Why Adoption Is Absolutely Necessary for Same-Sex Couples (Yes, Even in Massachusetts!)

As tens of thousands of same-sex couples take advantage of various equal marriage laws and civil union statutes throughout the country, it is important to remember that the patchwork quilt of laws regarding same-sex families is largely unfinished.

So while there is much cause for celebration, we should remember that the federal government refuses to recognize any kind of same-sex relationship; that the nation's largest single employer (the military) will not tolerate homosexuals (much less recognize same-sex relationships); that same-sex couples are not treated equally in the application of immigration laws; and that throughout the country there are laws that ban adoption by homosexuals, that permit discrimination in employment and housing on the basis of sexual orientation, and prohibit any recognition of same-sex relationships. In response to the aforementioned laws and prohibitions, same-sex couples are forced to spend time and money on domestic partnership agreements, estate and health care planning to obtain even the most basic protections for family and loved ones. Failure to plan can have truly devastating and unintended consequences for same-sex couples and their families.

When it comes to child-rearing and parenting for same-sex couples, this national patchwork of rights, prohibitions, and outright discrimination can be catastrophic and downright terrifying. I advise my clients (and the various LGBT legal advocacy groups agree) that the only way to guarantee the recognition of their legal parent-child relationship is by petitioning the Court to grant a Co-Parent Adoption.

Your State-Sanctioned Same-Sex Marriage/Civil Union/Domestic Partnership Does Not Guarentee A Legally Enforceable Parent-Child Relationship. A recent New York case - Debra H. v. Janice R. - highlights this fact particularly well.

Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis (what we would call De Facto Parental Status in Massachusetts) to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.

However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years. The Court's reasoning is clear and unambiguous:

"Although the record indicates that petitioner served as a loving and caring parental figure during the first 2½ years of the child's life, she never legally adopted the child. ... This matter is governed by the Court of Appeals decision in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]), which provides that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70..."

The New York Court denied parental status to Debra even though it recognized that the child had been "born approximately one month after the parties entered into a civil union in the State of Vermont, and more than two months after they registered as domestic partners in New York City".

The Constitution Requires That States Give Full Faith And Credit To The Judgments Of Another State. In a recent Federal Court decision, the State of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy, and that it could refuse to issue an amended birth certificate.

Rejecting the state's argument, the District Court Judge Jay Zainey explained that the well-settled meaning of the federal constitution's "Full Faith and Credit Clause" requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. Importantly, the judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." On Summary Judgment, Judge Jay Zainey ordered the State Registrar to honor the valid New York adoption judgment and issue an amended birth certificate to the adoptive same-sex parents.

This case reminds us that although a state is constitutionally required to recognize the judgment of a foreign jurisdiction, it will not be equally compelled to recognize foreign statutory schemes or regulations (see: same-sex marriage or civil union) that violate its laws or public policy.

But Will My Spouse And Children Be Protected By Our Valid Same-Sex Massachusetts Marriage?

Yes! But only in Massachusetts.

In the case of heterosexual married couples, it has always been the case in Massachusetts that a child born during the marriage is legally presumed to be the biological child of both the husband and wife. With full legal recognition of same-sex marriage in 2004, married same-sex couples should receive the same presumption of parenthood here Massachusetts, although I am not aware of any cases that have tested this right.

Same-sex couples should not rely on the Massachusetts presumption of parenthood alone to establish a legal parent-child relationship between a non-biological parent and child. Put another way, if your only legal connection to a child is through your same-sex marriage, your parent-child relationship is only as valid as your same-sex marriage. Because only four states currently recognize same-sex marriage, the chances of ending up in a state that treats you as a legal stranger to your same-sex spouse and your same-sex spouse's child is great.

Regardless of whether your same-sex marriage is valid at the time of the birth of your children, or whether you wish to parent your same-sex partner's biological children, only a final and binding Adoption Decree will guarantee the creation of a universally recognized and legally valid parent-child relationship.

Given the uncertainty caused by a patchwork of new and untested state laws recognizing and banning same-sex relationships, same-sex couples should consult with an attorney to ensure that all of their exceptions and assumptions surrounding their rights are correct, especially if there is a child involved. Adoption is the only guaranteed method of creating a legal parent-child that will be recognized by other states. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a stressful or tremulous time can make an unpleasant situation terrifying and even dangerous.