It has been less than one week since the Supreme Court’s Obergefell decision holding that the 14th Amendment of the United States Constitution requires states to license marriages between two people of the same sex and to recognize lawful out-of-state marriages between two people of the same sex.
Very understandably, we have already received multiple questions regarding whether, in light of Obergefell, same sex married couples need to adopt their children given that their marriages are now recognized throughout the country.
We have long advised same sex couples, even when they are married and even when both of them are listed on the child’s birth certificate, that they should do a “stepparent adoption,” and Obergefell does not change this.
While a child born to a married same sex couple in Connecticut is presumed to be the child of both members of the couple and both should be listed as parents on the birth certificate, that presumption is rebuttable based upon biology.
Otherwise put, there is nothing stopping a known donor or even an unknown donor from attempting to assert parentage over his biological child. There is also nothing stopping a disgruntled former spouse from attempting to, for example, avoid child support by arguing that a child born into the marriage is not his or her biological child. There is also nothing stopping a disgruntled former spouse from attempting to, for example, deny custody and visitation rights to his or her former spouse by arguing that that a child born into the marriage is not his or her spouse’s biological child.
A stepparent adoption is a Connecticut legal process in which a child who is the biological child of one spouse is adopted by the non-biological parent. After the adoption, the child has two legal parents. Unlike when a couple relies on the presumption, an adoption is not rebuttable.
More, in some states, even after Obergefell, there is no presumption of parentage like there is in Connecticut. What this means is that if the couple moves or if they separate or divorce and one party relocates, the couple may not even have the benefit of the presumption they had in Connecticut.
Adoption will permanently terminate a donor’s rights, and creates a permanent and irrevocable court decree ordering that both spouses are a child’s legal parents.
According to Susan Sommer of Lamda Legal, even with marriage equality nationwide, it is still:
“wise for people to do second-parent adoptions [making non-biological parents legally recognized ones], at least until things simmer down and the adoption landscape is clearer.”
We also anticipate that there will be continue to be religious freedom arguments made against same sex adoption. For example:
Earlier in June, Michigan passed a law allowing adoption agencies—even those that are publicly funded—to refuse to place children with same-sex couples if they have religious objections to doing so. It’s unclear how this religious-liberty claim might be interpreted in light of Obergefell; this is one of the “hard questions” that will be raised by the Court’s decision, Roberts writes, and “there is little doubt that these and similar questions will soon be before this Court.”
In short, yes, non-biological parents should continue to adopt their children.