Securing Legal Ties for Children Living in LGBT Families

Read the full LGBT families legal ties report (pdf)

Read the original LGBT families column and report (pdf)

In October 2011 the Movement Advancement Project, the Family Equality Council, and the Center for American Progress released the report, “All Children Matter: How Legal and Social Inequalities Hurt LGBT Families.” The report offers one of the most comprehensive portraits to date of LGBT families in America and details ways in which antiquated laws and stigma make it harder for children with LGBT parents to have their needs met in three areas: stable, loving homes; economic security; and health and well-being.[1]

This column provides a snapshot of a new report, “Securing Legal Ties for Children Living in LGBT Families,” which is the third in a companion series to the “All Children Matter” report. Focusing specifically on the impact of state marriage and parenting laws on children living in LGBT families, this companion report provides a framework for state policymakers to draft, pass, and enact new laws that protect children living in contemporary family structures. It also includes recommendations for amending, repealing, or overturning archaic and discriminatory laws and policies that leave children without the security of legal ties to their parents, or without the loving, “forever” homes that all children need and deserve.

In this column, we first provide an overview of the diversity of LGBT families: who they are, where they live, and the economic realities they face. The next section highlights how the multiple paths to parenthood for LGBT parents intersect with archaic laws that often leave children without legal ties to both parents. Then we focus on how this lack of legal ties harms children being raised in LGBT families. The column concludes with a high-level summary of policy recommendations for designing comprehensive state-level parental recognition laws.

Note that the main report provides much more detail than we present in this column. The main report’s appendices also provide a state-by-state summary of the status of existing legislation, and model language that can be used to amend and replace laws that fail to effectively protect children raised in LGBT families. Many of the proposed changes also benefit a number of other family structures, including children raised by unmarried heterosexual parents and children raised by extended family members.

LGBT families are part of the American fabric

America’s families are changing. Today, just 69 percent of children live with married, heterosexual parents, down from 83 percent in 1970. Between 2 million and 2.8 million children are raised by lesbian, gay, bisexual, or transgender, or LGBT parents, and that number is expected to grow in the coming years.

According to the U.S. Census Bureau, 24 percent of female same-sex couples are raising children and 11 percent of male same-sex couples are raising children. More than one-third of lesbians without children want to have children, and three-quarters of bisexual women without children want to have children. Of gay men who have not had children, 57 percent want to have children as do 70 percent of bisexual men. Of transgender Americans, a recent survey finds that 38 percent of those being surveyed identify as parents.

Geographically diverse

Although you might expect that LGBT families live in major metropolitan areas or in states with policies friendly to LGBT people, LGBT families are geographically dispersed, living in 93 percent of all U.S. counties. Although many same-sex couples live in states such as California and New York, same-sex couples are most likely to raise children in Mississippi, followed by Wyoming, Alaska, Arkansas, Texas, Louisiana, Oklahoma, Kansas, Alabama, Montana, South Dakota, and South Carolina. It is also important to note that half of these are states where more than one in four children live in poverty and all of these states are also among the very lowest in terms of LGBT legal equality.

Racially and ethnically diverse

LGBT families are more likely to be families of color than families headed by married heterosexual couples. Same-sex couples where at least one partner is a person of color are more likely to be raising children than white same-sex couples. Of same-sex couples raising children, 28 percent have at least one partner who is a person of color, compared to 24 percent of married heterosexual couples with children. Data from the 2010 Census indicates that there are an estimated 28,500 binational same-sex couples in the United States (couples where one member is not an American citizen). This data also shows that a quarter of binational male same-sex couples and 39 percent of binational female same-sex couples are raising an estimated 17,000 children.

Lower income, higher poverty

In 2010, 22 percent of all American children lived in poverty, with the same percentage of children living in “food insecure” households (homes in which families worry about having enough food). Contrary to stereotypes, children raised by same-sex couples are twice as likely to live in poverty as those raised by married heterosexual parents.

Options for and challenges to securing legal ties for children in LGBT families

When a child is born to or adopted by a married heterosexual couple, there are several sets of laws that help guarantee that child is generally recognized by all 50 states as the legal child of both parents. By contrast, a child with LGBT parents faces a climate of uncertainty. Because the lack of legal ties is at the very core of many of the challenges LGBT families face, the full report  explains in detail how this lack of legal ties occurs, beginning at the very first moment that a child joins the family. In this column we offer a high-level summary of how legal ties can be established and some of the obstacles to doing so.

LGBT foster families

An estimated 14,000 foster children, or 3 percent of all foster children, currently live with lesbian or gay foster parents. Same-sex couples who become foster parents are more likely to be families of color than heterosexual married foster parents. An estimated 105,000 gay men and lesbians are adoptive parents to a child under the age of 18. Research also suggests LGBT parents may be more willing than heterosexual parents to adopt children with special needs, who are among the most difficult to place.

Yet as of 2010, there were more than 408,000 children in foster care, and 107,000 of these were awaiting adoption. Research clearly shows that children who lack permanent homes are more at risk of major difficulties in transitioning to a healthy adulthood. But despite the importance of permanent homes, there is a significant shortage of quality homes for children, and children may face years of instability before they are adopted.

States in need of adoptive homes for waiting children consistently report that one of the biggest obstacles is finding interested, qualified families who want to adopt. One source of potential adoptive homes is LGBT parents. Research suggests that over one-third of lesbians would like to have children, as would more than half of gay men.

But in some cases prospective LGBT parents face state laws that are either ambiguous or formally restrict fostering by same-sex or unmarried couples. In other cases, hostile, unwelcoming, or unknowledgeable agencies and frontline workers may reject LGBT applicants even if state law or policy is silent about or supportive of LGBT adoption and fostering. The result is needless harm to children who may face years of state care, frequent relocation to different foster homes, and the absence of stability in their lives.

Individual and joint adoption by LGBT families

Adoptions are widely recognized by most governmental officials as well as by people working in schools, hospitals, and other institutions where recognizing parent-child relationships can be crucial. Being able to adopt strengthens a parent’s ability to establish a legal parent-child tie when no blood relationship exists.

When a child is adopted, a court issues an “adoption decree” or “adoption judgment” that establishes a legal parent-child tie. These court-ordered judgments are protected by the U.S. Constitution’s “full faith and credit clause,” which requires states to respect other states’ court judgments and protects families nationwide.

Yet this firm legal principle is under increasing attack. A federal appellate court, for example, recently upheld the right of Louisiana to name only one parent on the birth certificate of a Louisiana child adopted jointly by gay parents from New York. Joint adoption allows a couple to simultaneously adopt a child, creating legal ties for the child to both parents from the outset. While all states allow married heterosexual couples to adopt jointly, same-sex couples (and unmarried heterosexual couples) face uncertainty in many states and jurisdictions, and state laws effectively ban same-sex couples from adopting jointly in five states.

In addition to one outright ban on adoption by same-sex couples, some states bar individuals from adopting if they are unmarried and living with a partner (sometimes called “cohabitating” or “cohabiting”), and some states give priority to married couples. These policies effectively ban or penalize adoption by same-sex couples, who generally cannot marry in their state.

Even where states do not restrict adoption by same-sex couples, LGBT parents in many states face discrimination from child welfare agencies or judges, who may block their ability to adopt based on personal views. While the actual experience of same-sex couples seeking to adopt can vary even in states where laws and policies are clear, the situation can be even more unpredictable in states that lack clear laws or in states where laws are silent.

The upshot is that across the country, same-sex couples hoping to expand a family through adoption face the risk that both partners will not be able to become the legal parents of their child.

Stepparent and second-parent adoption

Stepparent adoption is a simplified process that can be used when the legal parent of a child marries or remarries. It allows a new spouse to become a full legal parent without terminating the rights of the existing legal parent, and it aims to give permanent legal and financial protections to children who rely emotionally and economically on an adult caregiver who has joined the family.

The procedures for a stepparent adoption are usually streamlined and simpler than for other types of adoptions and do not require a home study, though laws vary by state. (A home study is a detailed report on a potential adoptive family or parent usually prepared by a trained and licensed social worker). The simplicity of this process for blended families makes this one of the most common types of adoption in the United States.

Because stepparent adoption is usually available to married couples only, LGBT families can only use the process if they live in one of the 15 states that offer comprehensive relationship recognition or the freedom to marry. The term “stepparent” traditionally applies only to married people, but same-sex couples in comprehensive domestic partnerships or civil unions may also be able to use stepparent adoption law to adopt their children.

A few states also offer “second-parent adoption,” which is similar to stepparent adoption but can be used by both unmarried same-sex and unmarried heterosexual couples. It allows the partner of a legal parent to adopt that parent’s child while leaving the first parent’s legal rights intact. Unlike a stepparent adoption, a second-parent adoption does not require the parents to be married. This makes a second-parent adoption an option even in states without comprehensive relationship recognition for same-sex couples, though in practice only a handful of states offer this solution.

When available, however, second-parent adoptions are generally more expensive, intrusive, and time-consuming than a stepparent adoption (with a process ranging from several months to over a year, often including a home study). Families may be unable to afford to secure legal ties for the second parent or face delays due to cumbersome procedures and home-study requirements. As a result, children can still be left without legal ties to one parent.

In 19 states and the District of Columbia, same-sex couples can obtain either a stepparent adoption or a second-parent adoption. In six states, law, policy, or court decisions specifically render second-parent adoption unavailable: Kentucky, Nebraska, North Carolina, Ohio, Utah, and Wisconsin.

In the remaining 31 states, there is no statewide mechanism to ensure that same-sex partners can become legal parents using stepparent or second parent-adoption. For states that do not have laws permitting second-parent adoption statewide, courts in some jurisdictions still grant second-parent adoptions. In other states, there is no clear statute or court precedent for second-parent adoptions, making the prospect of getting one unknown.

Other legal paths

The full report also includes information on several other ways families can establish legal ties as well as the obstacles that current related policies create for LGBT families. These include donor insemination laws (including parental presumption and consent-to-inseminate provisions), de facto parenting (when someone in the child’s life functions as a parent even if they haven’t legally established the relationship), and parentage judgments (which allow parents to keep their kids if they travel or move to a state that is particularly hostile to gay parents).

How lack of legal recognition harms children

Substantial problems can arise when children lack legal ties to the adults who are raising them—whether they are grandparents, aunts or uncles, LGBT parents, or others.

Children’s health and wellness in jeopardy

Antiquated parenting laws mean LGBT parents may be unable to obtain health insurance for their children, be barred from making medical decisions for them, and may be denied the ability to visit them in the hospital.

Restricted access to health insurance: The majority of American workers obtain health insurance as an optional benefit through their employer or the employer of a family member. But an LGBT parent may be unable to obtain benefits for their child under employer-sponsored plans if they are not legally recognized as the parent. When LGBT parents cannot enroll children in an employer-sponsored plan, they must obtain private health insurance or go without.

Limits on medical decision-making and hospital visitation: With few exceptions, minors are not considered capable of making major medical decisions on their own and are not allowed to sign legal documents designating decision-makers. As a result, state law generally requires hospitals and medical providers to obtain a legal parent’s consent for medical treatment. An LGBT parent who is not legally recognized (or anyone who functions as a “de facto” parent but has not been legally recognized as such like a family friend or extended relative raising a child) will often be unable to make routine or emergency medical decisions for a child. Even when such families draw up legal documents, parents may not always have the paperwork on hand when a medical emergency arises. If a child living in an LGBT family is rushed to the hospital, a parent without legal ties to her child could also be denied the ability to visit and comfort her child.

Children wrested from parents when relationships dissolve

When families break up, custody battles can ensue, leaving courts to make decisions about several key aspects of a child’s care including physical custody, legal custody, financial obligations, and visitation rights. Under these circumstances a child without legal ties to both parents is at risk.

There are many circumstances in which a child is raised by someone who is not a legal parent. A child might be raised by a grandparent, uncle or aunt, an LGBT parent without legal ties, or another unrelated person who is functioning as a parent. But some state laws only allow legal parents, stepparents, or other identified relatives to file for custody or visitation rights.

The result is that children may be cut off from someone they have come to know as a parent, who has raised them since birth and who may be the most appropriate caregiver. On the flip side, in most cases, the legal system cannot require a functioning parent who is not a legal parent to provide child support, putting the child at economic risk.

Children denied protections when a parent dies or becomes disabled

The death or disablement of a parent can be devastating for a child, and children with a parent who is not legally recognized face even greater trauma. As with custody decisions, if the legal parent dies or is no longer able to provide care, the other parent may be denied custody even if he or she has acted as a parent for the child’s entire life. And if a parent who is not legally recognized dies or becomes disabled, children can be denied Social Security benefits, inheritance, and the ability to sue for wrongful death.

One parent denied custody when the other parent dies

State laws on child custody in case of death vary, and how a court ultimately rules in a custody decision will depend on state parentage law and the judge’s interpretation of both parenting rights and what is in the best interest of the child. In states with de facto parenting laws, courts may recognize the same-sex partner of a deceased legal parent if that person shows that he or she has functioned as a parent. Not all states have de facto parenting laws, however, and some laws limit the rights of de facto parents to visitation only. Some states also prioritize child placement with a legal parent, stepparent, grandparent, or other legal relative, which allows little leeway for a judge to grant custody to an unrelated primary caregiver.

Children denied disability and survivors’ benefits

Although most people think of Social Security as a benefit program for older Americans, the Old-Age, Survivors and Disability Insurance program, which the Social Security Administration administers, provides more benefits to children than most other social programs. When a worker who is entitled to Social Security benefits becomes disabled, dies, or retires, the worker and his or her spouse and unmarried children under the age of 18 may be eligible for benefits. Of the 4.3 million children receiving OASDI benefits, the majority (87 percent) receive benefits as a result of the disability or death of a parent.

OASDI benefits provide important financial lifelines for children, particularly children of color: Social Security benefits lifted more than 1 million children out of poverty in 2008. Unfortunately, OASDI uses a narrow definition of family, which usually financially penalizes LGBT families.

Children denied inheritance and ability to sue for wrongful death

When a person dies, property titled in that person’s name becomes part of his estate. If that person created a legal document such as a will or a trust before he died, then that document will generally guide the distribution of that person’s property, including money in bank accounts, and other property such as real estate and cars. If that person did not create a legal document—which is common in as many as 65 percent of all deaths—then states use “intestacy” laws, which provide guidelines for how an estate’s net value should be distributed to heirs in the absence of a will.

Intestacy laws vary by state, but most use a narrow definition of family that excludes same-sex partners and children who lack legal ties to their parents. Most same-sex partners cannot inherit money and property through these laws since they usually prioritize the surviving spouse of the person who died and same-sex couples cannot marry in most states. If children do not have legal ties to the parent who died, they also cannot usually inherit through intestacy laws, even if the parent provided for the children since birth. The result is that if a nonlegal parent dies without a will, all assets and inheritance can flow to distant relatives rather than the second parent or surviving children, leaving the family destitute.

In most states, the determination of which family members can sue for wrongful death follows the same lines as intestacy law—meaning that only legally recognized family members have the right to sue for wrongful death caused by circumstances such as car and motorcycle accidents, medical malpractice, workplace accidents, unsafe products, and crimes. In these states, same-sex parents cannot sue for the wrongful death of the other parent, and children who are not the legally recognized children of the person who died cannot sue either.

Because of insufficient legal protections, same-sex couples and other vulnerable families should execute documents that express the legal parent’s wishes in case of death, such as “an appointment of guardianship,” to designate the other parent as the guardian in case of death or incapacitation of the legal parent. Yet these are far from perfect: They are expensive and complicated to produce, many families are unfamiliar with them and their importance, and judges are usually not required to honor them.

Children denied access to safety-net programs

Some government programs and laws use a broad definition of “family” or “household” that looks at the actual interconnectedness of people (such as the extent to which individuals share economic resources such as food or housing). Most programs, however, use narrow definitions of family that fail to recognize same-sex couples or children not legally related to those seeking assistance. This narrow definition of family can mean that LGBT and other families are unfairly denied benefits and protections. For instance, if a two-parent, one-child household is only counted as a two-person household (excluding one LGBT parent), the family may be denied assistance that would be granted a three-person household or may receive lower levels of assistance.

Conclusion and recommendations

Today’s families are diverse. But regardless of how a family is formed or structured, the needs of children are the same: stable, loving homes; economic security; and health and well-being.

States can implement a variety of legislative solutions to ensure that children living in LGBT families have protections designed to meet these needs. The solutions should first and foremost be focused on the best interests of children. Laws should also create legal ties to both parents and make sure that the process of securing those ties is affordable and not overly burdensome. Legislation should also provide a mechanism for written documentation of relationships, and whenever possible, also provide a court judgment to ensure that the family legal ties are secure and hold across state lines. Finally, state legislation should eliminate the potential for bias and discrimination by providing clear definitions and guidelines for those interpreting the law.

The full report provides a detailed list of specific recommendations for each state. The report’s appendices provide existing legislative models designed to support lawmakers who are crafting legislation and a state-by-state summary of the status of current laws (with suggestions for areas for improvement). Taken together, the recommendations provide a framework for state policymakers to eliminate the majority of state-level family law disparities that pose harm to children raised in LGBT families. Many of these recommendations would also help other children, including children in foster care, children awaiting adoption, children raised by unmarried parents, and children raised by extended family members.

The big-picture recommendations include:

• Legal recognition of LGBT families
  • Legalize marriage for same-sex couples
  • Legally recognize families by passing comprehensive parental recognition laws at the state level to fully protect children with LGBT parents

• Fostering and adoption laws
  • Pass or amend state foster and adoption laws and regulations to allow unmarried and same-sex couples to jointly foster and adopt children
  • Repeal or overturn discriminatory state laws restricting adoption and fostering by same-sex or unmarried couples

• Donor insemination and assisted reproduction laws
  • Pass or amend donor insemination/assisted reproduction laws to clarify the parenting rights and obligations of all parties

• Parental presumption laws
  • Pass or amend state parental presumption laws to be neutral with respect to sexual orientation and marital status to ensure inclusion of same-sex couples.

• Surrogacy laws
  • Create or update surrogacy statutes to clarify parentage and avoid needless legal battles

• Second-parent adoption laws
  • Pass or revise state adoption laws to permit second-parent adoption by same-sex or heterosexual partners irrespective of marital status

• De facto parenting laws
  • Pass state laws allowing courts to recognize de facto parenting as a basis for full legal parentage

• Parentage judgments
  • Pass or amend state laws clarifying when courts have the power to issue parentage judgments awarding full parenting rights and obligations

The lack of legal recognition for LGBT families harms children. Children may go without health insurance or a parent may be limited in making health care decisions for them. Children may be wrested away from the only parents they know when relationships dissolve or a parent dies or becomes disabled. They may be unable to access financial lifelines and safety-net programs designed to support families during family crisis.

This need not be the case. Comprehensive laws that secure legal ties between children and parents can be enacted in every state and provide much-needed protections for all children, including children living in LGBT families and children who are raised in other diverse families.

Jennifer Chrisler is the executive director of the Family Equality Council, Laura Deaton is the policy research director of the Movement Advancement Project, and Jeff Krehely is Director of the LGBT Research and Communications Project at American Progress.

Read the full LGBT families legal ties report (pdf)

Read the original LGBT families column and report (pdf)

Endnotes

[1].This brief uses “LGBT families” to refer to any household in which an LGBT adult or same-sex couple is raising a minor child or children. We use this term strictly for simplicity while noting its inaccuracy in that the term is not a reflection of the sexual orientation or gender identity of the children in such households.