When a same-sex couple has children together, the parents unfortunately do not enjoy all the same rights that heterosexual couples do. Although nothing prevents the couple from acting as joint parents while they are in a relationship, many same-sex couples run into trouble if they later decide to break up. Since the law is not set up to protect same-sex families, usually only one parent has a legal relationship – either biological or adoptive – with the child.
Some families try to get around this hurdle by pursuing “second parent adoptions” that allow that second parent to adopt the child, essentially securing legal recognition of the fact that the child either has two moms or two dads. While second parent adoptions are an emerging tool, they still exist in a legal grey area. Most states, including Arkansas, do not have laws that recognize second parent adoptions. However, judges in some areas of the United States are beginning to allow the adoptions. When a couple breaks up, sometimes these adoptions end up being challenged in the appellate courts.
Once such challenge recently occurred in Georgia. The case involved a lesbian couple who had lived in a marriage-like relationship. During the course of the relationship, one partner became pregnant by artificial insemination. After the couple’s child was born, the nonbiological mother requested and secured a second parent adoption in Fulton County. The couple did not live in Fulton County, but their attorney thought it would be easier to be granted the non-traditional adoption there.
Several years later, the couple broke up. At that time, the biological mother wanted to have full custody of the child, so she sought to have the second parent adoption nullified. She claimed that since Georgia has a constitutional ban on same-sex marriage, the state should not recognize adoptions by a biological parent’s same-sex partner.
The case went all the way to the Georgia Court of Appeals, which ended up siding with the nonbiological mother. Ultimately, though, it was a procedural issue and not a policy issue that tipped the case in her favor. The court avoided taking a position on whether second-parent adoptions should be legal in general.
Still, the case goes to show that non-traditional families do have options to protect their rights, even when the law may appear unfriendly.
Source: GA Voice, “Ga. appeals court upholds second-parent adoption in lesbian ‘divorce’ case,” Dyana Bagby, July 18, 2012.
For more information about protecting the rights of same-sex families in Arkansas, please visit our Arkansas Same-Sex Couple Family Law page.