When I started practicing family law in 2006, LGBT couples faced more challenges with same sex couple adoption than they do today. Following the U.S. Supreme Court’s 2015 decision recognizing same-sex marriage (Obergefell v. Hodges), society in general has become more supportive of gay adoption. I also find that many birth mothers choose same-sex couples over heterosexual couples. In addition, all states now recognize the right of married, same-sex couples to adopt a child, including Texas.
The adoption process for married gay couples is very similar to heterosexual couples in Texas. However, I highly recommend seeking the guidance of a family law attorney who specializes in LGBT adoption because they understand adoption law, as well as the challenges lesbian and gay couples, may face within the local courts and counties where the attorney practices.
In my experience, I find some family courts to be more supportive of prospective parents seeking a same-sex couple’s adoption than others. One judge told my gay clients, “I don’t care if you have polka dots. If you’re going to give the child a good home, I’m going to agree to the adoption.” Those are the courts I go to when I need to file paperwork for my gay parents’ adoption cases.
I usually work with judges who are familiar with both me and the LGBT couples’ adoption process, which helps ensure a better path forward for my clients. So, whether you live in Texas or another state, be sure to find an experienced adoption attorney who understands the complexities of gay adoption in the area where you live.
Adoption comes with legal, financial and emotional risks
Heterosexual, lesbian and gay adoption processes all come with risks, so be sure to speak with an experienced adoption attorney to prepare yourself. One of the biggest risks is the fact that the birth mother can’t relinquish her rights to the child until at least 48 hours after the birth. That means you could invest your emotions and thousands of dollars in this birth mother and the adoption, and she could decide to keep the baby and not owe you a penny.
In addition, in many adoption cases, the birth father is unknown, so you may not have access to his medical or mental health history. You could also have a potential father pop up after you’ve taken your child home but before your attorney is able to terminate his parental rights.
For adoptions in Texas, you are required to search the Texas Paternity Registry when a known father does not exist. Alleged fathers must file a notice of intent to claim paternity prior to a child’s birth or within 31 days afterward. If no man claiming to be the child’s father is found in the Texas Paternity Registry, your attorney can file paperwork to terminate the unknown father’s parental rights.
Learn more about fathers’ rights in Texas here.
How adoption agencies help gay parents adopt
In years past, it wasn’t easy for same-sex couples to find an adoption agency that would help them on their adoption journey. Even today, some agencies—typically those aligned with religious organizations—won’t handle adoption for gay couples.
Fortunately, many wonderful adoption agencies exist in Texas and other states to help same-sex couples start a family. If you’ve retained the services of an adoption attorney, he or she can provide you with a list of reputable adoption agencies to consider.
Adoption agencies provide many services for prospective parents. First and foremost, they help connect hopeful parents with potential birth mothers. Agencies can also arrange for counseling for birth mothers and prospective parents, facilitate the required paperwork and mandatory home study, and work out details regarding what you will need to pay for the birth mother’s expenses.
Keep in mind, if you live in Texas, you are not allowed to provide the birth mother with any kind of financial compensation outside of medical, legal and counseling expenses, unless you involve an agency. For example, the agency may ask you to provide the birth mother with additional money to cover living expenses, transportation to doctor’s visits and other needs.
ALWAYS have an attorney review same-sex adoption contracts
When it comes to working with adoption agencies, do NOT sign on the dotted line until you have an adoption attorney review the contract. While most agencies are on the up and up, the first contract I ever reviewed was from an adoption agency in California. The contract stated the agency would bill my clients $50,000 once they were “selected” by the birth mother, which meant my clients would have been out $50K if the child wasn’t placed with them.
Most reputable adoption agencies will break payments down into installments. In general, you pay some amount at the outset because they’re creating your file and facilitating the process, which includes showing your birth mother profiles and showing your profile to prospective birth mothers.
You’ll typically pay additional installments once a child is placed with you, when you leave the hospital with a baby and once the termination of the birth parent’s parental rights occurs. With installments, you pay as the adoption progresses as opposed to the California agency example when a birth mom picks you.
Four important things to consider during the LGBT adoption process
No. 1: You will need to meet certain legal requirements for Texas adoption.
In order to adopt a child in the state of Texas, you will need to meet certain requirements set forth in the Texas Family Code Chapter 162 on adoption. These requirements apply to adoption for gay couples, lesbian couples and heterosexual couples. If you are a prospective parent seeking to adopt a child in Texas, you must be:
· At least 21 years of age.
· Married to your partner if you plan to adopt a child as a couple. (Eligible single people, including LGBT adults, are allowed to adopt in Texas.)
· Physically and financially able to support a child.
· Able to pass a thorough criminal background check.
· Willing to undergo a home study by a social worker, where you are able to show you can provide an emotionally and financially stable home environment for the child.
No. 2: It really helps to prepare an adoption budget at the outset of the process.
I would love to tell you how much it costs to adopt a child in Texas but it depends on so many different factors. That being said, you really need to have your budget in mind, so how much can you afford? What are the financial needs of the birth parent? Some birth mothers come to the agency later in the pregnancy, so the amount of support isn’t paid very long. Others come in very early, so the amount of support they need will be more extensive.
It’s also highly recommended that you hire a family law attorney to review adoption contracts and provide additional insight regarding same sex adoption. Consequently, your adoption budget needs to include legal expenses for you and the birth mother.
As noted earlier, Texas won’t allow you to provide any kind of financial compensation to the birth mother outside of medical, legal and counseling expenses, unless you involve an agency. If the birth mom needs additional financial support, you’ll pay the adoption agency fee on top of the expenses paid to the birth parent. You will also be responsible for paying for the required home study, which will be performed by a social worker in your home.
If you will be pursuing a private adoption—where you will be dealing directly with the birth mother and no agency is involved—you will typically pay less because you can avoid the agency fee. In many private adoption cases the birth mother will receive government assistance for medical expenses, but if she doesn’t, you may be responsible for her medical bills. A family law attorney specializing in adoption can provide additional insight on private adoption and the legal steps you will need to take.
No. 3: You should discuss what information you need about the birth parents and the child with your spouse.
This step is critical because you and your spouse may not agree on what’s important to know prior to the adoption. Having a conversation about your concerns and desires before approaching an agency or private party can save you a lot of headaches later on. For example, some people really want information about the birth father’s background, while other prospective parents do not.
You should also decide whether you and your spouse would be comfortable adopting a child who was exposed to drug use, because a large percentage of placements involve those children. People always envision the birth mother as a 16-year-old girl in high school. In reality, she’s more likely to be someone in her thirties who already has kids and knows she can’t take care of another one.
Information about the birth parents’ mental health is also critical. When clients tell us the birth mom disclosed any kind of mental health history, we tell them to speak to a mental health professional. Some mental health issues are genetic, while some are not, so you want to make sure you understand the potential risks of adopting a child that comes from a history of schizophrenia, bipolar disorder or other mental health conditions before you adopt.
No. 4: If the child is of Native American descent, you should educate yourself about the Indian Child Welfare Act.
The purpose of the Indian Child Welfare Act was to keep Native American children with Native American families. While your family law attorney can fill you in on the details and risks, if the child you hope to adopt is a Native American child or one of the parents is a registered member of an Indian tribe or has the right to be, you must notify the tribe you plan to terminate the parental rights of somebody who is a registered member or has the right to be.
The law gives the tribe the right to intervene in adoptions, take possession of the child and place them with another Native American family. Most tribes are pretty accommodating nowadays, as long as the adoption is a great placement and you represent to them that you will make sure the children will be made aware of their heritage. Keep in mind, there is no statute of limitation on this law, so you could risk losing a Native American child you adopt if you don’t abide by the tribe’s and the law’s guidelines.
Our Texas family law firm can help guide you on your same-sex adoption journey
If you’d like to learn more about LGBT adoption and speak with a family law attorney Fort Worth-based, the Sisemore Law Firm would be honored to speak with you. To schedule a confidential case review, please call our office at (817) 336-4444 or connect with us online.
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