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JURIST - Feature: Adoption and Parental Rights
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Adoption and Parental Rights

The legal controversy over same-sex marriage has also implicated debate over the parental and adoption rights of homosexual couples. Although many states have yet to officially address the issue, several states have had notable legal conflicts.

In recent years, the courts have abrogated many state-level bans that have prevented same-sex couples from adopting children. Judge Robin Cauthron of the struck down an amendment to the Oklahoma Constitution that prevented Oklahoma from recognizing adoptions by gay parents that were finalized in other US or foreign jurisdictions. In a similar Arkansas decision, a judge ruled that a state law prohibiting all unmarried couples from adopting or fostering children violated the Arkansas Constitution [PDF]. The judge held the law to be discriminatory because it prohibited all gay couples from adopting or fostering children by virtue of Arkansas not recognizing gay marriage. That decision was upheld by the Arkansas Supreme Court on April 7, 2011 [PDF]. The Court of Appeals for the Third Circuit also struck down a state law prohibiting gay couples from adopting in September 2010. The ACLU also filed a lawsuit [PDF] in North Carolina on June 13, 2012, challenging North Carolina's law against same-sex adoption, which effectively bans individuals in same-sex couples from adopting their partner's child. The lawsuit was filed on behalf of six same-sex couples who wish to share parental responsibilities with their partners.

Other expansions of gay parental rights have taken place in recent years. In New York, Governor David Paterson signed a bill into law that explicitly allowed unmarried partners, including gay couples, to jointly adopt children. The New Mexico Supreme Court similarly ruled that the same-sex partner of a parent who has adopted a child has a right to seek custody of that child after the partnership has dissolved. The court recognized the standing of a woman seeking partial custody of a child she had supported for years while in a same-sex relationship with the child's biological mother. Another prominent custody ruling occurred in February 2012, where the Massachusetts Appeals Court held that same-sex couples who marry and have a baby via artificial insemination are bound by the same custody laws as heterosexual couples.

However, not all states are legally expanding the rights of same-sex parents. In Virginia, the House of Delegates and Senate approved a bill that permits private adoption agencies to refuse placement to families if the agency, or anyone affiliated, disagrees with the placement based on religious beliefs, effectively allowing adoption agencies to refuse to allow same-sex couples to adopt.

Some cases have examined birth certificate controversies and reached differing opinions. In January 2012, an Iowa District Court ordered the Iowa Department of Public Health to include [PDF] both names of legally married same-sex parents on birth certificates. Cases involving gay adoption also include Adar v. Smith, a case involving a same-sex couple that wanted both their names on the birth certificate of an adopted child. Though adopted in New York, the child was born in Louisiana, where the couple was refused their request. The Court of Appeals for the Fifth Circuit originally ordered both names to be added to the birth certificate, but upon en banc review, the Fifth Circuit struck the order. Following that decision, gay rights group Lambda Legal filed a petition for a writ of certiorari to the US Supreme Court to review the case, which was denied.

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