Thursday, January 1, 2009

Why Lawyers Recommend Second-Parent Adoptions (even if you're married)

When I posted on Thomas Beatie (aka the pregnant man), I noted that his wife Nancy needs to adopt their child to be certain that her relationship with the child will be protected and recognized everywhere. (My crosspost on Bilerico generated many, often indignant, comments). All the LGBT legal groups advise same-sex couples to do second-parent adoptions, even when they are married, or in civil unions or domestic partnerships that give both people parental rights over a child born to either of them.

A recent decision from a federal court judge in Louisiana explains why. In that case, litigated by Lambda Legal, the state of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy.

Rejecting the state's argument, the District Court Judge Jay Zainey explained the meaning of the federal constitution's "full faith and credit" clause. That clause requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. The judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." (my emphasis). But, Judge Zainey continued,

"There is no 'roving public policy exception' to the full faith and credit obligation of states to recognize judgments. Instead, the Supreme Court has held in a number of cases that full faith and credit must be given to the judgment of another state even if...the judgment contravenes the public policy of the forum state." (my emphasis)

So if someone is the parent of a child by virtue of a state statute that gives that person a status with respect to the person who gave birth to the child (spouse, domestic partner, civil union partner), another state may not recognize that parent-child relationship. But an adoption is a court proceeding that results in a judgment granting the adoption, and that must be given full faith and credit, even in states hostile to gay families.

Readers of this blog and my book know that I abhor the argument that same-sex couples should be allowed to marry for the sake of their children. Marriage equality advocates make claims about the benefits to children of having married parents. Since no child is supposed to face discrimination as a result of having unmarried parents (whether those parents are same-sex or different-sex), I always argue that the solution to any disadvantage is to clarify that marriage is not necessary for children of either straight or gay couples.

But the claimed benefits of marriage for children are also misleading. If a married same-sex couple thinks they are both parents of the child born to one of them, they may be in for a shock if they move to or travel in a state that doesn't recognize their marriage (more than 40!). It's a second-parent adoption that protects the parent-child relationship, and for that the couple doesn't need to be married!

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