Homosexual Parenting: The Legal Landscape

by Paula Murphy

Courts are making it easier for lesbians and gay men to adopt children. New York's highest court, the Court of Appeals, has cleared the way for unmarried partners to adopt their partners' children in the "Matter of Jacob" and "Matter of Dana" cases decided jointly last November. In the Dana matter, the non-biological mother of a child born to her lesbian partner sought a legal adoption of the child. The court approved the adoption and remanded the case to Family Court, which awarded the adoption last December.

The Jacob decision allowed the male partner in a heterosexual non-married couple to adopt his partner's child. Now both partners in both couples have legal rights to the children to whom they already acted as parents.

The Jacob and Dana cases were the first in which the high court approved a second-parent adoption by the unmarried partner of a child's biological mother, without terminating the biological mother's rights. Before these decisions, only married couples could get second-parent adoptions.

Although the court in the Jacob and Dana cases did not technically decide that a non-married couple could adopt a non-biologically related child, it does not preclude each individual in the couple from filing separate adoption petitions, said Beatrice Dohrn, legal director of Lambda Legal Defense Fund, and the lawyer who represented the lesbian couple in the Dana case.

Heterosexual and homosexual individuals were already allowed to adopt, as single parents, in New York. Discrimination based on sexual orientation is prohibited in New York. Therefore, lesbians and gay men cannot be denied adoption based solely on their sexuality.

Dohrn argued the Dana case without charging her client because, she says, she considered it a "test case," or a case which "in some manner fits within our mission of furthering our (gay and lesbian) rights." Typically, second-parent adoptions can cost up to $5,000 in New York City.

Before the Dana decision, New York courts were allowing second-parent adoptions for lesbian and gay couples on a county by county basis. Now same-sex couples in every county throughout the state can get these adoptions, as long as they prove they are fit parents.

"Family courts and Surrogate courts were approving these adoptions in Manhattan but not in Brooklyn," said New York Law School Professor Art Leonard, who in 1978 founded the Lesbian and Gay Law Association, a professional bar association for lesbian and gay attorneys. "It was very important that we got this adoption because it carries throughout the whole state."

Some gay and lesbian advocates say the fight for gay and lesbian parental rights is far from over, however, and that the state legislature will inevitably draft a bill to undo Dana. "Thus far a bill to overturn the Matter of Dana has not been introduced but I'm not sure why not because I expect it," Susan Hendricks said at a recent discussion about the Dana case held by the Lesbian & Gay Law Association. Hendricks wrote an amicus curiae brief in the Dana case and is the Deputy Director of the special litigation unit of the criminal defense division at the Legal Aid Society. "I think maybe it's just because they're too busy dismantling the welfare system and thinking of even more creative ways of keeping people in prison longer. But I think they'll get to it, this being an election year."

But Hendricks says the legacy of the Dana case can be preserved. "In the past we've been able to rely on the Assembly to help us out and kill really bad things that hurt us," she said. "I do think that if a bill to overturn Dana gets through the Senate that we can stop it in the Assembly. I think it's going to take a concerted effort from advocates for children and from the gay and lesbian community and people who care about civil rights in this state to do that."

New York is one of many states awarding adoptions to lesbians and gay men, largely because they are finding that a legal bond is "in the best interest of the children." Last year, courts in Illinois and New Jersey granted adoptions to lesbian partners and in Washington, DC, two gay men in a "committed relationship" were granted adoption of a 4-year-old girl. In Wisconsin, the Supreme Court awarded the ex-lover of a lesbian mother visitation rights to the young boy they had raised together before they split.

Some states, however, have decided that "exposure" to homosexuality is not in the best interest of the child. Appellate courts in Wyoming and Louisiana have denied adoptions to lesbians based on this belief. In Virginia, Sharon Bottoms lost custody of her 3-year-old son last April because the Supreme Court decided she was unfit as a parent, in part, due to the "felonious sexual conduct inherent in lesbianism." No matter how "fit" a lesbian or gay man is to be a parent, New Hampshire and Florida have statutory bans prohibiting them from adopting children.

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