More same-sex couples are adopting their own kids amid legal uncertainty

According to WGBH News in Boston:

Five years ago, Kelley and Sarah McGuire were getting ready to welcome their first child.

Kelley McGuire spent four days in labor and ended up having an emergency C-section. Sarah McGuire was right there with her through the ordeal.

“She was a champ,” Sarah McGuire recalled, “and my son was healthy.”

They put both of their names on the birth certificate, just like they did when Kelley McGuire gave birth to their daughter a year and a half later.

Then, they grew more and more concerned about the political climate. Last year’s Dobbs v. Jackson ruling reversed a precedent that had stood for half a century, and in Justice Clarence Thomas’ concurring opinion, he took aim at the 2015 court case that legalized same-sex marriage nationwide.

The McGuires got a lawyer to officially adopt their own children.

“Given an absence of federal legislation, what would ensure that I had parental rights for my own kids?” Sarah McGuire said.

Family law attorneys have always strongly recommended that same-sex couples go through the costly and lengthy adoption process so that their parentage can’t be challenged in cases that involve sperm donors or surrogates — even when both partners, both biological and non-biological parents, are on the birth certificate, like the McGuires. Every attorney that GBH News spoke to for this story said that the number of same-sex couples looking to shore up their parentage has spiked since last summer, and that it’s a trend their peers in other states have also seen.

Data in family court is notoriously scant, making the magnitude of the trend hard to pin down. While individual cases are private, one category of adoptions that includes same-sex couples’ “confirmatory” adoptions, as well as cases like step-parent adoptions, rose by a third in Massachusetts’ 2023 fiscal year, a year that began just six days after the Dobbs decision. And each of the 10 Massachusetts adoption attorneys who responded to inquiries from GBH News say they saw the same change, though some say the surge has since died down.

“We should not have to adopt our own children. It is insulting and ridiculous to have to do that,” said attorney Joyce Kauffman, who practices in LGBTQ+ family law. “But my feeling is: it’s an insurance policy. So you want to protect your parentage, you do an adoption.”

A stressful and ‘demeaning’ process

For Kathy DeLisle, a family law attorney, one particular adoption stands out. She represented a couple who, after the Supreme Court ruling, called her to settle their parental rights for their 7- and 5-year-old children.

“The judge kept saying … ‘Now you’re safe. Now your family is protected,’” DeLisle recalled. “And the kid, the oldest one, was like: ‘Were we in danger? Were we going to be taken away?’ And there’s no sense of what this is doing to the kids.”

From the parents’ perspective, it can also be a stressful experience. Such adoptions typically cost around $2,000 for one kid, and while the process can take just weeks, it can also take much longer.

For the McGuires, it took about six months. As part of their paperwork to the court, they sent in testimony from family and friends at their lawyer’s urging to testify to Sarah McGuire’s fitness as a parent, and she had to go through a background check.

“I can tell you, for me, that process felt demeaning as a non-biological parent,” Sarah McGuire said. “That not only am I asking family members to affirm my ability as a parent, but I’m having a state agency check on my behalf as a parent — for kids that have literally only known me as their mom.”

“It’s an insurance policy. So you want to protect your parentage, you do an adoption.”


Gaps in existing laws

Attorneys warn of the consequences if the paperwork isn’t completely clear.

In Pennsylvania earlier this year, a court decided that one partner didn’t have legal parental status when the couple divorced while the other partner was still pregnant. A Louisiana case that’s still pendingwill decide whether the parental rights of a non-biological mother, whose name is on the birth certificate, can be revoked after the couple’s divorce.

For those in Massachusetts, problems emerge, especially, when parents cross state lines. And attorneys like Polly Crozier, who works at the nonprofit law organization GLBTQ Legal Advocates & Defenders, have seen issues where, when the couple separates, the biological parent takes a child out of state and it takes years for the non-biological partner to be reunited with the child.

“It took many, many years and much litigation to get her back,” Crozier said. “Whereas if she had been established as a legal parent, she probably would have had her child returned right away.”

It also creates uncertainty in emergency situations. If that biological parent passes away, courts could see legal ambiguity in the surviving partner’s parent-child relationship. And, when traveling from state to state, some parents worry about needing to make medical decisions for their child — but not being able to prove to the hospital that they’re the parent.

“It’s a lot of anxiety, too, for parents,” said DeLisle. “Even though they feel very safe in Massachusetts — and I think they should — we live in a very mobile society. … They’re like, ‘What happens if we go to Disney and we’re in a car accident?’”

But it’s a costly step many families don’t take. There’s already a patchwork of legal avenues in Massachusetts to show parental rights. And for many, those options feel good enough.

Yale law professor Doug NeJaime worries about the families who fall between the cracks of that patchwork.

“People are living their lives and they’re having children and they don’t know what the law does or doesn’t provide,” he said. “And they shouldn’t have to get lawyers to be treated as parents of their children.”

It’s settled law that adoptions have to be recognized by other states and countries. Advocates say other forms of paperwork should be recognized across states as a court decree, too. But it’s not as clear.

“There’s no case law on … whether Alabama has to treat that as valid,” NeJaime said. “And while I would argue they should, some people quite reasonably will say, ‘I don’t want to risk that with these courts today.’”

What the lawyers hope to change

What makes the process more complicated is that laws around who’s legally considered their child’s parent haven’t caught up to the many ways people make families. Each county has its own quirks, attorneys say, and while some judges prefer a quick process, others will request an in-person hearing and more extensive documentation.

They pin the blame on the Legislature for failing to update the commonwealth’s laws around parents, leaving parentage to a mishmash of legal avenues. But those avenues leave gaps — for instance, sometimes relying on marriage as a determination of parentage when a third of children born in Massachusetts have unmarried parents.

“It’s really difficult when you have no consistency,” said DeLisle, one of the attorneys pushing to get the law changed. “And part of the problem is that there’s no legislation.”

Family law attorneys routinely point out that laws around parents haven’t been touched in Massachusetts since the 1980s. The Massachusetts Parentage Act, which advocates have been trying to pass since 2016, would legislatively enshrine the processes and standards that many judges have patched together with precedents over the last few decades.

It would create more legal options for couples who use sperm donors or surrogates, options that advocates believe should be recognized in other states with the same legal force as adoption.

NeJaime hopes the law could protect other parent-child relationships. His research shows cases like grandparents exclusively parenting young children come up much more frequently in courts nationwide.

“The concern from my perspective is a lot of people don’t have the time and resources to do it, or they never realize they need to adopt their own child,” he said. “Which is why, yes, I recognize people will still do these adoptions. But it’s important that states have laws that protect people who don’t do these adoptions.”

For the McGuires, life has gone on. Their two kids, now both in preschool, watched cartoons while the couple reflected on their adoption process at their dining room table.

“We just want to make sure that, no matter what happens to either one of us, that they’ll always be protected,” Kelley McGuire said. “It was definitely worth it.”

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