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December 21, 2012

Constitutionality of Same-Sex Marriages Could Change Adoption Eligibility

No other area of adoption law is evolving faster than that of second-parent adoption or adoptions involving same-sex parents, said Phillip Tucker, a family law and adoption lawyer from Oklahoma, at an _ program on the ABCs of Adoption.

Family law experts are exploring potential changes in adoption laws for same-sex couples, and their eligibility to adopt a child, now that the U.S. Supreme Court has announced it would consider two marriage laws — the Defense of Marriage Act and California’s Proposition 8 — to determine the constitutionality of same-sex marriages.

In most jurisdictions, a single person — oftentimes over the age of 21 — or a married couple can adopt a child. The eligibility and qualifications to adopt a child are different in every jurisdiction and are determined by state statute. As to what constitutes a “married couple,” the law varies from state to state, with some jurisdictions including a same-sex relationship.

“Now, this is a very state-specific issue at this point in time —  for example, in Minnesota they allow second-parent adoption; however, in Oklahoma that is not permitted,” said Tucker. “If in fact the United States Supreme Court determines that same-sex marriage is valid and the law of the land, you will see this area impact adoption practice and it will expand the concept of who can adopt a child,” continued Tucker.

Adoption is often described as a two-step process, in which first a child is declared eligible for adoption — which requires consent from the biological parents; and second, determining whether the prospective adoptive parents are fit to adopt the child and whether it is in the best interest of the child for the adoption to occur.

“Many times in a same-sex couple relationship, one of the parties in that relationship has a biological connection to the child — so that fits our definition of a parent …; the other partner then is eligible to do what is called a second-parent adoption, which allows the couple’s significant other to adopt a child,” said Tucker. He added that a second-parent adoption is also applicable and available for unmarried, opposite-sex couples who wish to adopt a child.

The ABCs of Adoption, sponsored by the ABA Section of Family Law, Solo, Small Firm and General Practice Division, and Young Lawyers Division, was an introductory program to the adoption process — from who may adopt to the final order of adoption issued by the court.

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