Overview of State Adoption Laws

 

As with any compilation of this sort, the following chart is intended to indicate general trends. It has been compiled from various sources, from standard legal materials to anecdotal accounts of practices in various states. It cannot substitute for the advice of an attorney in any particular circumstance. Furthermore, the area we have endeavored to summarize is a highly volatile one — the law reflected here may well change the day after publication. Finally, since family law is so closely tied to individual judges' determinations of particular circumstances, no chart, no matter how accurate, can predict the outcome of any particular case. Do not use this chart instead of consulting an attorney, or in place of research to learn current law.

Adoption By An Unmarried Person (Individual Adoption)

Currently every state in the country except Florida permits gay, lesbian and bisexual persons to petition individually to adopt children.

Adoption By An Unmarried Partner (Second Parent Adoption)

The adoption laws of about half the states have been held to permit adoption petitions by the unmarried partner of an existing legal parent, so-called "second parent adoptions."A handful of state court appellate decisions have ruled that second parent adoptions are not possible under the adoption laws of those states.

Adoption By A Married Spouse (Stepparent Adoption)

States generally permit petitions to adopt the child of one's married spouse if the rights of any other surviving parent of the child (such as a former spouse) have been terminated.In some states, domestic partners of gay and lesbian parents use the stepparent provisions to adopt.

Adoption By A Couple (Joint Adoption)

Most states that permit second parent adoption by a partner also permit petitions by unmarried couples jointly where neither is a legal parent to the child. But joint adoptions by unmarried persons may be denied or permitted whether or not second parent adoptions are allowed, and not all states have considered this issue directly. Married couples are not only generally permitted jointly to adopt but may be required jointly to adopt except in rare circumstances, or at least to demonstrate the consent of the spouse to the adoption.

OVERVIEW OF STATE ADOPTION LAWS
State Who May Adopt Second Parent Adoptions Notes
Alabama

Any unmarried adult or husband and wife jointly. Ala. Code § 26-10A-5

Approved in some lower courts.

Case law reveals hostility to gay parents. See Ex parte J.M.F., 730 So.2d 1190 (Ala. 1998).

Alaska

Any unmarried adult; married persons must petition jointly unless excused by court. Alaska Code § 25-23-020.

Approved in lower court (Juneau).

Generally tolerant toward lesbian and gay parents.

Arizona

Any adult. ARS § 8-103.

Not yet permitted.

Consideration of bisexuality (among many other factors) approved in denial of preadoption certification in In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830 (App. 1986).

Arkansas

Any unmarried adult; married persons must petition jointly unless excused by court. Ark. Stat. §9-9-204.

Not yet permitted.

Case law reveals hostility to gay parents. See Larson v. Larson, 902 S.W.2d 254 (App. 1995).

California

Any adult. Fam. Code §§ 8600, 8601.

Expressly permitted statewide by Sharon S. v. Superior Court, 31 Cal. 4th 417 (2003).Statute also permits stepparent adoptions by registered domestic partners.

Law also bans LGBT discrimination against prospective parents in foster care/adoption.

Colorado

Any adult. Colo. Code § 19-5-202

Disapproved in In re Adoption of T.K.J. and K.A.K, 931 P.2d 488 (Colo. App. 1996)

Generally favorable environment. See, e.g., In re Marriage of Dorworth, 33 P.3d 1260 (Colo. App. 2001).

Connecticut

Expressly permitted by 2000 statute that overruled court decision to the contrary.
Delaware

Unmarried person or married persons petitioning jointly can generally adopt. 13 Del Code § 908.

Approved in In re Hart 806 A.2d 1179 (Del. Fam. Ct. 2001).
District of Columbia

Any person.

Approved in In re M.M.D. & B.H.M., 662 A.2d 837 (D.C.App. 1995) (joint adoption where one parent had previously adopted child).
Florida

No "homosexual" may adopt. Fla. Stat. § 63.042(3)

Not yet approved.

Federal court decision in Lofton v. Kearney, which upheld adoption ban, is on appeal.

Georgia

Any adult. OCGA § 19-8-3.

Numerous granted in lower courts.

Results vary by county and by judge. Most successes have been in metro Atlanta counties.

Hawai'i

Any adult or married persons petitioning jointly. Hawaii Rev. Stat. § 578-1.

Generally resistant, but lower courts have in recent years approved at least three adoptions.
Idaho

Any adult. Idaho Code § 16-1501

Not yet permitted.
Illinois

Any person. 750 ILCS 50/2

Approved in Petition of K.M. 653 N.E.2d 888 (Ill. App. 1995); reaffirmed in In re C.M.A., 715 N.E.2d 674 ( Ill. App. 1999)

 Permits individual, joint and second parent adoption.
Indiana

Any person. Ind. Stat. § 31-19-2.

Approved in Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) (by partner of biological parent); Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003) (by partner of adoptive parent).
Iowa

Any unmarried adult; spouse must join petition unless excused by court. Iowa Code 600.4

Approved in lower courts.
Kansas

Any adult. KS Stat. 59-2113.

Not yet permitted
Kentucky

Any adult. Ky. Rev. Stat. 199.470. Any unmarried adult; generally, spouse must join petition if married.

Not yet permitted
Louisiana

Single person or married couple jointly. La. CHC 1198, 1202

Not yet permitted.

Case law forbids joint adoptions by unmarried heterosexual couples.Adoption of Meaux, 417 So. 2d 522 (La. App. 1982). Relatively unfriendly climate SeeScott v. Scott, 665 So.2d 760 (La. App. 1 Cir. 1995)

Maine

Unmarried person or married couple jointly. 18-A Maine Statutes § 9-103.

Not yet permitted

Fairly tolerant.

Maryland

Any adult. Can't deny petition because applicant is single. Md. Code § 5-309.

Approved in lower courts.

Positive climate indicated by visitation case, Boswell v. Boswell, 721 A.2d 662 (1998)

Massachusetts

Any "person of full age" Mass. Gen. L. ch. 210, §1

Approved. See Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993)
Michigan

Any person. Mich. Probate Code §710.24

Approved in some lower courts but ordered discontinued in Washtenaw County by chief judge (Ann Arbor area).

.

Minnesota

Any person. Minn. Stat. § 259.22

Approved in lower courts (Aitkin & Hennepin Counties)
Mississippi

Unmarried adult or married persons jointly. Same-sex couples expressly prohibited from adopting. Miss. Code § 93-17-3.

Not yet permitted.

Adverse consideration of gay or lesbian orientation is permitted in custody disputes, but cannot be sole factor. See Morris v. Morris, 783 So.2d 681 (Miss. 2001)

Missouri

Any person. Mo. Stat. § 453.010.

Approved in some lower courts.

Relatively unfriendly although state supreme court disclaims per se rule against gay parent in custody cases. J.A.D. v. F.J.D., 978 S.W.d2d 336 (Mo. 1998).

Montana

Unmarried adult or, generally, married persons petitioning jointly. Mont. Code 42-1-106.

Not yet permitted.

Uncertain climate. State supreme court struck down statute prohibiting same-sex "deviate sexual relations" in 1997. Gryczan v. Montana, 942 P.2d 112 (Mont. 1997).

Nebraska

Any adult person. Neb. Rev. Stat. § 43-101(1)

Not permitted in In re Adoption of Luke, 263 Neb. 365, 2002 WL 360741 (March 8, 2002)
Nevada

Any adult person or any two persons married to each other. NRS 127.030

Approved in lower courts
New Hampshire

Unmarried adult; married persons must generally petition together. N.H. Rev. Stat. 170-B:4

Not yet permitted.

Statute banning adoption by any lesbian or gay person repealed in 1999.

New Jersey

Any person. N.J.S.A. 9:3-43.

Approved in In re Adoption of two Children by H.N.R., 666 A.2d 535 (N.J. Super. 1995)

Joint adoption by unmarried persons permitted by 1997 consent judgment. Tolerant atmosphere overall.

New Mexico

Any individual. N.M. Stat. 32A-5-11(B)

Approved in lower courts.

Case law allows enforcement of some agreements between biological parents and their partners concerning child custody or visitation.

New York

An adult unmarried person or an adult husband and his adult wife together may adopt another person. D.R.L. § 110.

Approved in In reJacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995)

Joint adoption approved in Matter of Adoption of Carolyn B., __ N.Y.S.2d __, 2004 WL 575028 (N.Y. App. Div., 2004)

North Carolina

Any adult. N.C. Gen. Stat. 48-1-103. But if petitioner is unmarried, no other person may join. N.C. Gen. Stat. 48-2-301.

Not yet permitted.

Hostile climate for lesbians and gay men as seen in the custody decision, Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998).

North Dakota

Any unmarried adult; married persons must generally petition jointly unless excused by court. N.D. Cent. Code 14-15-03.

Not yet permitted.

Judicial attitudes showing gradual improvement. See Damron v. Damron, 670 N.W.2d 871 (N.Dak. 2003).

Ohio

Unmarried adult; spouse must generally join petition if married. Ohio R. C. 3107.03

Disapproved by intermediate appellate court in In re Adoption of Jane Doe, 719 N.E.2d 1071 (Ohio App. 9th Ninth Dist. 1998).

Adoption by gay man allowed in In re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990).

Oklahoma

Unmarried adult or married persons jointly. 10 Okla. Stat. 7503-1.1.

Not yet approved.

Adoption by two divorced ex-spouses (now single) without stable household denied in In re Adoption of M.C.D., 42 P.3d 873 (Okla. App. 2001).

Oregon

Any person. ORS 109.309(1)

Approved in lower courts.

Favorable climate. See, e.g., In re Marriage of Ashling, 599 P.2d 475 (Or. App. 1979).

Pennsylvania

Any individual. 23 Pa. C.S.A. 2312.

Expressly permitted by In re Adoption of R.B.F., 803 A.2d 1195 (Pa.2002).
Rhode Island

Any person. R.I. Stat. § 15-7-4.

Approved in lower courts.

State supreme court has enforced agreement between lesbian partners for visitation after breakup. Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000).

South Carolina

Any person. SC Laws § 20-7-1680.

Not yet permitted.

Conservative legal climate but some favorable appellate decisions on child custody or visitation.

South Dakota

Any adult. S.D. Laws § 25-6-2.

Not yet permitted.
Tennessee

Any person. 36 TCA § 36-1-115.

Not yet permitted.

Recent signs of growing tolerance.Adoption by individual lesbian approved in In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct. App. 2000).Sexual orientation neutral visitation standards adopted. Hogue v. Hogue, 2004 WL 578593 (Tenn. Ct. App., March 24, 2004);Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001) (affirming unrestricted overnight visitation for lesbian mother living with partner)).

Texas

Any adult. Tex. Fam. Code. § 162.001.

Approved in lower courts.

Varying tolerance but frequent hostility to LGBT parents.

Utah

Any adult. But "a child may not be adopted by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state." Utah Code § 78-30-1(3)(b), (enacted in 2000).

Not yet permitted.

Joint adoption not permitted under 2000 enactment, which also extends to foster care placements. State's agencies have a history of resistance to adoption by lesbians and gay men.

Vermont

Any person. 15A V.S.A. § 1-102(a)

Approved in Adoptions of B.L.V.B. and E.L.V.B., 628 A.2d 1271 (Vt. 1993), codified at 15A V.S.A. 1-102(b) (if family consists of parent and partner, and adoption is in child's best interest, stepparent adoption may be allowed).

Partners in civil union may adopt on the same terms as spouses.

Virginia

Any natural person. Va. Code. § 63.1-219.9

Not yet permitted.

Generally hostile environment. State signed off on adoption of foster child in DC by Virginia lesbian living with partner in Kaufman v. Va. Dep't of Social Services.

Washington

Any person. RCW §26.33.140

Approved in lower courts (Kings County).

Generally tolerant.

West Virginia

Any unmarried person, or a married person filing either with spouse's consent or jointly with spouse. W. Va. Code § 48-22-201

Not yet permitted.

Prospects unclear.

Wisconsin

Unmarried adult or husband and wife jointly. Wisc. Stat. § 48.82

Disapproved in In the Interest of Angel Lace M., 516 N.W.2d 678 (Wis. 1994).
Wyoming

Any adult. Wyo. Stat. § 1-22-103

Not yet permitted.

Prospects unclear; generally conservative legal environment.

NOTES:

1. The first column provides information about the persons generally allowed to file adoption petitions in the given state, but this information is merely a starting point because lesbians and gay men may face additional formal obstacles or practical problems (such as judicial bias) as they seek to adopt. The statutory information provided should be read in light of the material in the other columns and should not be taken as a guarantee that any particular person will be deemed eligible to adopt. Many states have age, residency, or competency requirements for adoptive parents that are not included here.

2. The "Notes" column provides a general assessment of some states' attitudes toward lesbian and gay parents where one is discernible. Custody or visitation decisions are cited because they are available in greater numbers and may offer a good basis for predicting the attitudes lesbians and gay men will confront when petitioning for adoption.
Note that the denial of second parent adoptions by a state's courts does not necessarily mean that those courts are generally hostile to gay parents. Many such decisions are based on the language of statutes and, while lesbian or gay prospective parents probably have greater success in states where judges read those statutes broadly, the failure to do so does not guarantee that individual or even joint petitioners will face resistance in that state.

3. Not Yet Permitted: Given the nature of family court proceedings, and the fact that the records of these cases are often sealed, it is actually impossible to know for certain that something has never happened. However, we know of no instance in which a second-parent adoption has been permitted in these states.

This chart is also included in the publication Adoption for Lesbians and Gay Men: An Overview of the State of the Law.