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Court Ruling May End Florida's Anti-Gay Adoption Law

By L.K. Regan

Two states in the U.S. forbid gay couples from adopting children: Florida and Mississippi. Soon, Mississippi may have to carry that banner alone. That's because a Florida circuit court ruled this week that the state's 31-year-old ban on gay adoption is unconstitutional.

The case in question concerned a learning-disabled 13-year-old boy who had been living since 2001 in Key West with a gay foster father. The two had originally been put together by a state agency, and in 2006 the foster dad (who was not named in court) was appointed the boy's legal guardian. He has fostered 32 children over the years, since gays fostering children is legal in Florida, even though adoption is not. In court, testimony was given that the boy's social worker had highly recommended approving the adoption, saying that the adoptive father and his partner provided a "loving and nurturing home"; and the boy himself came to court to describe his foster father as a "forever father." Circuit Judge David J. Audlin Jr., the ruling judge in the case, which was brought in Monroe County, said that, "Contrary to every child welfare principle, the gay adoption ban operates as a conclusive or irrebuttable presumption is never in the best interest of any adoptee to be adopted by a homosexual.'' He added that the adoption was in the boy's "best interest."

The ruling was greeted with cautious optimism by gay rights advocates. The Family Equality Council tells RealJock that, "The Monroe Circuit Court’s ruling allowing the gay foster parent of a 13-year-old child who emphatically wants this man to be his “forever father” to legally adopt him is a triumph for this family. While the ruling does not strike down Florida’s anti-gay adoption ban statewide, it does add one more voice to the many judges, officials and child welfare professionals who for decades have said that a blanket ban on gays and lesbians adopting in Florida is not in the best interests of children. The Family Equality Council is monitoring developments in adoption law in Florida very closely, and remains committed to working with our state partners to overturn this hurtful ban.”

Whether this ruling will ultimately change Florida's adoption laws is unclear. This is hardly that state's first round of court rulings related to its unusual ban on gay adoption, which was originally passed in 1977. Two 1991 rulings, one in Key West and one in Sarasota, rejected the law as unconstitutional, with no effect. The first of these was never published nor appealed, the second was overturned on appeal in 1995 by the Florida Supreme Court.

And yet, the reality is, of course, that many gays and lesbians adopt children. In fact, a recent study out of the UCLA law school said that four percent of adopted children in the U.S. are being raised by LGBT parents, with one in six gay men having fathered or adopted a child. How are they managing to do this? In Florida, they are not. Florida is the only state banning "homosexuals" explicitly from adopting. Mississippi bans same-sex couples, and Utah bans adoption for unmarried people who co-habitate. This means that a single gay or lesbian person could at least theoretically adopt in Mississippi and Utah, but not in Florida.

In some states, however, gay adoption is handled by a two-step process, which in a few states is explicitly designed to accommodate gay and lesbian couples. In a second-parent adoption, one parent adopts a child alone. Then, once that adoption is legalized, the original parent and his or her partner can apply to add a second parent, without voiding the rights of the first parent. This is laborious, expensive, and demeaning—but it is the standard way that adoptions are accomplished in states that do not have laws pertaining to gay marriages, but where gays and lesbians cannot marry.

What is the status of your state? According to the National Gay and Lesbian Task Force, the states break down like this:

One state where second-parent adoption is authorized by statute and where appellate courts have ruled that the state adoption law permits second-parent adoption: California

Three states where second-parent adoption is authorized by statute: Colorado, Connecticut, Vermont

Six states (plus the District of Columbia) where appellate courts have ruled that the state adoption law permits second-parent adoption: District of Columbia, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania

Fifteen states where trial courts have granted second-parent adoptions: Alabama, Alaska, Delaware, Hawaii, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, Washington

Three states where appellate courts have ruled that the state adoption law does not permit second-parent adoption: Nebraska, Ohio, Wisconsin

Twenty-two states where it is unclear whether the state adoption law permits second- parent adoptions: Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wyoming.