What kinds of protections exist to prevent discrimination against LGBTQ prospective parents seeking to adopt or serve as foster parents?
Well, the bottom-line reality is that no law and no lawyer can protect you from homophobia. . The best way to approach an adoption process is to find gay-friendly adoption professionals. And if you connect with an attorney who knows about these things, they’ll connect you with an agency that’s going to have the cultural sensitivity and the experience of working with gay couples. You’re going to be looking for an adoption agency to help you with an adoption — many states require that you start with an agency and get a home study. You will want to interview the agency ask them, “Do you work with openly gay couples? How many children have you placed in gay and lesbian homes?” I think it would be a mistake—although many people are forced to —to be closeted during the adoption process because if you’re asked and you deny it, it can backfire. If the information is discovered later, the placement may fall through. That’s why it’s so important to be working with professionals who understand what the situation is in your jurisdiction.
In instances where a couple adopts a child in a marriage equality state and they move to a state that no longer recognizes their marriage; is it necessary for them to file for adoption in that state, or does the adoption follow them to their new home state?
It’s interesting you ask that because, generally speaking, an adoption that is finalized in another state is entitled to full faith and credit in any other state under the U.S. Constitution. The U.S. Constitution requires that one state must respect the judgments of another state’s courts and an adoption decree is a judgment. However, that does not protect people from homophobia. Just last month, a renegade decision from an Alabama court nullified a George adoption. A lesbian couple had a child and went through a co-parent adoption in Georgia. When they broke up, the birth mother moved to Alabama and basically asked the court to invalidate the second parent adoption from Georgia. Amazingly, the court found that Georgia did not have subject matter jurisdiction and found that the adoption was null and void. This is, of course, a terrible result for the other mother. This case may be appealed but it is an unfortunate example of the obstacles LGBTQ people face when they try to assert their rights.
So, are you saying the parental rights of that second parent are no longer acknowledged in Alabama?
Exactly. I don’t believe what they’ve done is legally sound; I think the decision is incorrect but until they appeal and win, that is the case. So the estranged former partner can no longer have contact with her children. This court system is extremely conservative and even if this case is appealed to the higher court, it’s unclear that the decision will be overturned. So these things do happen and people really need to be aware that in some jurisdictions their rights as parents are very tenuous. Fortunately, there are many good lawyers working on these things all over the country, and little by little, things are changing. But it is important to be aware that in many jurisdictions a non-legal parent has little or no legal standing to seek custody.
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