Marriage equality has helped LGBTQ parents and our children in many ways—but should we have to marry? A decision by the Pennsylvania Supreme Court will now make it much more difficult for both same- and different-sex couples to obtain co-parent (sometimes called second-parent) adoptions unless they are married.
The Case
The case, In re M.E.L., involved a divorced mother with sole custody of the child she had had with her former husband. The ex-husband stopped communicating with the child, and the mother ended his child support obligation. After he had not seen the child for more than two years, the mother sought to terminate his parental rights and have her new partner adopt the child.
The Supreme Court took the case on appeal from lower courts. The July ruling, written by Chief Justice Debra Todd, noted that Pennsylvania adoption law requires that when a legal parent consents to the adoption of their child, they must relinquish their parental rights. One exception to this relinquishment requirement is in stepparent adoptions, where the legal parent consents to the adoption of their child by a spouse.
For adoptions of a person’s child by a non-spouse partner, exceptions to the relinquishment requirement must be made via a two-step process, the court said in its analysis: First, the party must show why they cannot meet the statutory requirements for adoption; in other words, the court said, why they are unable to marry. Only then may they try to show the court (or in legal parlance, “show cause”) why the relinquishment requirement should be waived.
In its rationale for the process, the court pointed to its 2002 ruling that established the basis for co-parent adoptions by same-sex couples. At that time, the court noted, same-sex couples satisfied the first step above because they were legally unable to marry. They could then proceed to the second step and try to show cause for why the legal parent didn’t have to relinquish their rights.
The court also reasoned, “If a parent “does not first demonstrate why they cannot marry … this would “[render] the spousal requirements effectively optional, and the stepparent exception to relinquishment … largely unnecessary.” It added, “The relinquishment requirement was designed to promote the General Assembly’s clear goal of promoting adoptions by a spouse, in the context of an intact marriage.”
In the current case, the court said that the lower court never evaluated why the mother and her new partner could not marry. The ruling therefore sent the case back to the lower court to consider this point and determine if she could then seek to waive the relinquishment requirement so the adoption can proceed.
The lone dissent was from Justice David Wecht, although he concurred on procedural grounds that the case should go back to the lower court for reconsideration. Wecht disagreed with the majority’s reasoning, however, writing, “There is no ‘spousal requirement.’ The Adoption Act does not require parties to be married (or even coupled) in order to adopt…. That married stepparents get the benefit of a simplified path to adoption … does not inherently prohibit others from … demonstrat[ing] cause to excuse relinquishment.”
The majority’s two-part framework, Wecht wrote, “all but forecloses an adoption by a parent’s partner if the couple chooses not to marry.”
Rebecca Levin Nayak, a partner with Jerner Law Group in Philadelphia, who works with many LGBTQ clients, said in an interview that there is now “a much higher bar” when unmarried couples seek a co-parent adoption.
Exactly how high remains unclear. “There haven’t been cases yet where we’ve tested, under this new decision, exactly how ‘cause shown’ is going to play out,” she said, adding, “The landscape has definitely changed, where it’s a major concern as to whether these are going to get through or not.”
The Impact
Nancy Polikoff, Professor of Law Emerita at American University Washington College of Law and one of the leading experts in LGBTQ family law, said in an interview that even after same-sex couples could marry in Pennsylvania (2014), courts in the state had still been granting co-parent adoptions to unmarried same-sex couples.
Now that the court has said that all unmarried couples will first have to show why they are unable to marry, however, and because unmarried same-sex couples no longer have the previous excuse that they are legally prevented from marrying, their ability to do co-parent adoptions is also up in the air.
“This is going backwards because it’s taking away from same-sex couples in Pennsylvania what they had before marriage equality,” Polikoff said. “It’s meaning that fewer families can get the protection that adoption provides, because they’re not married.”
She also observed that the case, “because it was in the context of an unmarried heterosexual couple, never came to the attention of the LGBTQ Bar in Pennsylvania or to any of the national organizations that work on these issues.”
The Way Forward
One solution for an unmarried couple seeking a co-parent adoption would be simply to marry, but Nayak noted that there are many reasons people might not do so, from “deeply held beliefs” to practical things like “losing disability benefits or having tax ramifications be substantially different.”
Nonbiological parents in unmarried couples might still have some other paths to legal parentage, such as a parentage order (a court judgment establishing parentage), Nayak said, explaining, “That’s not something that we’ve historically done in this context because usually we’ve chosen the option of adoption. That’s just sort of been the standard and we haven’t put them through as parentage orders, but that’s a possibility that we have to explore.”
She added that there is some case law “that civil unions should be treated the same as marriage in Pennsylvania.” For people who, for financial reasons, don’t want a marriage that is recognized at the federal level, “getting a civil union from a state like New Jersey could be a viable option,” she said. Giving birth in another state might be a solution for some as well. “I don’t think it’s a one-size-fits all solution,” she explained, cautioning, “This all has to be tested, so I don’t know how any of these options will exactly play out.”
Nayak personally has seven client families that this decision will impact. She recommends that other unmarried couples also pursuing adoptions “should discuss their legal options with an attorney.”
Polkoff also said that the case shows why setting marriage above other family forms is problematic. Arguing for marriage equality because “it’s better for children” is “disrespecting the [gay] families that have been raising children together since the late seventies as unmarried couples and ignoring the research that says those kids are fine,” she explained. “Holding marriage up as the touchstone of the healthy way to raise children, I think is wrong.”
“You want to argue for marriage as a matter of equality, that’s a different thing,” she affirmed, but “Having the issue of who’s raising a child together turn on marriage has nothing to do with promoting the optimal care for a child.”
The ruling did acknowledge that some of the adoption requirements could be seen as “anachronistic,” but noted, “the General Assembly has not revisited these provisions, and they remain the law.” Whether the legislature chooses to act and how long it would take is an open question.