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The Rainbow Clause:
Giving us the right to choose who; where; when; why; and how.
A Parental Instinct
Gay and lesbian couples find ways to navigate
obstacles on the road to parenthood
The desire to start a family and raise children
within the context of a loving relationship is natural. But for gay and lesbian
couples across the United States, realizing this dream comes with a unique
set of obstacles not faced by their straight counterparts. The good news
is that in most cases, these obstacles can be overcome.
Gay couples typically bring children into their
homes by one of two means. Children are fostered, and in many cases, adopted;
or one partner is the biological parent of a child, either from a previous
heterosexual relationship, or through surrogacy or donor insemination. That
may seem like a simple enough statement in and of itself, but laws and blatant
discrimination often create difficulties that can drag on for years. Here
we will explore the challenges faced by same-sex couples who wish to raise
children together, the ways in which gay couples can become parents, and
how each partner can legally protect his or her own parental rights.
Foster Parenting and Adopting
In a small number of states, laws do exist that
specifically prohibit gay couples, or gay individuals, from adopting or fostering
children. However, these laws are few and far between. Only Florida, a state
that has received a great deal of attention in recent years for its refusal
to allow gay adoption, explicitly denies this right to gays and lesbians.
The state does allow gay men and lesbian women couples to foster children,
but because these parents cannot legally adopt their children, couples who
have cared for a child for years may find themselves faced with giving that
child up if a straight person, or straight couple, decides they want to adopt
the child. The good news is that six states as well as Washington, D.C. now
have laws in place to allow gay adoption.
In these states, and in states where no specific
anti-gay adoption laws exist, the fitness of potential foster or adoptive
parents is considered on a case-by-case basis. Of course this does not mean
that certain adoption agencies or agency representatives will not be reticent
to place children with gay couples. In many cases, there are indirect statutes
that complicate the process, or family court judges known for their
disinclination to place children in gay-, or lesbian-, based homes. What
it does mean is that legally, your right to adopt or foster may be protected.
It also means that you may not have to accept "no" as an answer.
One way to circumvent the legal system is to
adopt a child in a state that legally recognizes gay adoption, then return
to your home state and request that your child's adoption be recognized.
In 2003, a Mississippi judge ruled that the adoption of a child born in that
state by two women living in Vermont must be recognized in Mississippi, and
an amended birth certificate must be issued, even though Mississippi does
not recognize same-sex couples, or allow gay adoption. In most cases there
are no "gay" clauses attached to certain laws; any child adopted by out-of-state
parents has a right to an amended birth certificate from his or her birth
state, regardless of the sexual orientation of the adoptive parents.
Parenting Your Partner's Biological Child
If you have been divorced, or otherwise ended
a heterosexual relationship that involved children, you no are no doubt aware
of the challenges that face gay parents in obtaining custody of their biological
children. This article assumes that you or your partner currently have legal
custody of your child, and that you are now interested in having the
non-biological parent legally recognized.
This is most commonly accomplished through what
is called second-parent adoption. While the process varies from state to
state, most courts will grant a second-parent adoption if the legally recognized
biological parent consents, and if the adoption is deemed to be in the best
interest of the child. Once the adoption is complete, the non-biological
partner will be granted all applicable parental rights where that child is
concerned.
Alternatives to adoption exist as well. Courts
can declare an individual to be the legal parent or guardian of a child,
and in states where lesbian and gay domestic partnerships, or lesbian and
gay marriage, is recognized, children born into or adopted into a same-sex
relationship are considered the child of both partners. Another option
is "psychological parenthood," a process by which a parental figure is deemed
to be such an important and integral part of a child's life that denying
him or her access to the child in a parental role would be harmful to the
child.
Protecting Your Rights
Regardless of how you become a parent, it is
essential that you find a legal avenue by which to safeguard your rights.
If you are not the legally recognized parent of your child, and you and your
partner separate, you may not have any case at all in terms of visitation
and custody. If your partner passes away or becomes incapacitated, you may
have no legal right to your child. No one likes to think about the possibility
of tragedy, but the fact remains that we must prepare for the bad times,
as well as the good.
Second-parent adoption remains the best way
to protect your rights. Whether your child is biologically related to one
of you, or came to you through adoption, it is likely that only one of you
has legal guardianship. Even in states where gay adoption is allowed, many
only allow one parent's name to appear on the adoption record. Securing equal
parental rights through a second-parent adoption ensures that your children
can rest assured in the knowledge that you will always be his or her parents.
Parenting agreements can also be drawn up, although
in most cases they are not considered legally binding documents. They can
be useful - for example, in cases where one partner dies suddenly - in
establishing the wishes of a parent, and can often help couples to focus
their attention on their children instead of themselves when dealing with
the tension of a break up.
In any of these scenarios, it is always advisable
to have the counsel of a legal professional. Resources for fighting
discrimination toward gay parents and finding lawyers who are supportive
of gay adoption can be found by visiting
www.aclu.org or
www.glaad.org.
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