On July 17, 2014, the producers of the CBS sitcom, Two and a Half Men, revealed that a story arc in the 12th and final season would entail Ashton Kutcher’s character, Walden, responding to a health scare—and attendant existential angst—by deciding to adopt. As a single male, Walden concludes that marriage to his roommate Alan (Jon Cryer’s character), so as to attain lawful status as a same-sex couple, would be a useful means to the end of successfully adopting a child. In the wake of that TaaHM storyline (played for laughs by the show’s producers), we examine the basics of same-sex adoption.
State Laws on Same-Sex Adoption
Two and a Half Men was set in Los Angeles, California. True to the tongue-in-cheek Hollywood plot premise, California does allow same-sex couples to petition to adopt a child. California is one of 23 such states—the others being Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Same-sex adoption has been legal in California since 2003. In fact, California is one of 10 states in which discrimination in adoption, based on sexual orientation, is expressly prohibited. California, along with New Jersey, grant legal parent status to gay and lesbian couples upon the birth of a child, as long as the couple is in a civil union or domestic partnership.
Same-sex adoption is prohibited by law in Mississippi, North Carolina and Utah. The practice is effectively prohibited in Kansas and Michigan, save in instances where a same-sex partner seeks to adopt the biological child of their partner. A lawsuit filed in 2013 in Nebraska claims that the state’s policy against allowing two unrelated adults to adopt is consistently enforced against only same-sex couples (and seeks to overturn such policy). That lawsuit is still pending. In 2012, an Alabama appellate court ruled that an Alabama woman could not adopt her same-sex spouse’s child (thus creating a precedent against same-sex adoption in Alabama).
In the remaining 20 states, the current state of the law concerning same-sex adoptions could be described as unsettled: the practice is not outright prohibited by law, but uncertainty exists under statute and the case law.
By comparison, all 50 states expressly allow single people, including gay and lesbian individuals, to petition to adopt, and permit married couples to petition to adopt jointly. Even in those 20 states in which gay and lesbian couples are permitted to marry, many attorneys recommend that non-biological parents undertake those procedural steps required for stepparent or second parent adoption. Such a parental legal relationship can then exist as a form of legal "backup," or security if the same-sex couple elects to move to a state that fails to recognize their legal relationship with one another, along with the parental rights that automatically attend that relationship in their native state.
Kristy M. Krivickas and Daphne Lofquist of the U.S. Census Bureau released a working paper in 2011, called "Demographics of Same-Sex Couple Households with Children." According to their analysis, 26.5% of lesbian couples had children in their household in 2008, an increase of 4.5% from 22% in 1990. For gay couples overall, the figure increased from 5% to 13.9%. Not all children in such households were adopted, but those figures do highlight a meaningful increase among same-sex couples as heads of households with children. Krivickas and Lofquist, citing earlier research, reported that 4% of all adopted children in the U.S. are being raised by gay or lesbian parents.
Interstate Jurisdiction Issues
The issue of same-sex couples’ lawful parental status in moving between jurisdictions has arisen in several cases. In the federal appellate case of Adar v. Smith, the refusal by Louisiana to amend the birth certificate of a child born in Louisiana and adopted in New York by a same-sex married couple, where the couple had sought to have a new birth certificate issued in the child’s name including their names as parents, was upheld. The Supreme Court declined to hear an appeal of that ruling on certiorari.
In 2004, the Oklahoma legislature enacted the Adoption Invalidation Law, which declined to recognize the parental status accorded to same-sex parents by other states, in the event that those parents moved to Oklahoma. Families headed by same-sex couples, from Washington state, New Jersey and California, filed a suit challenging the statute, which was struck down by the lower court (Finstuen v. Edmondson), an outcome affirmed on appeal by the Tenth Circuit Court of Appeals.
Divorce and Same-Sex Adoption
Divorces between gay spouses can lead to uniquely complex child custody questions when one parent moves to another state. This issue was brought into sharp relief in the long-running case of Jenkins v. Miller.
In 2000, two women, Janet Jenkins and Lisa Miller of Rutland, Vermont, entered into a civil union in Vermont. In 2002, Lisa gave birth to a child conceived through artificial insemination, which the couple named Isabella Miller-Jenkins. The couple separated in 2003, setting off an extended legal battle over custody of Isabella. In civil union dissolution proceedings, primary custody of Isabella was granted to Miller as her biological mother, while Jenkins was granted visitation rights.
Miller then moved to Virginia, which does not recognize civil unions, and denied Jenkins’ attempts to visit Isabella. Miller further claimed that she was no longer a lesbian. In July 2004, Miller requested and received a court order in Virginia court declaring her as Isabella's sole legal parent. Jenkins successfully appealed and received an appellate court order providing her with visitation rights. Miller failed to comply with the visitation order and in November 2009, Vermont ordered that sole custody of Isabella be given to Jenkins, with transportation to occur on January 1, 2010. Miller failed to comply with this order, leading to an international manhunt. Both Lisa and Isabella Miller are reported to be living abroad in Nicaragua, but their exact whereabouts are unknown.
This article is intended to provide a general overview of the circumstances and requirements described. It is not a substitute for reference to applicable state law.