Same-Sex Adoption: It’s All Settled Now, Right?

Many Americans assume that when the Supreme Court made its historic decision in Obergefell v. Hodges, legalizing same-sex marriage across the United States, that the status of homosexual couples in essentially every area of the law was naturally going to follow. Unfortunately, the legal world is rarely so organized — or cut-and-dried.

For example, Obergefell wasn’t just one case — it was a consolidation of four different cases. But when the Supreme Court gave their answer to Obergefell, they didn’t address all of the questions raised in the three other cases. One of those three, DeBoer v. Snyder, wasn’t originally about same-sex marriage, but rather about same-sex adoption. Because DeBoer‘s original complaint had been amended partway through the case, and reframed as a same-sex marriage issue, the adoption question was wholly unaddressed in the Obergefell decision.

Same-Sex Adoption Isn’t Really the Question
As of today, there is only one state where same-sex couples cannot adopt — and even in Mississippi, they can adopt other children; they are only forbidden from adopting a child born to their partners. (Naturally, Mississippi’s law is being attacked by multiple cases as we speak.) Effectively, then, there are almost no questions about the legality of same-sex adoption itself — the questions are about what happens later.

Same-Sex Rights After Adoption: A States’-Rights Nightmare
V.L. v. E.L., one woman of lesbian couple, using reproductive technology, conceived 3 children. They raised the children for several years, and during that time, the mother of the three gave consent to have her partner adopt all three children (without giving up any parental rights of her own) in the state of Georgia. But after those several years and a move to Alabama, the couple divorced, and the biological mother denied her ex-partner access to the children she had adopted. The ex- filed in Alabama to have the state acknowledge the Georgian adoption and give her all of the rights typically afforded a parent, including visitation if not shared custody.

After a fight up to the Alabama Supreme Court, the ex- was denied her petition on the grounds that Georgia’s laws state, “a child who has any living parent or guardian may be adopted by a third party . . . only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.” This meant that the adoption wasn’t legal in the first place under Georgia law, and thus wouldn’t be acknowledged in Alabama.

The case was heard in front of the U.S. Supreme Court on March 7th, cast not as a matter of same-sex adoption, but as a matter of the rights one state has to override the judgments of another state’s courts. Same-sex advocates are touting the Court’s decision as a victory for same-sex adoption, but the fact is that the court’s opinion had nothing to do with the legitimacy of same-sex adoption and everything to do with the necessity of forcing each state to honor the judgments of another state’s court system.

This, unfortunately, means that are legal in almost every state, in almost every form, there are still a vast number of grey areas surrounding such adoptions that are very much up in the air. While we’re getting closer and closer to a family law environment that doesn’t distinguish between homosexuals and heterosexuals, we’re not quite there yet. If you’re a same-sex couple working your way through the adoption or divorce processes and you need help understanding your rights and options, call Gucciardo Family Law today: we can help.