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Parenting by the Year

by August V Martens

19 April 2010

Currently, as in a number of other jurisdictions, Louisiana law does not permit unmarried couples, regardless of sexual orientation, to adopt a child. Louisiana Children's Code Article 1198 dictates that a single individual, or a married couple jointly, may petition the Court for adoption.

Review the following rather common scenario in differently-sexed couples:

John and Lisa are married. Two years later, Lisa gives birth to a baby girl, Chloe. Shortly thereafter, John and Lisa are divorced. John no longer wants to have anything to do with his child (no contact, no child support, etc. for the next six months). One year later, Lisa meets David and the two marry. Lisa and Baby Chloe are well provided for by David. David, with Lisa's consent, petitions the Court for adoption of Baby Chloe. John, who is now living in another state, is contacted and gladly agrees to have his parental rights terminated. The Court happily signs the Judgment of Adoption, praising David for his willingness to become legally bound as Chloe's father, and reminding him that in the event of his death, Chloe will now inherit from his estate, just as if she was his biological child.

Same-sex couples, hoping for similar treatment by the courts, will be disappointed. Just as Louisiana law does not permit same-sex couples to jointly adopt a child, the law also prohibits an individual from adopting their partner's biological child – even with the consent of the biological parent. The "public policy" reasoning of creating a supportive and nurturing home environment, is apparently trumped by the "public policy" against the recognition of same-sex relationships.

However, there does exist within Louisiana law, a way for an unmarried, biological parent to confer limited parenting rights upon their partner. In a Provisional Custody by Mandate, the biological parent may "authorize any person of legal age to provide for the care, custody and control of the minor child."

The document typically authorizes the partner to:

The document is a type of Power of Attorney, with many of the same provisions and restrictions. The right can revoked at any time by the biological parent; it automatically terminates upon the death of the biological parent; and the partner to whom the right is given may renounce the right at any time.

It is important to note that the Provisional Custody by Mandate will only be effective for time periods up to one-year. So, as the one-year date nears, the document must be renewed.

While a Provisional Custody by Mandate does not equate to all of the rights and responsibilities that come with adoption, it does offer the same-sex partner of a biological parent some authority and power when making decisions affecting their child.

"This article is not a substitute for legal advice. Neither the information contained herein, nor the receipt of such is intended to create an attorney-client relationship. Because the law constantly changes in this and other areas of practice, the reader is urged to consult professional legal counsel regarding the issues of law opined in the above article."

The Author

August V Martens is an attorney practising in Metairie, Louisiana, with expertise in Wills and Estate Planning, Powers of Attorney, Successions, Same-Sex Partnership Agreements, Same-Sex Provisional Custody By Mandate, Intra-Family Adoptions, Name/Gender Change to Birth Certificate, Personal Injury, Family Law