GLBT Law 101: Adoption

Sean Lemieux
Attorney at Law


Millions of children across the country are being raised by lesbian and gay parents. In a significant number of these homes, the children are being raised by same-sex couples in a two parent household. Unfortunately, all too often the children have a legal relationship with only one of the parents. Sometimes the children are the biological children of one parent. Sometimes the children have been adopted by only one partner because joint adoptions for same-sex couples can be difficult or prohibited, depending on the state. Even though families where only one parent is a legal parent can function quite well, there is significant risk to the children. If the second parent should die unexpectedly, the children have no automatic right of inheritance and are not entitled to Social Security survivor benefits. If the adults’ relationship ends, the children may not be entitled to financial support from the second parent or may have their relationship with their second parent terminated entirely. Obtaining a second parent adoption can eliminate these risks and provide much needed security for the children involved.

Although it may come as a surprise to many people, Indiana is among the more progressive states when it comes to lesbians and gays adopting children. Countless lesbians and gay men have adopted children as single parents. Even more commonplace are second parent adoptions where the partner of a child’s biological or adoptive parent adopts the child as a second parent. Following the adoption the child has a legal relationship with both parents. Second parent adoptions have been done quietly in Indiana by a couple of judges for years. Fortunately, in 2003 and 2004 these adoptions became much easier. In 2003 the Indiana Court of Appeals said that an adoptive mother's same-sex partner could also adopt the children as a second parent without affecting the parental rights of the first mom. In 2004 the Court reached the same conclusion in another case, this one involving the biological children of the first mom. In both cases the children now have the security of two legal parents.

The road to adoption is now without its bumps, however, and parents should have knowledgeable help. While the law is now clear and these cases should be handled no differently than typical step-parent adoptions, the adoption court still has considerable discretion in granting or denying these adoptions based the evidence presented. A court inclined to prohibit an adoption because of the parents' sexual orientation could conceivably find other reasons to deny the adoption in the absence of good evidence. Such a denial could be exceedingly difficult to get overturned on appeal. Parents should consider at least two things in preparing for these adoptions. First, one of the most important aspects of these adoptions is to select a home study agency experienced in dealing with, and who don’t have a problem with, same-sex couples. Adoption courts tend to rely heavily on the home study. Second, in cases where there is a concern that the court will have issues with the parents' sexual orientation, parents should make sure their attorney is familiar with evidence on sexual orientation and child rearing. A number of scientific resources are available demonstrating that sexual orientation has no affect on one's ability to be a good parent, nor does a parent's sexual orientation impact a child's well being. Such evidence should not be necessary, but it’s best to be well prepared.

There are few options for lesbian and gay families in Indiana who want to be recognized as families. Adoption is one simple way to obtain some degree of legal recognition and to provide much needed security to the children being raised in same-sex families.


Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.

This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.