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Gay Parenting 101: Tools to Protect Gay and Lesbian Families - Part 1, Second Parent Adoption - Mo's Journal
August 9th, 2006
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Gay Parenting 101: Tools to Protect Gay and Lesbian Families - Part 1, Second Parent Adoption
The previous entry detailed some of the problems that can occur when same-sex parents have unequal rights, as most such couples do in the U.S. The next few will talk about some of the legal tools available to grant rights to the non-biological mother, in the case of lesbian couples using donor insemination, or the second adoptive parent, in the case of gay male or lesbian couples adopting.

The oldest and most widely used tool is something called Second Parent Adoption. I'll explain what it is, how it works, where it's available and what's wrong with it.

Second Parent Adoption was invented by attorneys at the National Center for Lesbian Rights based in San Francisco. The first second parent adoption was granted in 1987 in California, and there have been second parent adoptions granted in close to half the states in the US (although it is a legal tool available state-wide only in a handful).

Second parent adoption is a new legal tool based on an old one: step-parent adoption. Step-parent adoption occurs when a child who has only one legal parent (generally because of the death of the other parent) gets a second one. Say you have a woman whose husband has died. She remarries and after some time comes to feel that her new husband’s role in her child’s life is truly parental and wants legal recognition of that. She then petitions that the new spouse be granted full parental status and the state approves.

Step-parent adoption differs considerably from the more common forms of adoption (which are often called “stranger adoption”). There is no home study to determine fitness of the parents. There is no “surrender” of the child, since the child is not moving from one family to another. The adoption is done solely because the parties are married, the legal parent requests it and the new spouse wishes to be a parent. It’s a relatively easy, relatively cheap, minimally intrusive procedure in all 50 states.

Second parent adoption was first granted in California and has spread to other states by analogy with step parent adoption. Those asking for the adoption to be granted say that the biological or adoptive parent should have the right to add a second parent who is not married to her/him just as s/he would a spouse. Arguments in favor have generally come from the idea of the best interest of the children. Children are very much disadvantaged when one parent is unacknowledged and has no legal rights or responsibilities. Decades of research have shown that children of same sex couples do as well as those of opposite sex couples psychologically and emotionally, and it only seems fair that they should have the same legal protections. Very mainstream organizations like the American Academy of Pediatrics and American Psychological Association have come out in favor of second parent adoption.

The results in court have been mixed. A map showing where second parent adoption is available can be found here . It actually paints a little too optimistic a picture, since some of the states marked as “unknown” have since been ruled out for second parent adoption with the wave of often very broad legislation and constitutional amendments enacted to discriminate against same-sex couples. For example, in Virginia second parent adoption has been ruled out, as has any recognition of same-sex relationships. Also, the states where trial courts have granted second parent adoptions are ones where at least one has occurred. In many cases, this means only that if you are an exemplary case and you get the right judge, you can get a second parent adoption, not that it is generally granted.

Still, there are whole states and parts of other states where this is an option and it does in fact grant full parental rights to the second parent. For many of us in many places it’s the only tool we’ve got and we’re grateful for it. The first second parent adoption in NY occurred in 1992, when my son was four years old. I knew the family slightly. One of the mothers is a pediatrician and the other has a PhD in child psychology. They were financially secure, had been together for years before they had a child, their relationship and desire to parent together was well documented long before the pregnancy. They were considered a good first case.

I sat in a community meeting where a group of gay family lawyers talked about who should go next after we had that first one granted. The criteria we were given were: long term relationship prior to birth of child, documentation prior to conception of intention to parent together, financial security including joint ownership of a home, advanced degrees for both parents (preferably in education, medicine, psychology or related fields), supportive extended family on both sides. It was demoralizing to listen to. The woman next to me whispered, “Do we stand up and walk out when they get to the part that rules us out?” I was there until the last one – my parents disowned me when I came out, so we weren’t good candidates. I suppose I don’t have to say how unfair it is that heterosexual couples don’t get scrutinized in that fashion when they have children, just to give their kids basic rights.

In some places second parent adoption is still in that groundbreaking state, and it’s a hard and uncertain process. In some it’s pretty routinized. So, what’s wrong with it?

- It’s expensive. This varies from place to place. It can be just a few hundred dollars or a few thousand. It depends in large part whether you need a home study (you do in NY), need specialized and extensive legal help, need one or more court appearances. Remember, straight couples get equal parenthood for free. It comes with marriage (which comes with gifts and financial advantages and health insurance, too!) Lesbians and gay men typically have to spend a lot of money to have children. We do it gladly, but we’re often very stretched when we do. It’s disheartening to have another big expense on top of sperm bank fees and health insurance (which we don’t always get through the usual spousal means, remember) or adoption agency fees.

- It’s intrusive. Again, this varies from place to place. If you need a home study, someone has to come to your home and evaluate you as parents. In some cases a guardian ad litem is appointed to represent the child’s interests, which sort of suggests that the parents don’t represent the child’s interests. In less intrusive situations, you still have to get signed affidavits supporting your petition to adopt. Courts have typically not been friendly to our families and our community, and it’s scary often for lesbian and gay parents to have that kind of intrusion. It’s scary for the kids, too, if it’s not being done when they’re infants. In places where it’s expensive and a long and protracted process, parents often wait until they complete the family to go through second parent adoption. They have to do a separate petition for each child, but can do one home study. Children old enough to be questioned in the home study can feel like their family is tenuous, or that they might be taken away from their parents.

- It’s too late. At best it can be completed in a few months – in my state and some others it generally takes two years or more. Childbirth is quite safe but women do die during childbirth. Women die after childbirth and before a long legal process can be completed, including in car accidents and from illnesses. Couples break up, too, before second parent adoption is completed. We need to do all the not quite parenting legal documents I described those who can’t get full legal status as doing, even if we’re doing second parent adoption, because we can’t wait for second parent adoption and we need whatever little protection we can have in the interim. And those cost money, too.

-It’s not universally available. If you live in Virginia, it’s not much consolation that you could get a second parent adoption if you lived in New York. If you live in the right part of Minnesota (like my sister and her wife do) it’s pretty easy to do. I did one of the affidavits and my nephew had two legal parents before he was four months old. If you live in the wrong part of the state, though, you don’t get to do it at all.

- It’s not durable. Couples have done second parent adoption and then moved to states where their equal parenthood has not been recognized. Couples have done second parent adoption and then the bio mother has left with the child and moved to a state where her ex is no longer a parent. A woman named Sharon Silverstein tried to have all California second parent adoptions nullified when she broke up with her partner and coparent and wanted to undo the second parent adoptions she had agreed to. California was the first state to have second parent adoption and has the most in the country. Silverstein won at the appellate court level and the legal status of thousands of families was in question. She lost at the court of appeals level and the state legislature also stepped in and there are again options for same-sex parents in California, but no one should have to live with the uncertainty that was rife in that state when the case was unresolved. Some of the cases in other states are still unresolved. Children of heterosexual parents don’t have to worry about whether they have rights to their parents’ support based on what state they live in. Ours shouldn’t either.

- It’s offensive. Even if it goes really well, even if it's treated just like a step-parent adoption and the biological or adoptive parent's say so is sufficient to grant it, even if it’s minimally intrusive, even if it doesn’t cost much - second parent adoption is a legal fiction that protects our families only by forcing us to deny them. Adoption is a wonderful legal tool for bringing children into a family and if done properly protects the rights of all - the birth parents, the child, and the adoptive parents. Step-parent adoption is an excellent way to bring legal acknowledgement to a change in a family when a single parent marries and the new partner over time becomes a parent. But in both cases adoption is about legal recognition of change in a child's parents. It is just the wrong tool to acknowledge parenthood that has had no change. My ex and I were equal parents from the start. We conceived of our kids before we conceived them, planned and hoped and struggled through years of infertility together. We were parents from the start. We’re not step-parents and we shouldn’t need a legal process that demands that we pretend we’re becoming what we always were just to receive the rights our families always should have had.



So, am I saying not to do second parent adoption? Not at all. In fact, I think those who can ought to do it even when other tools are available. For all its faults, it’s generally the best tool we’ve got. I think a special place in hell should be reserved for people like Sharon Silverstein who fuck with what little protection we have just to achieve their own selfish aims. By all means, go ahead and do second parent adoption if it’s available to you. But let’s realistically acknowledge its limitations and not present it as the answer to the problem of lack of legal recognition for same sex parents. It’s an answer for a few families and in general it’s the best or only answer for those who can do it. But it’s not an answer to the social and legal inequity as a whole.

Next Up: More Tools To Protect Gay and Lesbian Families: Civil Union, Domestic Partnership, and Marriage

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From:mofic
Date:August 9th, 2006 06:29 pm (UTC)
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I think I've fixed them. I'm such an html dolt.

This icon is my baby.
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From:mofic
Date:August 9th, 2006 09:11 pm (UTC)
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I have three. Here's my older daughter - she'll be 14 in the fall. My son will be 18. The baby is 11.
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From:mofic
Date:August 10th, 2006 02:12 am (UTC)
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Thanks!
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From:mofic
Date:August 9th, 2006 06:28 pm (UTC)
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Bet it dried up her subsequent sex/dating life permanently, though! :D JUST DESSERTS.

That's the one consolation for me. Her predecessors in other states largely got away with cutting the other parent out of the child's lives, unscathed. I've been saying for years that we need a community ethic that says this isn't acceptable, that doesn't let women just throw away the other parent just because they can. And I'm seeing with Silverstein that at least in California and at least if you threaten everyone's families and not just your own, there is such an ethic. She'll have to change her name and move to Virginia or something to live this one down.

Thanks for sending people here! And hugs to the squid.
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From:executrix
Date:August 9th, 2006 06:53 pm (UTC)
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Speaking of Virginia, Findlaw doesn't have the decision in Miller-Jenkins yet, but the NY Times covered it on the 5th (Adam Liptak, "Parental Rights Upheld for Lesbian Ex-Partner", p. A11) and this is the Findlaw news story:

http://news.corporate.findlaw.com/ap/o/632/08-04-2006/f33800167e6b8cad.html
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From:mofic
Date:August 9th, 2006 09:09 pm (UTC)
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Yeah, I'm planning on talking about Miller-Jenkins when I do civil union and marriage. I've been following it for some time. My lover thinks it's going to be our big win, eventually, that the Supremes will take it and find for us. But she's an optimist...
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From:executrix
Date:August 9th, 2006 10:33 pm (UTC)
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Oh, I hope she's right!
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From:mofic
Date:August 9th, 2006 09:10 pm (UTC)
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I live to serve :-).

Why artichoke?
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From:mofic
Date:August 9th, 2006 09:27 pm (UTC)
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And now I'm in on the choke joke too! It sounds like Dexcon was fun.
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From:shadowscast
Date:August 10th, 2006 01:41 am (UTC)
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Thanks for all this info. From my perspective up here, it gives me lots of good arguments for "why marriage is important" for whenever it comes up in conversation (as we approach the fall parliamentary session, when our stupidhead prime minister has promised to re-open the same-sex marriage question).
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From:mofic
Date:August 10th, 2006 02:10 am (UTC)
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He is rather a stupidhead, isn't he? My main conclusion - which I'll get to after I go through the other kinds of protections - is that only marriage will work in this country to protect our families. And it has to be real marriage, like you have in Canada, not the lesser version we have in Massachusetts. But ironically, marriage is much less important in Canada, just because it confers much less in the way of rights and obligations. And that's likely why the marriage rate is so much lower in Canada than in the US and has been for a long time. Of course it's possible that the coming spectre of same sex marriage just destroyed traditional marriage in Canada as it threatens to do here :-).
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From:shadowscast
Date:August 10th, 2006 02:17 am (UTC)
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I don't know about the rest of Canada, but here in Quebec the low marriage rate apparently mostly has to do with backlash against the Roman Catholic church.

Amusingly, a friend of mine who's been living with her opposite-sex partner for four years recently told me that although she used to be staunchly against marriage (for herself), she's starting to reconsider, as gay marriage has helped to lift the stigma of repressive patriarchy from marriage.

So maybe gay marriage will save marriage!

Certainly, I've been asked "why did you get married, anyway?" quite a few times by my peers. Like it was a very odd decision to have made, and required explanation. (I do in fact have a sincere and somewhat long-winded explanation, which I'd be happy to go into if you're interested!)
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From:mofic
Date:August 10th, 2006 02:21 am (UTC)
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I don't know about the rest of Canada, but here in Quebec the low marriage rate apparently mostly has to do with backlash against the Roman Catholic church.

Quebec has the lowest marriage rate in Canada, so that may be part of it, but it does have civil marriage. I've always thought that the low marriage rate in Quebec comes from women not being allowed to change their names upon marriage - the marriage rate dropped precipitously when the law was passed. It's as if that was the last real benefit of marriage (if you view it as a benefit) - a free name change.

I would like to hear your explanation for your marriage, although I don't think you need to justify it.
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From:shadowscast
Date:August 10th, 2006 02:33 am (UTC)
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Yeah, the name thing in Quebec is weird. I'd never heard that cited as a reason people didn't get married, though. Interesting thought.

Anyway, I'm quite sure the backlash-against-the-church thing was a big part of it, as I've heard from many difference sources that it was part of the Quiet Revolution.

Btw, I think I need clarification on one point: by "civil marriage" do you mean "common law marriage" or "marriage performed by a civil rather than religious authority figure"?

I would like to hear your explanation for your marriage, although I don't think you need to justify it.

Maybe I'll do a post on it!
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From:mofic
Date:August 10th, 2006 02:39 am (UTC)
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Btw, I think I need clarification on one point: by "civil marriage" do you mean "common law marriage" or "marriage performed by a civil rather than religious authority figure"?

I mean marriage where nobody fights about it :-).

Seriously, civil marriage is marriage by the state, as opposed to a religion. Marriage is a religious institution, a legal institution and a social institution. Here in the US, we have same sex civil marriage only in Massachusetts (and without most of the rights of civil marriage for heterosexuals). But we have religious marriage throughout the country - for those religions that permit it. But religious marriages of heterosexuals get state approval, because the clergy is authorized to perform the marriage and sign the marriage license. It's just not a requirement that there be a religious ceremony.

Israel, by contrast, has no civil marriage. It's religious marriage or nothing. And for Jewish marriage, it's Orthodox or nothing. But they recognise civil marriages contracted in other countries.
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From:shadowscast
Date:August 10th, 2006 03:19 am (UTC)
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Oh! Okay.

So Dave and I had a civil marriage, for example (as we were married by a Justice of the Peace rather than a clergyperson).

Yeah. There's no legal difference between civil and religious marriages here, as far as I know. Basically, there's only one type of marriage, and you can have a religious ceremony around the signing of the certificate if you want to but it doesn't make a difference to the government.
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From:mofic
Date:August 10th, 2006 10:34 am (UTC)
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Yes, that's the same here. And civil same-sex marriage doesn't compel any religion to perform same-sex marriages any more than allowing civil marriage after divorce compels the Catholic Church to do so. That's why religious arguments against marriage equality are bullshit - it's all about civil marriages, not religious ones. My shul has marriage equality - we do both opposite sex and same-sex marriages as kiddushin (Jewish marriage). But only if it's opposite sex is there a government issued marriage license for the rabbi to sign.

But, anyway, my point in bringing up civil marriage (which was lost, I think) is that if people in Quebec are angry at the Catholic Church they don't need to get married by the church. If they value marriage as a concept but don't want a church-sanctioned one, there's always civil marriage. Which brings me back to marriage not conferring rights in Canada that you can't get otherwise. So if you don't want church imprimatur on your relationship, then there has to be something else about the ceremonial aspect or the communal aspect or the government aspect that appeals to you, I guess, in order to want a marriage. And when you write your post about why you and Dave got married, I'll find out which it was for you!
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From:shadowscast
Date:August 10th, 2006 04:05 pm (UTC)
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Oh! I think you're not quite understanding the backlash-against-the-Church thing. Marriage is something the Church said you had to do, so now a lot of people won't—civil ceremony or not.

Having a civil rather than religious ceremony was something that was very important to us, though. My parents wanted us to get married in their church (for, among other reasons, the practical one that it was a building we could rent very cheaply!) but Dave and I consulted with the minister and discovered it would not be possible for him to perform a completely non-religious ceremony—so we went with a Justice of the Peace in a different location, instead.
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From:mofic
Date:August 10th, 2006 04:09 pm (UTC)
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Oh! I think you're not quite understanding the backlash-against-the-Church thing. Marriage is something the Church said you had to do, so now a lot of people won't—civil ceremony or not.

I guess that makes sense. Although having a marriage that the Church won't recognize seems just as much sticking it to them to me as not doing it at all. Different strokes and all that. And, coming back to the whole legal climate thing, since common law couples in Canada have the same rights as married ones, marriage doesn't really buy you much unless the ceremony and party and gifts and social aspects are meaningful to you.
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From:shadowscast
Date:August 10th, 2006 04:21 pm (UTC)
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Afaik, common-law couples in Canada don't have quite all the same rights as married ones—for instance, the Nova Scotia gov website says "Filing a domestic partners declaration provides the partners with many of the same rights and obligations that married couples have under a number of Nova Scotia statutes," [emphasis mine]. It's something that varies by province, and honestly I'm not even sure what the situation in Quebec is (their website was less helpful!).
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From:mofic
Date:August 10th, 2006 04:36 pm (UTC)
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Do you know what rights common law couples don't have? I thought that was the anti-same-sex marriage argument before the Supreme Court, that same-sex couples already have all the *rights* and that the ceremonial aspects are rightly reserved for opposite sex couples because of religion and tradition and blah blah. But that the Supreme Court rejected that saying that having one's relationship recognized as on equal footing with other married couples *is* a right. But it's a long time since I read all this stuff and I could be misremembering. I do know that a whole lot of stuff that we can only get through marriage in this country comes with common law in Canada.
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From:shadowscast
Date:August 10th, 2006 04:54 pm (UTC)
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No, I'm not sure what the actual differences are (and I've just been trying to find out online without success).

About the only thing I know for sure is that income taxes are identical for legally married and common-law spouses here.

If I remember the situation correctly, back when the same-sex marriage challenges were happening, the government proposed to create a legal status which would be identical to marriage in every way, but not called "marriage" (a rose by any other name?). But the courts basically said "not good enough," and we got real same-sex marriage.
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From:candrawest
Date:August 16th, 2006 02:32 pm (UTC)
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Rather late with the reply.

Step-parent adoption differs considerably from the more common forms of adoption (which are often called “stranger adoption”). There is no home study to determine fitness of the parents. There is no “surrender” of the child, since the child is not moving from one family to another. The adoption is done solely because the parties are married, the legal parent requests it and the new spouse wishes to be a parent. It’s a relatively easy, relatively cheap, minimally intrusive procedure in all 50 states.

Interesting that, I had kind of assumed that there was some degree of home-study involved in step-parent adoptions because 38 years ago my parents had to deal with home study when my father adopted my sister. Of course, many things have changed since then, but because that was the single case I heard things about, I had assumed it applied across the board. Though in my parent's case, it could easily have been a requirement by the Navy to extend dependant benefits to my mother and my sister rather than a requirement for my sister to be considered his daughter in civilian matters. Interestingly, my mother's impression was that the home-study was less concerned with validating the parental relationship between my father and my sister and the co-parenting of my parents than with ensuring that my father was the only man around taking (or being asked to take) paternal responsibility for my sister. Which of course suggests it was Naval paranoia, rather than legal rules.

Here in Canberra, we have an odd situation. Same-sex couples *can* be recognised as de facto (with most of the benefits of marriage), but they have to specifically declare the relationship, whereas heterosexual couples are considered de facto just by co-habitating for (I think) three months. But though the relationship itself has very little automatic protection, the children of the relationship are far more protected here than most other places. Birth certificates here now include mother and partner (or possibly parent), giving lesbian couples equal footing to unmarried heterosexual couples (married couples have less paperwork involved in registering their child's birth). I believe that a mother's name is required, meaning that homosexual male couples can only obtain equal parental rights through adoption. Canberra, unlike most of Australia, permits homosexual couple adoption, giving both parents equal rights and responsibilities over the child from the beginning. Further, those same law reforms permitted homosexual partners to claim workmen's compensation and wrongful death payments for the death or injury of their spouses. I don't know how fairly the laws are enforced, but I know that the laws themselves have been written with the aim of treating homosexual partnerships equally with their heterosexual couterparts. There is still a long way to go here, as there still numerous rights of marriage denied to long-term homosexual couples, but if I had to choose a place to raise children with a same sex partner, Canberra would win hands down over anywhere else in Australia.
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From:mofic
Date:August 16th, 2006 06:06 pm (UTC)
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Interestingly, my mother's impression was that the home-study was less concerned with validating the parental relationship between my father and my sister and the co-parenting of my parents than with ensuring that my father was the only man around taking (or being asked to take) paternal responsibility for my sister. Which of course suggests it was Naval paranoia, rather than legal rules.

Was your sister's biological father alive? It's definitely required pretty much everywhere that the couple prove that there is only one legal parent in order to do a step-parent adoption. And, of course, procedures vary from state to state, so maybe some do require a home study, just not the ones I know about.

Thanks for the info about Canberra.
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