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In most
states, there are no laws or policies that specifically
discuss the placement of children for adoption or in foster
care with gay or transgender people. This is because standard
child welfare policy calls for all applicants who are seeking
to adopt or foster to be rigorously screened on an individualized
basis for their suitability to care for a child. Categorical
rules about particular groups of people are therefore extremely
rare.
In a few states, there are laws or policies
prohibiting discrimination against gay people or same-sex
couples seeking to adopt or foster children. In a number
of other states, courts have interpreted the state adoption
law to permit the adoption of a child by the parent’s
same-sex partner, thus, implicitly recognizing that gay
people are eligible to be considered as adoptive parents.
On the other hand, in a very small handful
of states, laws exist that explicitly disqualify gay individuals
or couples from adopting or fostering. The ACLU believes
such exclusions are unconstitutional, and some of these
laws have been challenged in court, but the results have
been mixed. We are not aware of any state laws or policies
that specifically address placement of children for adoption
or foster care with transgender parents.
Click
for a state-by-state guide to laws.
Even where there is no law or policy excluding
gay or transgender people from adopting or fostering children,
child placement agencies will not necessarily be open to
placing children with such applicants or treat them equally
to other applicants. Placement decisions are generally left
to the child placement agencies, whose directors and caseworkers
may have a range of policies or attitudes regarding LGBT
applicants.
Moreover, in some states and within some
placement agencies, there are policies preferring placement
of children with married couples. Where such policies exist,
agencies and caseworkers might only consider other applicants
(single heterosexuals, lesbian or gay singles or couples)
only for hard to place children for whom they cannot find
married couples (typically older children and children who
have significant medical or emotional needs).
Even
in jurisdictions where gay individuals face no barriers
to adopting children, joint adoption by same-sex couples
is not necessarily permitted. A few states have statutes
or case law expressly providing for joint adoption by same-sex
couples. Some states’ adoption laws have been interpreted
by courts to preclude joint adoption by unmarried couples.
And in other states, there are at least some judges who
have interpreted the law to permit joint adoption. Where
joint adoption is not available, in jurisdictions that permit
second parent adoptions (see second parent adoption), lesbian
and gay couples have been able to protect both parents’
parental rights by adopting consecutively (one member of
the couple applies and goes through the process of adopting
the child, and after the adoption is complete, the other
partner procures a second parent adoption).
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