How has the legalization of same-sex marriage in Pennsylvania altered the adoption process for same-sex couples?
by Gabrielle Lee (Summer Associate)
“Any individual may become an adopting parent.” This statement, cited from Pennsylvania’s Adoption Act now rings true for same-sex married individuals seeking to adopt their spouse’s children through what is called a “second-parent adoption.” The Adoption Act provides that, unless the court determines otherwise, the consenting parent of an adoptee (the child to be adopted) must permanently relinquish all parental rights to his or her child unless the adopter is the consenting parent’s spouse.
Prior to Pennsylvania’s Whitewood decision, which struck down Pennsylvania’s law refusing to recognize same-sex marriages, this “spousal exception” did not apply to same-sex couples, whether lawfully married outside of Pennsylvania or not. Although the Adoption Act did not explicitly prohibit same-sex couples from adopting, it imposed additional hurdles not faced by opposite-sex married couples. Same-sex couples wanting to adopt had two options: either the consenting parent could temporarily relinquish all rights to the child and subsequently file for a joint adoption with the spouse, or the consenting parent could attempt to persuade the court that the adopting partner should be permitted to adopt while the parent retained custody. For the latter option, the court had the discretion to determine if the adoption was in the best interest of the child.
Fortunately, now that Pennsylvania recognizes same-sex marriage, married same-sex spouses no longer encounter these time-consuming and emotionally-draining hurdles that existed before Whitewood.