The Kids Aren’t Alright By Hannah E. Hicks

The Kids Aren’t Alright

By Hannah E. Hicks

When Lucy and Carmen ended their decade-long relationship, their children, Julia and Jack, stayed with their biological mother, Lucy.[1] Having been unable to adopt the children she co-parented without divesting Lucy’s rights, Carmen was a legal stranger to Julia and Jack.[2] Unlike many in their situation, Lucy and Carmen remained friendly and worked out a child support arrangement and visitation schedule that allowed Carmen to maintain a close relationship with the children until her death from cancer in 2011.[3] Even so, Lucy, Julia, and Jack were told that Carmen’s funeral service was only open to family members, and they were excluded from the service.[4] To make matters worse, even though Carmen financially supported Lucy and her children after the break-up and throughout her illness, Carmen’s parents contested their daughter’s will and life insurance policy. Carmen’s inheritance ultimately passed to her parents rather than to her two children.[5]

This all too common story sheds light on the financial and social burdens that befall children of queer families when states fail to recognize de facto parent adoptions (also referred to as second- or, less frequently, third-parent adoptions). De facto parent adoptions are adoptions in which a person acting as a parent is permitted to adopt the legal parent’s child without divesting the parental rights of the legal parent. In every state, single adults (including LGBT individuals) are permitted to adopt.[6] However, states vary widely in their recognition of de facto parent adoptions.[7] Trial courts in a half dozen states have granted third parent adoptions to LGBT families.[8] In seventeen states, de facto parent adoption is an option for two-parent queer families.[9] Eight states have created barriers to de facto parent adoptions by LGBT families.[10] The status of de facto parent adoption is unclear in nineteen states, including Alabama.[11]

De facto parent adoptions should be recognized in every state because these adoptions serve the best interests of children. When parents are unable to establish legal ties to their children, families may face higher tax burdens and costlier health insurance, and may be denied government support in times of crisis.[12] Children may not be able to bring suit for the wrongful death of a parent, and may also be denied Social Security Survivors Benefits and Disability Insurance Benefits.[13]

Children growing up in queer families are often made to endure these stark realities while their counterparts who are raised in heterosexual households enjoy broad public benefits and protections. This is true even though less than a quarter of U.S. households are made up of families with two married parents and children.[14] In 2012, just 69% of children lived with married heterosexual parents.[15] It is imperative that state parenting laws reflect the shifting landscape of America’s families, especially when “children being raised by same-sex couples are twice as likely to live in poverty as those being raised by married heterosexual parents.”[16] When children of queer families are offered the same legal benefits and protections already provided to the children of married heterosexual parents, they stand a better chance of avoiding poverty or breaking its cycle.

Diverse families inhabit every sphere of society, though relatively few states have taken steps to provide them with essential legal protections. Today, de facto parent adoptions are an important leg in the race toward substantive family equality. De facto parent adoptions work to reinforce the social and political legitimacy of complex modern families. De facto parent adoptions serve the best interests of children by lowering families’ tax burdens, making healthcare more affordable, and ensuring the availability of survivor’s benefits. In addition, these adoptions provide benefits and protections to families for whom civil marriage is not an option. Tradition and popular opinion must give way to the welfare of children. By making de facto parent adoptions available to all persons acting as a child’s parent, states can help steer society toward full recognition of the rich relational world we inhabit.

[1] Movement Advancement Project, Family Equality Council & Center for American Progress, Strengthening Economic Security for Children Living in LGBT Families 18 (2012), available at http://www.lgbtmap.org/file/strengthening-economic-security.pdf.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Movement Advancement Project et al., supra note 1, at 4.

[7] See Mark A. Momjian, Cause of Action for Second-Parent Adoption, 25 Causes of Action 2d (2014); Ann Wooster, Annotation, Adoption of Child by Same-Sex Partners, 61 A.L.R. 6th (2011).

[8] Nancy Polikoff, Where can a child have three parents?, Beyond (Straight and Gay) Marriage (July 14, 2012), http://beyondstraightandgaymarriage.blogspot.com/2012/07/where-can-child-have-three-parents.html.

[9] Parenting Laws: Second Parent or Stepparent Adoption, Human Rights Campaign (Jun. 10, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/second_parent_adoption_6-10-2014.pdf.

[10] Id.

[11] Id.

[12] Movement Advancement Project et al., supra note 1, at 6.

[13] Id.

[14] Susan Heavey, U.S. Families shift as fewer households include children: Census, Reuters (Aug. 27, 2013 2:02 PM), http://www.reuters.com/article/2013/08/27/us-usa-families-idUSBRE97Q0TJ20130827.

[15] Movement Advancement Project et al., supra note 1, at 1.

[16] Id. at 2.

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