Pasternak & Fidis Reporter

April 30, 2012

Adoption and Parentage in the District of Columbia—Closing a Loophole for Same-Sex Couples

A bill has been introduced in the District of Columbia City Council that would expand the authority of D.C. Superior Court to grant adoptions to same-sex couples. Under current law, a same-sex couple may adopt a child together if the petitioner lives in the District of Columbia or the child is in the legal care of the District of Columbia or a D.C. licensed adoption agency. A male couple who arrange for a private adoption of a child born in D.C. cannot adopt if they both live in Virginia because Virginia courts will not grant adoption to same-sex couples. The bill would allow this couple to adopt in D.C. Superior Court based on the child’s birth in D.C. The D.C. adoption decree will be entitled to full faith and credit (i.e., recognition as valid) in every state of the United States. Similarly, under this bill the female partner of a woman who gives birth in D.C. will be able to file a petition for adoption in D.C. regardless of where the couple lives.

The traditional rule about parentage states that there is a rebuttable presumption that a child born in wedlock is the child of the mother who gave birth and the mother’s husband. That rule has been expanded in recent years to take account of the varieties of ways that people become parents and form family relationships. For example, current D.C. law creates a rebuttable presumption that a child born to a woman is the child of the woman’s same-sex spouse or registered domestic partner. Thus, the spouse or partner need not adopt; she is already the child’s second mother under D.C. law. However, a court in a state that does not recognize the legal status of the two women as spouses or domestic partners may not recognize the parent-child relationship of the second mother. A judgment of parentage would be in order. However, if they live in a state that does not recognize their legal status they may not be able to get such a judgment.

The pending bill would allow the two women to file a petition for a declaration of parentage in D.C. Superior Court if the child was born in D.C. even if the parents are not D.C. residents. Once the parents have such a declaration, it is entitled to full faith and credit in every other state, even in those states that do not recognize the validity of the legal relationship of the parents to each other.

This bill, if enacted into law, will help to fill a gap for many same-sex couples who have created parent-child relationships through birth or adoption and want to make sure that these relationships are protected by law.