Adoption and the Defense of Marriage Act

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On May 14, 2013 Minnesota became the 12th state in the US to legally allow, and recognize existing, same-sex marriages. Because of the federal Defense of Marriage Act or DOMA passed by the late 90's Clinton Administration, each state has to decide whether or not to recognize such unions as a legal marriage of two adults within their borders. All marriage debates aside, this becomes a hot-button issue in the adoption community when you start to look at how a state's definition of marriage can affect its recognition of a parent-child relationship when that child has been born to or adopted by a parent of a same-sex couple.

In the 12 states where same-sex marriage is recognized as a legal union of two adults, those married couples have the same rights that heterosexual married couples have had for years. If one of the partners in the marriage gives birth to, or biologically fathers a child, by nature of the law the other parent is automatically recognized as the second parent and the birth certificate would list the couple's names as legal parents of the child. In the same regard, if either parent had children from a previous relationship – once they are married, the children would be recognized as step-children of the other parent and entitled to all of the dependent benefits that relationship allows. The problems for these families begin if they ever choose to travel outside their home state to one of the other 38 states who do not recognize same-sex marriages and when applied to any benefit at the federal level including the filing of joint tax returns.

Because the majority of the states in the union still do not recognize same-sex marriages and parentage resulting out of these unions, in order to protect the rights of the non-biological parent it becomes necessary for that other parent to also adopt their own child. Many same-sex partners see this as a major flaw in a system that supposedly is starting to create equality for them. Not only are adoptions in these situations expensive – since it is a private adoption and all costs fall on the couple seeking the legal change of parenting status – they are also very intrusive to the privacy of all members of their household. You see, even though the other parent is the biological parent of the child they also have to submit to all of the home study requirements as part of the household so for all intents and purposes both parents are required to go through this process to adopt a child that was born into their marriage.

Most standard adoptions require a very intense process where the entire household is studied and scrutinized for every aspect of daily life. This process starts with a criminal background study complete with fingerprints and examination at the FBI level, known as an Adam Walsh Child Study, to check for past indiscretions and violent behavior and deem both parents and any other family members over the age of majority (typically 18) suitable parents. And it doesn't stop there. The family will also have to meet with some type of social worker and be interviewed about every aspect of their past relationships and their current relationship including questions about how they plan to parent and discipline the child they are seeking to adopt. After that process is completed, they will also have to submit several written plans about safety, emergency contingencies, and other arrangements that other parents usually don't have to sit down and commit to paper.

Every step of this process has a price tag attached to it. Beyond the actual adoption, most attorneys also suggest that same-sex parents take extra precautions such as power of attorney and keeping a will up to date in the event that one parent becomes totally incapacitated or dies. With all of the expenses considered, same-sex couples can expect to pay on average $4,000 to make sure that their parenting rights are protected and recognized across the borders of our union of states.

Some think that the appeal of DOMA before the United States Supreme Court would solve this dilemma for these parents but that simply is not true. The part of DOMA that is being challenged only involves judgments ordered by a court so married same-sex parents would still need to go through the adoption process to ensure that both parentage’s are recognized if they were to travel outside one of the 12 states recognizing their union or by any part of the federal government including any branch of the US Military. All parents in our country should make sure they are fully aware of their rights at the state and federal levels and take the means necessary to ensure they can legally act as a parent in all situations even if that means adopting their own child.

Credits: Adopted Abby

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