoptions aren’t that legally complicated, but a judge will
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be reassured by the presence of a lawyer and may be disturbed otherwise—
and this is not the time to make a procedural error. Obviously, you want
the judge to be as comfortable as possible. Also, a lawyer with good local
connections who has handled gay and lesbian legal issues before will know
how to get a favorable social worker or disqualify a hostile judge.
If you are seeking to adopt a child through a private agency or through
private contacts, it may take quite some time—perhaps a longer-thanaverage time—because you will be looking for birth parents willing
to place a child with a same-sex couple. Don’t be discouraged, but be
realistic—and be prepared to wait. Of course, you will have many more
options if you are open to adopting a child of a different race, a child who
is slightly older or disabled in some way, or a pair (or more) of siblings
together.
To evaluate your options, start with a local lesbian or gay parents’
organization. Its members will know what’s been done and what’s possible
in your area.
Overview of Adoption
In order to adopt a child, you must meet certain legal requirements.
The following information is, by necessity, general. State laws vary
considerably—but this section will give you a sense of some of the issues,
and you can treat what you read here as a starting place for your research.
Age limits. In some states, the adoptive parent must be older than the
adopted child by a specific number of years. Other states only require the
adopting parent be over 21, and some states allow any person older than
the child to adopt.
Residence. You will file your adoption case in the county where you, and
normally the child, live. If you are adopting a child from another state,
you will have to comply with a special law called the interstate compact on
adoption, and you will definitely need an attorney to help you.
Who may be adopted. Interreligious and interracial adoptions used to
be, and sometimes still are, refused by adoption agencies and courts as
not being in the “best interests of the child.” Special laws apply to the
adoption of Native American children, with preference being given to
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family members, other members of the child’s tribe, and then other
Native American families. The law also requires that the tribe be notified
of most foster-adoption placements of Native American children and
provides that some state adoptions can be set aside by tribal courts.
Name changes. All states permit the adoptive parent(s) to change the
child’s last name at the time of adoption.
Records and birth certificates. Nearly all states seal adoption records so
that they can’t be inspected without a court order except by the parties
or the lawyer involved. Adoptive parents can usually obtain a new birth
certificate showing the child’s new name and listing the adoptive parents
as the child’s parents.
Consent of the child. Most state laws say that children over a certain age
must consent to the adoption. The age varies from state to state, but is
usually between ten and 14.
Termination of birth parents’ rights. In all but second-parent and
stepparent adoptions, the parental rights of both of the adopted child’s
birth parents are forever terminated when the adoption is finalized.
Social worker investigation. Every proposed adoption must be evaluated
by a social worker or another qualified adoption worker, who submits a
report to the court with a recommendation about whether the adoption
should be granted.
Court hearing. Every adoption requires a court hearing. The adoptive
parents and the child must attend, and the parents must sign consent
forms in front of the judge. The hearing is private and is usually held in
the chambers of the judge, who is generally friendly and quite pleased to
be presiding over such a happy occasion.
Methods of Adoption
The most common methods of adoption are:
• through a public or private agency doing domestic adoptions
• through a private agency doing international adoptions, and
• through the birth parents or a private intermediary.
Second-parent and stepparent adoptions are quite different, and are
addressed separately in “Protections for Second Parents,” above.
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“Open” and “Closed” Adoptions
Agency and private adoptions can be either open or closed. In an open
adoption, the adopting parents and the birth parents meet to share
information and get to know each other. Generally, even after the adoption
is finalized, the birth parents (or, often, just the birth mother) continue to
have some contact with the adoptive family—exactly how much contact
is up to all the parties. Some adoptive parents prefer an open adoption
because they want to have access to medical information and want their
child to know the birth parents. Research shows that children benefit
from open adoptions. Others prefer a closed adoption, where neither set
of parents knows the other’s identity, and the paperwork is sealed and
becomes legally inaccessible. If you have a strong preference one way
or the other, you may wait a bit longer, because birth parents who have a
strong preference the other way won’t consider you a match.
With both open and closed adoptions, the birth parents’ rights are
terminated when the adoption is finalized in court. Agreements for contact
in an open adoption are not enforceable by a court, because the birth
parents no longer have any rights in relation to the child they gave up for
adoption. But because the two families generally communicate during the
adoption process about what level of contact is appropriate, conflicts don’t
occur that often. Still, if you are concerned about making sure that you
won’t run into anything unexpected in connection with the birth parents, a
closed adoption will probably be a better option for you.
Agency Adoptions
Many gay men and lesbians adopt through an agency—either a public
agency, such as the county welfare department, or a private adoption
agency. In agency adoptions, the agency locates children available for
adoption and matches them with prospective adoptive parents—or, in the
case of many private agency adoptions, the birth parents choose from a
list of prospective adoptive parents supplied by the agency.
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In the past, most private and public agencies favored married couples
over single parents, and many still do. But so many children are waiting
for adoption though public agencies that social workers in some areas
are opening their minds to new possibilities. And some private agencies
are simply willing to take on more diverse clients. At this point, some
agencies treat LGBT singles like any other single people, and treat samesex couples, married or not, like opposite-sex married couples. In some
places, public agencies actively recruit lesbian and gay adoptive parents.
Unfortunately, however, many agencies still won’t even accept
LGBT singles or couples as prospective adoptive parents. That kind of
discrimination against same-sex singles and couples in adoption is perfectly
legal in most places. As a practical matter, if you encounter resistance in a
private agency you probably want to look elsewhere—there’s no point in
pushing to have an agency accept you as a client when you can be pretty
sure they won’t work hard to find a child to place with you.
Before signing on with an adoption agency, you’ll be subject to
extensive interviews, questionnaires, and home visits to make sure
that you are suitable parents. In a private agency adoption, the birth
parents have relinquished a child for adoption, sometimes with specific
requirements about the type of people they want to adopt their child. In
public agency adoptions, the child has already been removed from the
home and the parents’ rights often have been terminated by court order.
In that case, the agency will decide who are appropriate adoptive parents
for the child. Many public agencies have fost-adopt programs. See “Foster
Parenting,” below.
Both types of agencies will work to find a match between the children
waiting to be adopted and the parents waiting for a child. When a
possible match has been identified, a social worker will again interview
you to make sure that the match is appropriate, and will evaluate your
home in order to make a formal report to the court. The agency will
recommend to the judge whether or not the adoption should be granted.
As a practical matter, once you have signed on with the agency you are
unlikely to get an unfavorable recommendation, because the prescreening
pretty much guarantees that they consider you suitable.
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Assuming all goes well, you will attend a court hearing at which the
judge will declare you the legal parents of your new child.
One advantage of adopting through a public agency is that these
adoptions are very low-cost. Usually, the agency is responsible for
children who are removed from their parents’ custody because of abuse
or neglect, and the social workers are eager to place the children in loving
homes. In order to encourage prospective adoptive parents, the costs are
kept extremely low, and there are no birth mother expenses to consider.
A private agency adoption can be much more expensive—anywhere
between $5,000 and $25,000, depending on how many specific
requirements you have about what type of child you will adopt (the more
detailed your requirements, the more searching the agency will have to
do), the financial needs of the birth mother, and the agency’s fees. Shop
around for a good private agency until you find one that has the right
combination of experience, openness to LGBT families, and reasonable
fees.
Fighting Discrimination by Adoption Agencies
In December 2003, a gay couple in California sued two online adoption
agencies, Adoption.com and ParentProfiles.com, for refusing to allow the gay
men to submit a paid posting to the site as prospective adoptive parents. The
defendants’ websites charge fees for posting profiles of potential adoptive
parents. Using the websites, birth parents can search those profiles to choose
potential adoptive parents for their children. The agencies challenged the
lawsuit, but a federal district court judge allowed the case to go forward, and
in May of 2007 the parties reached a settlement when the defendants agreed
to stop discriminating in California and to allow all California residents to
post profiles on the sites.
In New York, the Attorney General challenged two online adoption
services that refused services to same-sex couples, arguing that the denial
violates the state’s Human Rights Law. The adoption services stopped doing
business in New York rather than comply with the law.
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Tip
Do your homework. Lots of adoption information is available over the
Internet, and there are websites where you can register as a prospective adoptive
family for review by birth mothers who are considering adoption or choosing
adoptive parents for an unborn baby. (But check out the online agency’s rules
carefully—see “Fighting Discrimination by Adoption Agencies,” above.)
Private Adoptions
In a private adoption, sometimes also called an independent adoption,
you find the child yourself or with the aid of a private intermediary
other than an agency. Sometimes a friend or relative knows someone
who’s planning to relinquish a child for adoption, or knows someone
who knows someone. Private intermediaries, sometimes called adoption
facilitators, are only legal in some states.
Private adoptions are legal in most states and are quite common for
parents adopting infants. The adopting parents normally pay the birth
mother’s medical expenses and sometimes her living expenses, in addition
to paying the legal fees. Paying any other fee, however, is illegal, and
in most states you must sign an affidavit that you did not pay the birth
mother for anything other than the expenses allowed by law.
In many states it’s illegal for the prospective adoptive parents or the
birth mother to advertise for an adoption, and using an intermediary
to locate or place an adopted child is also questionable. Nonetheless,
many lawyers help with placement, and if it is legal in your state, there is
nothing wrong with asking an attorney to help you find a child to adopt
and to do the legal paperwork for you—assuming you can afford it.
Caution
Beware of “black market” adoptions. The idea of people skulking
down dark alleys to buy a baby from a mother or an intermediary isn’t just
unpleasant—it’s illegal. One way this works is to have the biological mother
register at a hospital in the name of the adoptive mother so that the birth
certificate contains the “adopting” parent’s name. However handled, it leaves the
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adoptive parent open to the risk of prosecution, as well as the risk of losing the
child if the biological mother changes her mind.
Once you or your intermediary locate a baby, the biological parent(s)
must sign a consent form, and you must file an adoption request with the
court and submit to an investigation by a state or local agency appointed
by the court to evaluate private adoptions. The social worker who
investigates the adoption request will make a report and recommendation
to the court, and a judge will approve your adoption at a court hearing
that you, your partner, and the child all attend.
International Adoptions
Currently, no foreign country allows adoption by same-sex couples or
openly gay singles. Some countries do allow adoption by single people,
though many strongly prefer that the adopting parents be married, and
some countries have recently established new policies against allowing
any adoptions at all by single people. For example, China—which had
been a popular adoption destination for same-sex couples for many
years—has a set of policies that took effect on May 1, 2007, that include
the rule that single people may no longer adopt children from China
under any circumstances. If a country requires adoptive parents to be
married, then obviously neither a same-sex couple nor a lesbian or gay
individual can adopt there. And the ability to marry makes no difference,
because no country will allow an openly gay or lesbian couple to adopt.
In fact, you’ll be required to disclose your marital status and getting
married probably will preclude an international adoption.
If you are proceeding with a foreign adoption, you will need to keep
your sexual orientation—and your relationship with your partner—
hidden from the host country. It is a judgment call whether or not
you tell the agency helping you with the adoption about your sexual
orientation. Many agencies operate on a wink-and-nod basis—they are
fully aware of the nature of your relationship with your partner, but refer
to the partner as a “roommate” in their reports to the host country, and
simply ignore the issue of sexual orientation.
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The United States now participates in the Hague Adoption Convention,
which has added some additional layers of rules onto the adoption process
and made it even more difficult for LGBT would-be parents to adopt.
The information in this section will give you an idea of what the process
looks like generally, but you’ll need to consult an attorney to find out
where things stand in terms of your ability to actually proceed with an
adoption.
Like domestic agency adoption, adopting a child who was born in
another country takes patience and perseverance, as well as the ability
to tolerate a lot of paperwork, bureaucracy, and foreign travel. Many
children available for international adoption are living in orphanages.
International adoptions are nearly always closed adoptions, and most of
the time there will be little or no information available about the child’s
birth parents. International adoptions are expensive, costing no less than
$10,000 and often up to $30,000.
Caution
International adoption can be risky for reasons unrelated to sexual
orientation. Global politics and changing conditions, as well as problems with
adoption fraud, lead to frequent shifts in the availability of children in different
countries—shifts that can affect adoptions in process. For example, during the 2003
epidemic of Severe Acute Respiratory Syndrome (SARS) in China, all adoptions were
suspended (the paperwork could go forward, but you couldn’t pick up a child in
China). Adoptions in Cambodia were discontinued for a period of time because of
the difficulty there of ensuring that children available for adoption were actually
orphans or were properly placed for adoption and that there was no fraud or
child stealing involved. Similar problems have arisen recently in Costa Rica, where
babies from Guatemala were smuggled in for adoption. Again, make sure you stay
up to date through the Department of State website (http://travel.state.gov), and
make sure you use a reputable adoption agency.
Most people adopting internationally use a United States agency
to help them identify a child and navigate the international adoption
procedures. It’s very difficult, if not impossible, to do an international
adoption on your own—there are simply too many hoops to jump
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through. But it’s critically important that you find a reputable agency.
Make sure that you check the agency’s success rate, talk with a significant
number of former clients, and find every piece of information you can
before you sign up. Referrals from friends or others who have used an
agency are your best source of information, but make sure you check
out the objective facts as well. Stick with a licensed agency. Adoption
“facilitators” often charge exorbitant sums and make extravagant claims
about their connections in foreign countries, promising results that don’t
pan out.
If you do find an agency to work with and you get through the
paperwork, you must next be prepared to become a world traveler. In
most cases, adoptive parents travel to the host country to meet a child
who has already been identified as a potential adoptive child. Often, you
must make two trips—one to meet the child and agree to the adoption,
and a second, a few months later, to attend a final adoption hearing and
bring the child home.
Because only one partner in a lesbian and gay couple can be the
adopting parent, the question often comes up whether the partner who is
not adopting should travel with the adoptive parent. Doing so raises the
possibility that the relationship may become an issue in the host country
or among other couples traveling, since an agency usually arranges for
numerous couples to travel together to pick up children. On the other
hand, the second parent is likely to want to be involved in every aspect of
the process, and the adopting parent will probably want support during
the stressful trip. This is a judgment call that you can make based on
the openness of your agency, the current climate at the time you are
adopting, and the country to which you are traveling.
When you return home with your child, you may be required to file
a petition for “readoption” in your home state. Not all states require
this, but some do, and even if your state does not require it, it’s a good
idea. A readoption is a simple process through which an American court
confirms that you are the legal parent of the child you have already
adopted internationally. The primary benefit of the readoption is that
you will receive a birth certificate from your home state listing you as
the child’s parent. This is a convenience that may save you hassles later,
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as the birth certificate and adoption order that you receive from the host
country will not be in English, and the translation, if you get one, can be
sketchy.
You can’t use a readoption as a shortcut to getting parental rights for
the second parent—you will still have to do a second-parent or stepparent
adoption.
Tip
If you live in a state where second-parent adoption is available,
you may not need to do a readoption. If the readoption is required by state
law or by the host country, then you will have to do it no matter what. But if it’s
not, and you live in a state where second-parent or stepparent adoptions are
allowed, then the adoption by the second parent will achieve the same result as a
readoption—a birth certificate in English, showing both partners as legal parents.
Citizenship Issues
A child adopted from a foreign country automatically becomes a U.S. citizen
upon arrival in the United States as long as the foreign adoption is final—as
is the case in nearly all international adoptions. In the few cases where the
adoption remains pending for a period of time after the child comes to live
in the United States, citizenship is not final until the adoption is complete.
Information about visa and citizenship issues in international adoption is
available at the Department of State website at http://travel.state.gov (click
the link for “children & family”).
Resource
For more information about adoption in your state, check with
a local attorney, your local social services agency, and/or the website of the
National Center for Lesbian Rights (www.nclrights.org) or Lambda Legal Defense
and Education Fund (www.lambdalegal.org) to find out what is possible in your
local area.