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Center for Advanced Studies in Child Welfare

Center for Advanced Studies in Child Welfare

Adapting child welfare policy to accommodate the changing face of 'family' in the U.S.

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securinglegaltiesreport.PNGA new report authored by Movement Advancement Project, Family Equality Council, and Center for American Progress discusses how legal recognition of LGBT parents is important for their children's social, emotional, and physical well-being. Specifically, this report, entitled Securing Legal Ties for Children Living in LGBT Families, focuses on how marriage and parenting laws impact children in LGBT households, and it provides a framework for policymakers to draft new laws that protect these families and their children.

A child welfare perspective
The report provides several examples of the importance of recognizing LGBT persons as legal parents in terms of the child welfare system; for example:

  • When states are allowed to discriminate against prospective foster and adoptive parents due to their sexual orientation or gender identity, children in foster care who need permanency are given less opportunities in finding permanency.
  • A child who only has one of his or her LGBT parents recognized as his or her legal parent can unwittingly become involved in the child welfare system if his or her legal parent dies or becomes unable to provide care, and the state in which he or she resides does not have de facto parenting (or similar) laws.

A State Example: Child Welfare-Related Recommendations for Minnesota's Parental Recognition Laws
Recommendations for state-level changes in law and policy can be found in the appendices of the report; Minnesota's recommendations are found on page 62 and summarized below.

Foster care
  • Recommendation: Prohibit discrimination based on sexual orientation and gender identity for foster children and prospective & current foster parents in order to increase permanency outcomes for children in foster care.
  • Current Law: There is nothing in the laws saying whether counties can or cannot discriminate based on sexual orientation & gender identity for foster parents.
Joint adoption & second-parent adoption
  • Recommendation: Allow joint adoption by unmarried couples and extend the same non-discrimination privileges mentioned above to prospective adoptive parents. Allow an adult (with the consent of a legal parent) to adopt the legal parent's child in order to secure for the child legal ties to both parents.
  • Current Law: For both, the law is unclear as there is nothing in the statutes that discusses this; however, some jurisdictions have allowed both. (See also this, this, this, and this.)
De facto parenting
  • Recommendation: Allow family courts to recognize de facto parenting as a basis for custody and full parenting rights when in a child's best interests.
  • Current Law: Recognizes de facto custodians and interested third parties for custody/visitation, generally when the parenting occurs in the absence of a the legal parent; allows joint legal/physical custody.
Marriage
  • Recommendation: Recognize out-of-state same-sex marriage and allow same-sex marriage; would automatically recognize both parents in a marriage as legal parents upon birth of a child and would potentially allow the married parents to jointly adopt.
  • Current Law: Same-sex marriage is prohibited. There is a proposed constitutional amendment that will be presented to voters in Minnesota in November 2012 to constitutionally ban same-sex marriage.

Additionally, the Family Equality Council has several maps showing the different types of laws in each state related to this topic. Here are two (click on the maps to see all of the maps):equalitymaps.PNG

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