Protecting Our Children, With or Without Marriage

Find Your State

Know the laws in your state that protect LGBT people and people living with HIV.
From Lambda Legal Of Counsel; vol 1, no 4
March 2, 2007

Lambda Legal's broad work for families includes our fight for marriage equality, of course, because married parents and their children benefit from so many legal protections. But our parent-child project aims to cement legal ties between LGBT parents and their children regardless of whether parents can or do marry. Our children need the same legal protections that married and unmarried heterosexual parents take for granted.

Our families' legal "security blanket" is a patchwork quilt that is being added to and stitched together by Lambda Legal and cooperating attorneys every day. More and more families can count on its shelter as we build up the law of adoption, custody, parentage, intended parenthood and remedies (equitable and otherwise) to reinforce this blanket of protection.

Family law is state-based, and so is our parent-child work. Alabama is not Vermont. California is not Ohio. From Lambda Legal's offices across the country, we develop expertise specific to each state so that, wherever LGBT families live, we can give them the best chance at security both now and in the future.

In the past year alone, we have had more than 20 LGBT and HIV-related parent-child cases on our docket, and we've worked informally on countless more. In 2004, we fielded more than 500 Help Desk calls on parent-child issues. These numbers reflect the importance of what's at stake for our families — but also the determination of evangelical activists and other ideologues to reverse the tremendous progress we have made nationally.

In this environment, Lambda Legal's experience and pool of cooperating attorneys are more important than ever. As our opponents shamelessly bring cases to dismantle adoption decrees that a lesbian or gay couple freely entered into, their motivation becomes ever more apparent: They seek to entrench a public policy that values only married heterosexual households, regardless of the cost to our children. Lambda Legal is working to make sure that ideology does not cloud the settled law that treats these orders as final.

Nor can we let succeed the orchestrated propaganda effort that manipulates research to denigrate LGBT parents and win support for this cramped vision of family. In courts, legislatures and the media we face an old strategy of repeated lies about LGBT families, in hopes that they will drown out the consensus of major child welfare, medical and mental health groups that our parents and families should be treated equally.

Lambda Legal knows well what we are up against — and we also understand that courtrooms exist to separate truth from fiction. We help judges see that loving parent-child bonds are not determined by sexual orientation, HIV status or gender identity, and these bonds deserve protection. That's why the vast majority of states now demand proof of an adverse impact on a child before they take such factors into account in custody or visitation cases. That's why in more than half of all states, people who parent children by every real measure of the term can secure the right to remain in their child's life, even if there is no biological or adoptive tie. That's why more states are securing parentage at a child's birth when two same-sex parents are involved, and courts in more than half the states permit second-parent adoptions.

But the more success we've had in getting nondiscriminatory laws applied, the more our opponents have resorted to trying to pass overtly discriminatory laws. Most but not all of these initiatives have failed in our state legislatures. Lambda Legal is now moving forward on a federal court constitutional challenge to a senseless Oklahoma law that says that adoptive children of gay and lesbian couples won't be recognized as such when they are in Oklahoma. Other "signs of the times" cases include our challenges to an Indiana trial judge's refusal to honor a lesbian couple's Indiana adoption decree, a Virginia court's refusal to follow a Vermont court custody order arising from a civil union dissolution or even to recognize a lesbian mom as a parent, and a California medical practice's refusal to provide infertility treatment to lesbians.

There is no shortage of work, and no shortage of success. Together with our cooperating attorneys we are continuing to build positive precedents for our families throughout the country:

  • In September, we convinced a Maryland appellate court to rescind an order giving a grandmother custody of a child over an HIV-positive parent.
  • In August, the California Supreme Court issued landmark rulings in three cases in which we fought for equal treatment of LGBT parent-child relationships.
  • In July, after Lambda Legal supplied expert evidence, a Mississippi court lifted a restriction against a child being in the presence of her HIV-positive aunt.
  • In June, we convinced the West Virginia Supreme Court to recognize the custodial rights of a child's lesbian de facto parent, and the Maryland Court of Special Appeals to permit a gay father to challenge a harmful restriction on his partner's living with him and his child.
  • In April, the Virginia Supreme Court agreed with Lambda Legal that the names of both lesbian parents must be put on their child's birth certificate.
  • In March, the Pennsylvania Superior Court sided with our client and held that a court cannot give in to the efforts of one parent to alienate the child from her lesbian ex-partner, who stood in loco parentis, by ending the latter's parent-child relationship.

    Our test-case practice fills an important need — but our parents and children need more basic help as well. The reality of family court is that bad rulings are made when an unrepresented or low-income party is taken advantage of because of circumstances — for LGBT people this often means trading away basic rights we do have because of a lack of alternatives. Lambda Legal is looking to link more community members who need help with pro bono resources. Is your firm in a position to represent an LGBT or HIV-positive parent who would not otherwise have the financial resources to fight for a parent-child relationship in court? Would you be willing to donate your services and/or court costs? Do you speak Spanish or other languages besides English? Please let us know today. Our families need you and so do we.