Building "Nontraditional" Families

Our expert explains legal considerations for nontraditional families who are trying to adopt.

What you need to know when building nontraditional families.

Laws across the country are beginning to reflect what adoptive parents have always known: Loving families do not necessarily look like the Cleavers or the Waltons. Single, older, and gay or lesbian adoptive parents, though often referred to as “nontraditional families,” are finding it easier than ever to adopt in the United States. Internationally, however, the atmosphere is becoming more restrictive. Although nontraditional parents need to pay close attention to practical and legal considerations, they still have many options.

Gay and Lesbian Adoption

DOMESTIC: Laws in California, Colorado, Connecticut, Washington, D.C., Illinois, Massachusetts, New Jersey, New Mexico, New York, and Oregon clearly permit gay couples to jointly petition for adoption. In many other states, where the law is not explicit, judges in some counties will allow gay couples to adopt jointly. Four states (Mississippi, Michigan, New Hampshire, and Virginia) prohibit gay couples from jointly adopting. Utah prohibits adoption by anyone cohabiting but not legally married (but a similar Arkansas law was recently invalidated, as being unconstitutional).

Most states, either by statute or as a matter of judicial practice, do permit adoption of a same-sex partner’s child. Couples who live in states that recognize gay marriage, civil unions, or domestic partnerships should be able to follow their state’s step-parent adoption procedure. An abbreviated homestudy will be necessary for the partner’s adoption. Nebraska, Ohio, Kentucky, and Wisconsin do not permit second-parent adoptions by same-sex couples.

Legal recognition of both partners’ parental status has significant practical consequences for a child, including his entitlement to Social Security benefits, health insurance coverage, tort damages, inheritance rights, and child support. If both partners cannot be legal parents, they should have professionally prepared wills that clearly set forth their intentions for disposition of property and guardianship of their children.

INTERNATIONAL: Adoption options outside of the U.S. are shrinking for gay and lesbian parents. Countries that send the most children to the U.S. for adoption, including China, Ethiopia, and Russia, prohibit openly gay parents from adopting. Historically, one member of a gay couple would adopt from overseas as a single parent, and his or her partner would complete a second-parent adoption in the U.S. Some countries have put an end to this practice by allowing only married couples to adopt.

Older Parent and Singles Adoption

DOMESTIC: No state places an upper age limit on the age of adoptive parents. Accordingly, as long as a court finds that an adoption is in the child’s best interests, the age of adoptive parents is not a legal barrier. Similarly, no state law prohibits adoption by single adults (although Arizona and Utah laws state a preference for married couples).

INTERNATIONAL: Again, international adoption guidelines impose more restrictions on adoptive parents. In general, China requires both adoptive parents to be between 30 and 50, and accepts married couples only. Ethiopia has no formal age limit on adoption by married couples, but, in practice, tends to apply the rule that the adoptive parent cannot be more than 40 years older than the adoptee. Russia doesn’t place upper age limits on singles or married couples. Adoption agencies may also impose their own restrictions. Also, keep in mind that rules may be relaxed for special-needs adoptions.

Domestic Recommendations

Virtually all domestic adoptions depend on a birth mother’s choosing a particular family. While it is true that most expectant mothers envision the stereotypical nuclear family for their child—at least at first—that does not mean that nontraditional families are out of luck. Birth mothers are as diverse as adoptive parents. An expectant mother who has had difficult experiences with men might see a stable, secure single mother (or two) as a good option. Some are looking for parents with the financial stability that usually comes with age. Others are motivated by the desire to make someone a parent who wouldn’t otherwise have the chance.

Nontraditional parents should focus on networking, as opposed to Internet posts or advertising. When a birth mother finds prospective adoptive parents through a mutual acquaintance, that personal connection often carries great weight, and may lead her to reconsider the importance of finding a “typical” family.

Vetting Your Team

When nontraditional parents interview agencies or attorneys, they should ask more than “Do you work with people like me?” An agency that agrees to work with older couples or singles, for instance, may restrict the number of times they present those profiles to birth mothers. Ask an agency or attorney how many nontraditional parents they have worked with, and for their feelings about whether a child can thrive in a home with two dads, one mom, or older parents, to confirm that they will be genuinely enthusiastic about placing a child with you.

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Adoption Attorneys

Joseph, Wiernicki, & Schimming, P.C.
Rockville, MD
Jennifer Fairfax, Family Formation Law Offices
Jennifer Fairfax
Silver Spring, MD
Virginia L. Frank, PC
Boulder, CO
U.S. Newborn
Cofsky & Zeidman, LLC
Donald Cofsky
Haddonfield, NJ
Rosin Steinhagen Mendel
New York, NY
Sogand Zamani, Zamani & Associates
Sogand Zamani
Washington, DC
Nichols, DeLisle & Lightholder
Michael St. Andre
Southborough, MA
King, Spry, Herman, Freund, Faul, LLC
Dorota Gasienica-Kozak, Esq.
Bethlehem, PA
DeSmidt Rabuse PLLC
Jody Ollyver DeSmidt
Minneapolis, MN
U.S. Newborn, U.S. Foster, International, Special Needs/Waiting Child
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