Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

A lot of times people assume that all conservatives are against gay rights and all liberals are for them.

A federal gay marriage case is risky, they say, because the Supreme Court has a conservative majority. Or, as they said before, Maine voters will uphold gay marriage because it's such a liberal state. Turned out that wasn't the case.

Political ideologies don't necessarily predict support for gay rights, as last week's Adar v. Smith  decision shows. The Fifth Circuit Court of Appeals, arguably the most conservative circuit after the Fourth, said that Louisiana must recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Conservatives tend to put precedent over public policy, and that's what the court did here. While Louisiana might have its own public policy reasons for not allowing gay adoptions, the court said that the full faith and credit clause requires the state to recognize out-of-state ones.

That's why gay rights cases relying on more conservatives arguments are more promising than ones that rely on public policy reasons. Take, for example, Gill v. OPM, the Massachusetts case asserting that marriage rights should be left up to the states, a typical conservative argument.

Especially if the Supreme Court keeps its historically conservative bent, arguments like these may have the most success in recognizing more rights for same sex couples.

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Here's a guide to gay adoption states, showing where and to what degree gay adoption is legal. Check other posts for information on second parent adoption or gay adoption laws generally.

What Is It?

Two men or women adopting, as a couple, another child.

States Where It's Always Legal

• California
• Connecticut
• Illinois
• Indiana
• Maine
• Massachusetts
• New Jersey
• New York
• Oregon
• Vermont

States Where It's Legal in Some Counties

• Nevada
• New Hampshire

Keep in mind that a judge often grant a joint gay adoption in other states, but there's no law in those states saying whether it's allowed or disallowed.

States Where It's Never Legal

• Utah
• Florida
• Mississippi
• Michigan
• Arkansas

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Here's a guide to gay adoption laws. Keep in mind that gay adoption rights are set out by state law, so the following is just a general overview. I'll update this post with more information occasionally.

For more coverage, check out two previous posts on second parent adoption and gay adoption state laws.

General Issues:

• Usually you file the adoption in the county that you and the child live. It gets more complicated if the child lives in another state, but it's doable.
• Any child can be adopted, but adoption agencies will usually allow only what's in the "best interest" of the child. They might not allow the adoption if you have a different religion or race, but this is becoming more rare.
• Every state lets you change the child's last name at the time of the adoption.
• Almost all states will seal the adoption records.
• Almost all states will grants a new birth certificate showing the child's new last name.
• Every state will require a social worker investigation and a court hearing. 

For gay adoption state laws.

Some Advice

• Get a lawyer. You don't need one, but when it comes to securing your relationship with your child, you want to make sure all your ducks are in a row.
• Want to adopt through a private agency? Be prepared to wait. You'll have to find someone that's willing to let their child be raised in a same-sex household, and not everyone wants that.
• Fastest way to adopt? Being flexible in the child you adopt. You'll find it easier if you're willing to adopt a child who's a different race, older, or disabled.

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The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn't get an updated birth certificate from Louisiana. Back then, Louisiana said it didn't have to recognize adoptions from other states that it wouldn't perform itself.

The Court today said otherwise. Here's a PDF of the unanimous opinion in favor of the gay couple.

Why is This Case Important?

Because it's about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don't allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith--that they shouldn't have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here's why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

• First, it recognized that the Supreme Court has said that there are no "public policy exceptions" to the clause.
• Second, it disagreed with Louisiana's argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana's policy with New York's.
• Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.

So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn't face is DOMA, a federal allow that says specifically that states don't have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won't get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

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Gay adoption has been illegal in Florida since 1977, but another judge has nevertheless allowed it. This makes three approved gay adoptions within the last year.

What's going on?

Circuit-judges hearing adoption cases have said that the gay adoption ban is unconstitutional, and therefore grant the adoptions despite the law against them. You might remember from discussion around the Proposition 8 trial about what makes a law unconstitutional. It's not whether it's discriminatory, but rather, whether the state has a good enough reason for discriminating.

That's why the judge said in her ruling that the law is unconstitutional because the state government's reason for it--that gay adoption is bad for children and society--isn't good enough:

There is no rational connection between sexual orientation and what is or is not in the best interest of a child. The child is happy and thriving with [his lesbian mother]. The only way to give this child permanency . . . is to allow him to be adopted.

Meanwhile, the Court of Appeals for the Third District in Florida will soon rule on the Gill adoption case, the first of three times when a judge in Florida granted a gay adoption.

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Jodilynn Jacob and Jennifer Shultz-Jacob had a lisenced Vermont civil union from 2002 to 2006. During that time, Jodilynn used a sperm donor to give birth two children. When the lesbian couple split up in 2006, Jodilynn took the kids with her, and a court ordered her ex-partner, Jennifer, to pay child support. Up to that point, the breakup and award of child support was nothing out of the ordinary.

Fast forward to 2009. A Pennsylvania Superior Court last month ordered the sperm donor, who lived in the state, to also pay child support for the two children. This means that three adults are legally obligated to support one child.

This situation is unique. Arthur Leonard, a professor at New York Law School, said that he's "unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation."

There's two reasons that the children ended up with more than two adults having to pay child support:

1. Penn has no law that shields sperm donors from parental responsibility. Other states have adopted the Uniform Parentage Act, which does.

2. The lesbian couple did the artificial insemination informally, at their home without any legal agreement. If they had done it instead with an agreement that spelled out the rights and obligations of the sperm donor, then a court could have enforced the agreement instead making the donor pay child support.

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One of the most common arguments I hear against gay parenting is that same sex couples who want to have children are being selfish. The argument goes that if they really cared about the child, they wouldn't force the child to grow up with two same sex parents instead of a mother and father.

Julie Shapiro, professor at Seattle University Law School, had an interesting take on the argument. She said that the question should not be whether having kids is selfish, but whether it's responsible:

The real question, I think, is not whether a person is acting selfishly but whether a person is acting responsibly. I might want to have a child when I am twenty years old, but if I have no way to support myself and my child, lack a strong social network, and am not reasonably mature myself, then I think my decision to have a child and become a parent would be irresponsible. If, however, I wait a few years, find myself a good job with health care benefits, build myself a support network and so on, I might well be able to raise a child. At that point I might responsibly indulge my selfish desire to have a child.

Julie makes a good point, because the question of responsibility applies to all potential parents, gay or straight or single. After all, heterosexual parents are not necessarily responsible ones. See here, here, here, here, here, for examples.

So are gay couples raising children being irresponsible?

Professor Shapiro suggests that people choosing to raise children are resposible when it's likely that the children will thrive. If it's unlikely, then raising kids would be irresponsible. While opponents of gay parenting might say that having same sex parents is detrimental to kids, study after study find that kids with same sex parents end up no worse than kids with opposite sex ones.

If there's no intrensic harm to kids from being raised by gay parents, then the responsibility question should be answered on a case by case basis for any gay couple wanting to have kids, just as it is for heterosexual couples and single parents.

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Rosie O'Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more. Rosie and Kelli live in New York, but married in California.

Their split shows many of the issues that come up during a same sex divorce.

Getting Divorced

Only a few states and countries allow gay marriage. So a lot of couples take a trip to get married out of state and then go back to where they live.

But if their marriage doesn't work out, they may have trouble getting divorced.

As an example, Emma Ruby-Sachs, an attorney with Ruby & Shiller, writes at the Huffington Post about what would happen for a hypotethical Montana couple that goes to Toronto to get married:

As a resident of Montana, you cannot get a divorce in Toronto. Toronto, like most states with the exception of Nevada and a few others, has a year-long residency requirement for a divorce. In Montana, your relationship was never legally any different from two roommates. And so, you must complete a divorce, with all its entanglements and difficulties, without the assistance of the law.

Because Rosie and Kelli live in New York, they'll be able to get divorced. Though New York doesn't allow gay marriages, they do recognize them from other states for the purpose of getting divorced.

Custody and Visitation Issues

Rosie and Kelli have three adopted children and one child born to Kelli through sperm donation. If Rosie and Kelli had lived in a state that disallowed second parent adoption, only Kelli would have legal rights to the child she gave birth to.

Without being the legal parent, Rosie's visitation rights to Kelli's child would also depend on what state they lived in. In Montana, for example, the highest court

that non-legal parents do have visitation and decision rights to a child from a same sex relationship.

Alimony

When married straight couples get divorced, one person often has to give the other person spousal support payments. That way the person with less income doesn't suffer an immediate drop in lifestyle. Along with spousal support, the person with more income would also have to give child support if the other person keeps custody of any children.

But if a same sex couple can't get divorced, then the person with lower income will lose these legal protections. It's possible, for example, that someone who left their job to take care of the house and family will not get any help from their ex-partner to help maintain his or her lifestyle.

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Chris Johnson reported Monday in the Washington Blade about a bill that would withhold federal funding from states that disallow gay adoption [PDF]:

The bill, introduced by Rep. Pete Stark (D-CA), would keep states with adoption policies that  discriminate against gay people from getting any federal child welfare funds:

States with explicit restrictions on adoption that the pending legislation would affect are Utah, Florida, Arkansas, Nebraska and Mississippi. Florida, for example, has a statute specifically prohibiting gays from adopting, and in Arkansas, voters last year approved Act 1, which prevents unmarried co-habitating couples, including same-sex partners, from adopting children.

The bill has no co-sponsors. Furthermore, until it gains more support in Congress, the Human Rights Campaign, the nation's largest gay rights organization, won't spend money to help it pass.

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The Fifth Circuit of the U.S. Court of Appeals this week heard arguments in a case about out of state recognition of gay adoptions.

The federal district court ruled in favor of the gay couple [PDF] late last year.

Two men jointly adopted in New York a baby born in Louisiana. But when they tried to get a new birth certificate in Louisiana, the state refused. Instead, the state said that it doesn't have to recognize adoptions from other states that it wouldn't allow itself. Because Louisiana doesn't allow joint gay adoptions, the state said the two men were out of luck.

In the meantime, some Louisiana lawmakers are trying to preempt a ruling that would make the state recognize gay adoptions from other states. Rep. Jonathan Perry introduced a bill that would make couples who adopt a Louisiana born child follow Louisiana law when it comes to birth certificates. The law hasn't yet passed.

Even if it does, it may not matter. Ken Upton of Lambda Legal, who is representing the two men, argued before the court that Louisiana must recognize the New York adoption because the full faith and credit clause of the U.S. Constitution should make the state respect judicial adoption decree from other states, including New York.

If the appeals court rules in favor of the two men based on this argument, then it won't matter if a Louisiana state law says otherwise. The federal law will trump.

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The Montana Supreme Court on Tuesday upheld the parental rights [PDF] of the non-biological parent of a separated lesbian couple.

What Happened

The couple had raised their child together for three years. Yet because Montana, like many states, doesn't let same sex couples adopt a child together, only one of two women legally adopted the child. After the couple separated, the woman who legally adopted the child said that letting her ex-partner have parental rights would interfere with her own constitutional right to parent her legal child.

The Court disagreed. Instead, the Court said that parental rights should be based on the existence of a parent-child relationship, which both women had.

Why It Matters

Because many states allow single, but not joint, gay adoption, the Montana decision could eventually impact the parental rights of non-legal parents in these other states. While none of these states has to follow what Montana does, their high courts may still be influenced by what the Montana Court said. However, the particular laws of each state will more affect those courts than decisions from other states.

Further, while in this case the child was adopted, the decision could also affect the rights of a non-biological parent in a same sex relationship with a biological one.

Even in Montana, however, the decision does not give the non-legal parent in a same sex relationship the same parental rights as the legal parent.

Instead of equal rights, the Montana decision said that the non-legal parent has only a "parental interest." Julie Shapiro, a professor at Seattle University Law School, points out that a "parental interest" is vague:

I’m not sure what that is or what it means. Is [the non-legal parent now] a legal parent? She has an equal voice in decision making, which suggests some equality with [the legal parent]. But it simply isn’t clear to me.

I expect further litigation in Montana or elsewhere about the limits of "parental interests" of non-legal parents.

Finally, be careful what you read. Some political blogs have mischaracterized the decision as treating non-legal parents equal to legal parents. Look at Queerty's post, for example, titled, "Montana Supreme Court's Amazing Adoption Decision: Gays Are Equal Under the Law." It's important not to treat every pro-gay decision as a proclamation of equality or as an advancement of gay rights, because the effects of these decisions are often much more limited.

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Because gay couples can't naturally have children, lots of them want to adopt. When they do, they'll be just as good parents as straight couples.

Patricia Reaney reported in Reuters this past Friday what researches said of multi-state study on gay adoption:

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement. "We did find, however, that age and pre-adoptive sexual abuse were," she added.

Despite the study's results, not everyone thinks gay couples should adopt. Jon Dougherty says in the World Net Daily that same sex adoption is bad for kids: "[R]aising kids in anything other than traditional mom-dad households is what has led to so many of today's mounting teen problems."

Ultimately I expect that studies with competing claims to come out in the future. Special interest groups in favor or against gay adoption will fund research that publishes a favorable result.

In the meantime, the research will be used by parties in litigation challenges gay adoption laws. In the Florida adoption case, for example, both sides cited research that gay couples are either as good or not as good parents as straight couples.

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The American Psychology Association last week published a comprehensive study on whether having same sex parents affects child development. The conclusion: it does not.

The research, by Dr. Abbie Goldberg, differs from previous publications by conducting a full analysis of all previous research on the well being of children with gay parents. While other studies have summarized the prior research, Dr. Goldberg is the first to write a book-length review of it.

Not only that, but the study broadens the scope of research on gay families, as the Windy City Times reported yesterday:

Also included are topics rarely discussed in the research studies to date, such as: divorce/relationship dissolution in lesbian/gay-parent households; the perspectives of non-heterosexual children of lesbian/gay parents.

I think that this kind of research, combined with upcoming 2010 census numbers on same sex families, will make families with gay parents seem more normal and less threatening. This normalcy will help shape laws to accommodate these families.

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Public support for gay marriage has increased in every state over the last ten years. However, Katherine Franke, a professor at Columbia Law School, notes that public support increases most in states where cases about same sex marriage have reached the highest court:

In states where same-sex marriage cases have reached the top courts, residents support same-sex marriage at higher levels than in states with no court rulings. . . . The three states that have had pro-gay decisions in place the longest – Massachusetts, Vermont and New Jersey – have had steeper rises in support of gay marriage than the national average.

I think there's a couple reasons  why public support is higher when marriage laws are challenged.

First, judicial challenges raise public awareness of the issue. When a case reaches the state's highest court, It puts the topic in everyday conversation, forcing people to take sides. Perhaps people don't want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.

Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.

I'm interested in whether public support is also more likely when laws other than marriage are challenged. Would public support for gay marriage increase with court cases about gay adoption and domestic partnership rights?

I suspect it would.

Such cases, even when not about marriage itself, probably put all the "gay rights issues" in public conversation. Further, cases about these side issues could reflect situations where state constitutions make gay marriage laws difficult to change judicially.

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The Florida district court of appeals last week heard arguments on a case challenging the state's gay adoption ban. The state said that the ban is justified because gay couples are more prone to domestic violence, psychiatric disorders, and breakups.

These arguments may sound familiar--they are the same ones used by opponents of same sex marriage. In particular, gay marriage opponents say that higher rates of separation in gay relationships threaten marriage as an institution.

Self-Fulfilling Prophecy

But the arguments against gay marriage only perpetuate the statistics against same sex couples. The inability for gay couples to get married increases the risk of domestic violence and breakups, the same aspects used to deny them marriage in the first place.

Unable to get married in most of the country, gay couples are stuck in an endless state of cohabitation. And as Fox News reported in July, a study published in the Journal of Family Psychology this year showed that cohabitation without getting married creates commitment problems:

Those who moved in with a mate before engagement or marriage reported significantly lower quality marriages and a greater potential for split-ups than other couples.

While this study is recent, the downsides of cohabitation have long been documented. Research consistently shows that cohabitation relationships lead to increased domestic violence, infidelity, and financial strife.

Because gay couples can't marry in most states, the most they can usually do is live together. Even when their state, through domestic partnership laws, gives them some marital rights, the lack of a full union still makes their relationship a glorified cohabitation.

As a result, Florida has created the very circumstances it uses to justify its gay adoption ban. The state has (1) put a ceiling of cohabitation on gay relationships and now (2) argues that the effects of this ceiling mean that gay couples shouldn't adopt.

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The North Carolina Court of Appeals upheld this week a county judge's approval of a second parent adoption.

As in many states, North Carolina law doesn't say specifically that second parent adoption or joint adoption by gay couples is legal. However, gay couples in these states can still adopt when a county judge approves. An article today in the Raleigh News & Observer explains:

State law does not specifically allow or prevent adoptions by gays or lesbians. [The] adoption, as well as a couple hundred others like it over the past five years, was possible because a handful of judges waived certain provisions of the state law governing adoption.

The ruling puts a state-wide stamp of approval on what is traditionally a process that varies by county. In many states, for example, same sex couples who live in a county that doesn't allow adoption by gay couples must move or set up a fake residence in a county that does allow it before doing the adoption.

The North Carolina Court of Appeals decision affirms, at least for that state, that county judges have the leeway to grant gay adoptions when state law is silent on the issue. If courts in other states follow this court's lead, then couples can feel more confident in obtaining one judge's approval for their adoption in a state where other judges might deny it.

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Several news outlets reported yesterday about a brief filed the Department of Justice that defended the Defense of Marriage Act while at the same time called for its repeal.

Part of the brief pointed out that the government was not against gay adoption: "[T]he United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing."

Chris Geidner, publisher of the popular Law Dork blog, questioned the impact of this language on a Florida adoption case on appeal:

The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people. 

I don't think the brief will have that much of an effect:

• The DOJ statement at most is a statement of policy. But the Obama administration has already made several statements in favor of DOMA repeal, so this is nothing new.
• A statement in a DOJ brief has no bearing on whether or not a Florida law is constitutional.
• On the totem pole of statements that might influence a state court's decision about a state law, a policy statement in a DOJ brief about a national law is very low.

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The recently enacted Domestic Partnership Judicial Determination of Parentage Act of 2009 makes the domestic partner of a woman who gives birth to a child through artificial insemination the legal parent of that child. Because of the law, a lesbian couple in D.C. does not have to do an expensive second parent adoption--both the biological mother and her partner are automatically the legal parents.

But the law does nothing for gay men.

Instead, the domestic partner of a man who donates sperm to a surrogate mother must adopt the child. This different treatment occurs because of two reasons:

• Surrogacy is illegal in D.C. Gay male couples wishing to raise a child through surrogacy must do so in a different jurisdiction.
• The act itself only applies to the domestic partner of a woman giving birth to a child.

In fact, the law lets everyone except gay male partners skip adoption procedures, including men in an unmarried heterosexual relationship.

The problem with the law is not just that lesbians in D.C. will have an easier time than gay men when it comes to avoiding adoption procedures--it also creates a precedent for this differential treatment.

As the D.C. law is the first of its kind, other jurisdictions wanting to ease adoption procedures for same sex couples could mimic the exclusion of gay male couples. Already, a similar law takes effect in 2010 in New Mexico. In the same way, an Oregon appeals court has said that domestic partners of lesbians, but not gay men, can avoid adoption procedures.

If these kind of laws continue to exclude male parents of children born through surrogacy, gay men in a domestic partnership will be forced to undergo the lengthy and expensive second parent adoption procedures if they both want to be legal parents of their children.

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In 2007 the Utah Supreme Court said that a lesbian woman who was the biological mother of a child could stop her former same sex partner from having any relationship with the child. The couple had raised the child together for years, but because the former partner did not adopt the child, the former partner had no rights.

The case was about gay parents. But now that same case has influenced the rights of straight parents as well.

Yesterday, the Utah Court of Appeals denied a stepfather the right to visit his former wife's biological child. The Desert News reports why:

In its ruling Thursday, the court of appeals cited the Utah Supreme Court case of Jones v. Barlow, in which justices concluded that a legally fit parent has the authority to refuse visitation of a non-parent, regardless if a court finds it is in the child's best interest.

Why didn't the stepfather do a second parent adoption to secure his legal rights to the child? The article explains:

Adoption of the children by a stepparent is an option, but [University of Utah law professor Linda] Smith said often the cost of hiring an attorney and paying legal fees puts that protection out of reach for many low-income people.

While Professor Smith raises an important point, I bet the stepfather now regrets his decision to save money by not doing a second parent adoption. Especially in same sex families, couples should not skimp when it comes to protecting their family rights.

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Dan Schwartz, publisher of the Connecticut Employment Law Blog, recently started a weekly feature that focuses on the basics of employment laws in Connecticut. Shamelessly stealing this idea, once a week I'm going to talk about the basics of same sex estate planning and family law. 

I hope this feature will help gay couples just starting to learn about how to protect their families and also refresh attorneys helping gay couples locally.

First up: second parent adoption.

What is it?

A second parent adoption is when an unmarried parent adopts her partner's biological or adoptive child. This adoption gives the second parent full legal parental rights.

Where can it be done?

Not every state allows gay partners to do a second parent adoption. Some states allow it completely, while in other states it varies by county. Check out the second parent adoption laws in your state [PDF].

Why is it important?

Some people in a domestic partnership assume that taking care of their partner's child gives them legal rights to that child. This is a mistake. The only sure way to secure these legal rights is through a second parent adoption.

Family Fairness, a popular blog about same sex family rights, explains why second parent adoptions are vital:

Adopting your partner's child is an important step for gay and lesbian couples to take regardless of your state's position on marriage or civil unions. . . . One should never assume that their relationship will have the same legal footing as their heterosexual friends'.

Same sex couples should think about a second parent adoption for three reasons:

1. To protect the original parent.
2. To protect the rights of the adopting parent.
3. To protect the rights of the child.

Without a second parent adoption, the original parent can't rely on the second parent's legal duty to provide for their child. This is especially important if the partners break up--a second parent adoption can make the second parent help provide for the child even after the divorce or domestic partnership dissolution.

Of course, this works both ways. The second parent will also feel more secure in his legal right to care for the child. If the couple breaks up, the second parent will still be able to have a relationship with the child.

Finally, the child herself is guaranteed the legal support of two parents, regardless of what happens to the couple's relationship.

How does it work?

Second parent adoptions work in one of two ways:

• Normal adoption procedures
  
• Stepparent adoption procedures

Most states follow normal adoption procedures. This means the adopting parent will be treated as an unrelated person. Expect things like home visits by social workers, parental fitness tests, court appearances, and lots of paperwork.

A few states treat second parent adoptions as stepparent adoptions (where someone adopts their legal spouse's child). These are a lot quicker, cheaper, and easier to get done, because the adopting parent is treated as the original parent's spouse.

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A Florida custody battle highlights why gay couples must consistently prepare for legal challenges to their family rights. A lesbian couple in Florida retained custody of their child after the child’s sperm donor, a gay man with a partner, sued for custody rights. The male couple was helping raise the child, but the lesbian couple wanted to move out of state and take the child with them.

The lesbian couple thoroughly documented their role as primary caregivers. The sperm donor and his partner did not. The lesbian couple won.

Gay couples cannot conceive a child on their own. Instead, couples that want to raise a child must choose from a small variety of alternative options. One of these options involves finding a sperm donor (for lesbian couples) or a surrogate mother (for male couples). This option appeals to gay couples because it lets one person in the couple be the biological parent.

But with that appeal comes risk. The sperm donor or surrogate mother may later sue the gay couple for custody or visitation rights. When straight couples raise children through sperm donation or surrogacy, the non-biological parent adopts the child through second parent adoption. Yet many states, including Florida, do not allow second parent adoption for gay couples. As a result, gay couples in these states should use alternative methods to protect custody of their child from potential legal attack from the other biological parent.

In the Florida case, the couple that won the lawsuit thoroughly documented their role as primary caregivers. Without the right to second parent adoption, their preparation allowed them to keep custody of their child.

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