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Adoption Options for Same-Sex Parents

3/8/2016

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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.
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U.S. Supreme Court rules on adoption by same-sex parents

3/8/2016

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In September 2015, the Alabama Supreme Court decided that a second-parent adoption granted in Georgia was invalid and refused to recognize it. On March 7, 2016, the United States Supreme Court, in an unanimous decision, ruled that Alabama got it wrong. The adoption was valid under Georgia law and Alabama had no legal basis for deciding otherwise. (The case is V.L. v. E.L., et al., 577 U.S. ___ (2016)) By the way, the Supreme Court issued its decision without holding oral arguments. The Justices obviously saw no reason to delay the obvious. Alabama was wrong, period.

The United States Constitution has a provision called the "Full Faith and Credit" clause. Under Full Faith and Credit each State is required "...to recognize and give effect to valid judgments rendered by the courts of its sister States." (V.L. at p. 3). 

The U.S. Supreme Court (aka SCOTUS) has issued several decisions affecting LGBT rights over the years. The last big one was Obergefell v. Hodges in June 2015 when the court decided that marriage equality could not be denied to same-sex couples. The V.L. v. E.L. decision runs along the same track but it addresses an issue on which SCOTUS has been silent--the right of same-sex parents to be legally recognized.

The V.L. decision is important because it removes any doubt that the Full Faith and Credit clause applies to adoptions involving same-sec parents. It also clarifies that one state must honor adoptions granted in another state even when there is disagreement.

This decision will provide considerable peace of mind to many same-sex couples and their children.

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    Author

    Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning. She writes on a variety of topics and is an adjunct professor at Case Western Reserve School of Law. Joan is nationally recognized for her work in addressing legal issues affecting the LGBTQ+ community.

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Joan M. Burda Attorney at Law • lgbtlaw@mac.com • 216.832.8825
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