OK, this may get a little technical. The right to adopt is created by statute. That means the language in the statute must be strictly followed. The legal phrase is "strict construction." The statute's language controls the outcome.
Twenty-five states allow second-parent or co-parent adoptions. Five other states have allowed these adoptions. The National Center for Lesbian Rights has a good guide to the states, www.nclrights.org. Look for the Fact Sheet: Adoption by LGBT Parents.
Ohio is one of the states that has not, as a general rule, allowed second parent adoptions. However, Ohio courts will honor signed agreements between the parents concerning shared custody. Those orders do not, necessarily, need to be adopted by a court. (See In re Mullen, 129 Ohio St. 3d 417, 2011-Ohio-3361). Having a shared custody agreement adopted as a final court order is helpful because it helps prevent the "but I didn't mean it" argument.
You don't, necessarily, need a lawyer to draft a shared custody agreement, but since this area of law continues to evolve, having an lawyer who has experience with LGBT legal issues involved in the process is helpful.
Since the Obergefell decision came down in June 2015 many lawyers are "discovering" the LGBT community and marketing their services. Find a lawyer who knows what he or she is talking about. If you know more than your lawyer--find another lawyer.
Let's walk through the shared custody agreements and adoptions that apply to same-sex couples.
Twenty-five states allow second-parent or co-parent adoptions. Five other states have allowed these adoptions. The National Center for Lesbian Rights has a good guide to the states, www.nclrights.org. Look for the Fact Sheet: Adoption by LGBT Parents.
Ohio is one of the states that has not, as a general rule, allowed second parent adoptions. However, Ohio courts will honor signed agreements between the parents concerning shared custody. Those orders do not, necessarily, need to be adopted by a court. (See In re Mullen, 129 Ohio St. 3d 417, 2011-Ohio-3361). Having a shared custody agreement adopted as a final court order is helpful because it helps prevent the "but I didn't mean it" argument.
You don't, necessarily, need a lawyer to draft a shared custody agreement, but since this area of law continues to evolve, having an lawyer who has experience with LGBT legal issues involved in the process is helpful.
Since the Obergefell decision came down in June 2015 many lawyers are "discovering" the LGBT community and marketing their services. Find a lawyer who knows what he or she is talking about. If you know more than your lawyer--find another lawyer.
Let's walk through the shared custody agreements and adoptions that apply to same-sex couples.
Take a lesbian couple (Pam and Linda) as an example. The women are not married and decide to start a family. Through a clinic, the women use an unknown sperm donor and Pam will carry the child. When the baby is born, Pam is the biological mother. Linda has no legal rights concerning the child.
Shared Custody Agreements: Pam and Linda can enter into a shared custody agreement in which Pam waives her rights to the full care, custody and control of the child guaranteed her by the U.S. Constitution and agrees to share custody with her partner, Linda. The agreement includes the women's agreement about support, school and what happens if they break up.
In Ohio, the agreement is enforceable in court as long as both partners sign it. Pam and Linda can also file the agreement in Juvenile Court and ask that it be adopted as a court order. That provides additional protection.
The Ohio Supreme Court decided in 2002 that these agreements cannot be referred to as Shared Parenting Agreements because the term "parent" is defined in Ohio law. In light of the 2015 Obergefell decision, the court may revisit that limitation.
Second Parent Adoption: If Pam and Linda live in one of the 30 states that allows or has allowed second-parent adoptions, this is another avenue to pursue. An adoption is a legally recognized determination of parental rights.
Some states refuse to allow them because the biological parent, in this case Pam, does not give up her parental rights. Instead, this type of adoption allows her same-sex partner, Linda, to adopt their child and be legally recognized. Adoption is far superior to a shared custody agreement.
Second parent adoptions, in the states that allow them, are filed by unmarried same-sex couples. It seems likely that an unmarried heterosexual couple could also use the process if the child is only related to one of them.
Co-parent adoptions: These adoptions occur when a same-sex couple is adopting a child simultaneously. Fewer states allow these adoptions. The couples are usually unmarried but allows a couple to adopt a child even though both are the same gender. Going back to Pam and Linda, they could jointly adopt a child who related to neither of them. Both women would be considered the child's legal parents.
Stepparent adoption: Stepparent adoptions are filed when one spouse adopts the other spouse's child. Many same-sex parents object to filing a stepparent adoption because "it isn't fair."
Married same-sex couples that have children born during the marriage may be covered by the "marital presumption." Under this presumption children born during a marriage are presumed to be children "of the marriage" and both spouses are deemed legally recognized parents. But the marital presumption is not available in every state. New Mexico, for example, does not recognize a marital presumption. And, the presumption is rebuttable--so it is not absolute.
For same-sex couples whose children were born before the marriage there is no "marital presumption."
A stepparent adoption guarantees both spouses will have legally protected and recognized parental rights. The U.S. Constitution's Full Faith and Credit Clause requires the States to accept the court orders from all other States.
Some lawyers are calling these adoptions "confirmation adoptions" rather than stepparent adoptions and that terms seems make the concept more palatable for same-sex couples. However, the state statute may refer to these proceedings as "stepparent adoptions" and the court pleadings will reflect the statutory language.
Whatever they are called, the result is the same--legally recognized parental rights. It's worth the effort to pursue.
Shared Custody Agreements: Pam and Linda can enter into a shared custody agreement in which Pam waives her rights to the full care, custody and control of the child guaranteed her by the U.S. Constitution and agrees to share custody with her partner, Linda. The agreement includes the women's agreement about support, school and what happens if they break up.
In Ohio, the agreement is enforceable in court as long as both partners sign it. Pam and Linda can also file the agreement in Juvenile Court and ask that it be adopted as a court order. That provides additional protection.
The Ohio Supreme Court decided in 2002 that these agreements cannot be referred to as Shared Parenting Agreements because the term "parent" is defined in Ohio law. In light of the 2015 Obergefell decision, the court may revisit that limitation.
Second Parent Adoption: If Pam and Linda live in one of the 30 states that allows or has allowed second-parent adoptions, this is another avenue to pursue. An adoption is a legally recognized determination of parental rights.
Some states refuse to allow them because the biological parent, in this case Pam, does not give up her parental rights. Instead, this type of adoption allows her same-sex partner, Linda, to adopt their child and be legally recognized. Adoption is far superior to a shared custody agreement.
Second parent adoptions, in the states that allow them, are filed by unmarried same-sex couples. It seems likely that an unmarried heterosexual couple could also use the process if the child is only related to one of them.
Co-parent adoptions: These adoptions occur when a same-sex couple is adopting a child simultaneously. Fewer states allow these adoptions. The couples are usually unmarried but allows a couple to adopt a child even though both are the same gender. Going back to Pam and Linda, they could jointly adopt a child who related to neither of them. Both women would be considered the child's legal parents.
Stepparent adoption: Stepparent adoptions are filed when one spouse adopts the other spouse's child. Many same-sex parents object to filing a stepparent adoption because "it isn't fair."
Married same-sex couples that have children born during the marriage may be covered by the "marital presumption." Under this presumption children born during a marriage are presumed to be children "of the marriage" and both spouses are deemed legally recognized parents. But the marital presumption is not available in every state. New Mexico, for example, does not recognize a marital presumption. And, the presumption is rebuttable--so it is not absolute.
For same-sex couples whose children were born before the marriage there is no "marital presumption."
A stepparent adoption guarantees both spouses will have legally protected and recognized parental rights. The U.S. Constitution's Full Faith and Credit Clause requires the States to accept the court orders from all other States.
Some lawyers are calling these adoptions "confirmation adoptions" rather than stepparent adoptions and that terms seems make the concept more palatable for same-sex couples. However, the state statute may refer to these proceedings as "stepparent adoptions" and the court pleadings will reflect the statutory language.
Whatever they are called, the result is the same--legally recognized parental rights. It's worth the effort to pursue.
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