Volume 18, Number 7
October/November 2001

Lesbian and Gay Parents and Their Children

By Shannon Minter

While public acceptance of lesbian and gay individuals has grown dramatically over the past 30 years, there is still considerable reluctance to treat gay families and parents as equal to heterosexual couples and parents. The primary victims of this unequal treatment are the children of lesbian and gay parents. The following is a brief snapshot of the current legal landscape for same-sex couples and their children with regard to marriage, adoption, child custody, and visitation.

Marriage: Not Yet a Legal Option for Same-Sex Couples
There are now at least 1.5 million same-sex couples living in the United States, many of whom would like to marry. Heterosexual couples marry for love and commitment, and for the important legal protections that marriage provides. Lesbian and gay couples seek to marry for the same reasons.

The General Accounting Office has calculated that there are at least 1,049 rights given to married people under federal law, ranging from the right to file taxes jointly to the right to inherit a spouse's social security benefits. Most of these are reserved exclusively for married spouses and cannot be duplicated through private agreements. The same is true under state law, which typically confers hundreds of additional rights and benefits exclusively upon legally married persons. These range from the right to sue for wrongful death to the right to be considered a legal parent of a child born during the marriage.

Currently, there is no state in which lesbian and gay couples may legally marry. In 1993, the Hawaii Supreme Court held that excluding same-sex couples from the right to marry violated the Hawaii Constitution, but the decision was quickly negated by a popular vote to amend the state constitution to permit sex-based restrictions on marriage. In 1998, an Alaska trial court held that the Alaska Constitution prohibited the state from denying same-sex couples the fundamental right to marry. Again, almost immediately, Alaska voters overturned the court's decision through a constitutional amendment.

In 1996, Congress passed the Defense of Marriage Act, which defines marriage for purposes of federal law as the union of a man and a woman. More than 30 states have enacted similar legislation expressly prohibiting recognition of same-sex marriages. In contrast, the trend in Canada, Europe, and a growing number of African and Latin American countries is toward greater recognition of same-sex relationships.

Civil Union and Domestic Partnership
In Baker v. State,1 the Vermont Supreme Court held that lesbian and gay couples must be provided with all the benefits afforded to married couples under Vermont law, but left it to the legislature to decide whether this meant "inclusion within the marriage laws themselves" or "some equivalent statutory alternative." The legislature opted for the latter and created a new legal status called "civil union," which is intended to provide same-sex couples with the functional equivalent of marriage. Although civil unions provide the most comprehensive protections ever afforded to lesbian and gay couples by any state, they are not recognized by the federal government and may not be recognized in other states.

Some states and localities also provide some rights to domestic partners. In contrast to marriage and civil union, however, which have a fixed and uniform legal meaning, the legal significance of domestic partnership is shifting, uncertain, and extremely limited in scope. For example, there is no state in which domestic partners currently have the protection of divorce laws, the ability to sue for wrongful death, the right to make medical decisions for each other, immunity under evidence laws, or the right to intestate succession.

Impact on Children
Family law generally tries to enhance the well-being of children by encouraging and facilitating, but not requiring, the rearing of children in a stable environment by two adults legally related to the child and each other. This goal is furthered by the long-standing rule that a child born to a married couple has a legally protected relationship to both parents. Even if the parents divorce, the law favors maintaining the child's legal and physical relationship with both parents, and both parents remain obligated to provide economic support to the child.

In contrast, the non-biological parent in a same-sex couple faces formidable obstacles in establishing a legal parent-child relationship. The one clear exception is Vermont, where children born to same-sex parents in a civil union have the same protections as those born to married parents. For example, when a child is born to a lesbian couple who are in a civil union, both women are automatically presumed to be the child's legal parents, even though only one has a biological relationship to the child.

Outside of Vermont, the only established means for a non-biological lesbian or gay parent to obtain legal recognition is through a second-parent adoption.2 Second-parent adoptions have been approved by appellate courts in six states and by trial courts in at least 16 more. They have also been rejected in some states.3 In jurisdictions where second parent adoptions are not available, same-sex couples are typically left with no way to protect the child's relationship with the non-biological parent.

There are major adverse consequences to the child, and to the adults, if the non-biological partner cannot establish a legal relationship with the child. Without a legal relationship, the child is not entitled to financial support from the non-biological partner, to any inheritance if that person dies without a will, to social security benefits, or to numerous other economic protections. The non-biological partner has no opportunity to seek custody or visitation if the couple splits up, no right to consent to medical treatment of the child, and none of the other legal rights of parenthood.

In Baker v. State, the Vermont Supreme Court rightly noted that "[t]he laudable governmental goal of promoting a commitment between married couples to promote the security of their children and the community as a whole provides no reasonable basis for denying the legal benefits and protections to marriage to same-sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts." Although children born to same-sex parents are in need of the same rights and protections as children born to heterosexual parents, current law does not provide those rights or protections.

Child Custody and Visitation
In addition to the birth or adoption of a child with a same-sex partner, many lesbians and gay men also have children in the context of a heterosexual marriage that ends in divorce after one of the spouses discloses his or her same-sex orientation. Historically, lesbian and gay parents in this situation have been deemed unfit to have custody of their children and are often denied even the right to unrestricted visitation.

Over the past three decades, however, the great majority of state courts have concluded that being lesbian or gay has no direct relevance to parenting ability and should not be a per se bar to child custody or visitation. Under the nexus approach, which has been adopted in most states, neither a parent's sexual orientation nor involvement in a same-sex relationship is relevant to custody or visitation unless there is evidence that the parent's conduct is causing harm to the child.4

In some states, however, punitive attitudes toward lesbian and gay parents still prevail. In a recent case from Alabama, for example, the Alabama Supreme Court held that a lesbian mother could not have custody of her eight-year-old daughter on the sole ground that the mother and her female partner "presented themselves openly to the child as affectionate 'life partners.'"5 The court concluded, "While the evidence shows that the mother loves the child and has provided her with good care, it also shows she has chosen to expose the child continuously to a lifestyle that is neither legal in this state, nor moral in the eyes of most of its citizens."

New Laws Needed
Unfortunately, large portions of the public still believe that gay couples and families are different, that they do not have the same legal needs or share the same values as heterosexual couples. Although the legal treatment of lesbian and gay relationships and families has improved, children with lesbian and gay parents continue to suffer the consequences of unequal and inequitable treatment.

We will all be better off when the law reflects an understanding that while families of different cultures, ethnicities, income levels, and gender composition do vary in a variety of ways, same-sex couple families do not differ in ways critical to marriage or child welfare policy.

1. 744 A.2d 864 (1999)
2. In a handful of states, courts have begun to hold that when a same-sex couple uses reproductive technology to have a child, both partners are legal parents; the non-biological parent does not need to go through an adoption. This is not yet clearly established as a viable legal alternative to second-parent adoption.
3. Second-parent adoption has been rejected by appellate courts in Wisconsin, Colorado, Ohio, and Pennsylvania. Florida prohibits any forms of adoption by lesbian and gay people; Mississippi prohibits adoption by couples of the same gender; and Utah prohibits adoption by unmarried couples.
4. In Boswell v. Boswell, for example, the parents separated after the husband told the wife that he was gay. The trial court prohibited the father from having any overnight visitation in the presence of his male partner or "anyone having homosexual tendencies." The Maryland Court of Appeals reversed, holding that a court must have evidence that a parent's relationship is having an adverse impact on the child before it can restrict the parent's custody or visitation.
5. Ex Parte J.M.F., 730 S.2d 1190 (Alabama 1998).

Shannon Minter is the senior staff attorney for the National Center for Lesbian Rights, a national legal organization devoted to achieving civil rights protections for lesbian, gay, bisexual, and transgender people and their families.

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