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  Who cares, wins — 2  

  Vol III : issue 1

  Patricia M. Logue
  Bhishm Sahni
  Kamala Das
  K. Ramakrishnan
Jerry Pinto
  Only in Print

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Patricia M. Logue


Second-parent adoption cases have sparked some opposition, mainly from conservative Christian groups who appear in court to oppose these cases on appeal. In some statutes, moreover, a child is not considered eligible to be adopted by anyone except a married step-parent unless all his parentsí rights have been ended. A second-parent adoption will not go forward if, as some courts have held, the existing legal parentís rights must be terminated before an unmarried partner may adopt.

But in the last fifteen years or so, a series of cases has recognised that children already being raised by lesbian or gay couples should not be limited to one legal parent-child relationship because their parents are gay or cannot marry. These state courts have construed their adoption statutes to permit second-parent adoptions without terminating the existing parentís rights. This is because the goals of protecting parental rights and family security that are usually served by termination provisions are thwarted where a couple wants to have a unified family and continue jointly raising a child. Likewise, the overarching purpose of adoption statutes ó to serve the best interests of individual children ó is undermined. Exceptions for step-parent adoptions sprang up years ago based on these same understandings, despite contrary statutory language. The progress in this area is also akin to the American legal systemís evolution in protecting the rights of unwed parents and their children, who are no longer condemned to a second-class legal existence because of their parentsí marital status.

Courts granting second parent adoptions understand the deficit faced by a child who has no legally recognised relationship with a second parent. Adoption, on the most practical level, brings the child a myriad of practical protections that can be critical. These include access to federal social security benefits in the event of the adoptive parentís death or disability, health insurance coverage, rights of inheritance and the right to child support. Adoptive parents can make medical decisions for the child in case of emergencies. Legal parenthood also means presumptive custodial rights and continuity in the childís relationships with the second parent and relatives. These realities are compelling to courts, irrespective of their view of the adultsí relationship to one another, which is legally unchanged by adoption.

Where adoption is not available to a lesbian or gay couple and their relationship ends by death or separation, the parent-child relationships of non-biological de facto parents may be cast into legal limbo. While rights are uneven across the states, a number of jurisdictions now make it possible to continue the childís relationship with both parental figures through custody or visitation.

Many state courts and legislatures are grappling with where to draw lines that protect legal parents as well as childrenís critical bonds with de facto parents and certain non-parents. These cases implicate who each state considers a parent or accords rights of visitation or custody. There has been an explosion of statutes and case law in this area, including the 2000 grandparent visitation case of Troxel v. Granville that the US Supreme Court used to articulate baseline minimum constitutional protections for parental rights ó that a court cannot merely substitute its judgement for that of a parent as to whether visitation is best for a child, but must give the parentview Ďmaterial weightí.

Because of their unique legal and social position, lesbian and gay families have important interests on both sides of these constitutional and policy debates. Lesbian and gay non-biological parents are vulnerable to losing parent-child relationships altogether. Biological or adoptive lesbian and gay parents often have unaccepting relatives who are willing to contest the parentís custodial and other child-rearing choices at the drop of a hat. There is little upside to a rule that swings the courthouse door wide open to any and all.

In many states, where biology and marriage are key, claims by non-biological parents have been dismissed as legally unauthorised. But a consensus is emerging from a series of court decisions over the last decade as to how best to balance the need of fit biological parents for parental autonomy with the interests of children and de facto parents in securing and continuing their relationships. Typically, these cases focus on four factors that must be established to proceed with a claim. First, the legal parent has to have consented to and fostered the petitionerís relationship with the child. This is a direct nod to parental autonomy as it confirms the parentís role in allowing the relationship to develop and grow in importance, presumably in the belief it was in a childís best interests. The parentís change of mind may be reasoned, or arbitrary and spiteful. Second, a petitioner must show that she lived together as a family with the legal parent and child. Third, the petitioner must show she performed significant parental duties. Fourth, she must show a parent-child bond. The presence of these factors identifies the narrow group of cases in which courts should at least hear a claim to continue a personís relationship with a child through custody or visitation, despite parental or other objection.

While gay and lesbian families are achieving greater acceptance and security in the United States, their legal standing varies widely from state to state and even county courthouse to county courthouse. Overall, however, the basic American principle that the law should put the best interests of children above all else ó and the many cases and studies in which gay parents have rebutted misconceptions with the facts of their lives ó have led to inexorable progress toward equal treatment under law.

p. 1 p. 2

Patricia M. Logue is Senior Counsel for the Lambda Legal Defense and Education Fund.
She lives in Chicago, Illinois