With the Supreme Court decision Obergefell v. Hodges legalizing gay marriage throughout the country, a series of addition issues have arisen for same sex couples. One of these is the possibility of adopting children. Alabama has not been the most accommodating states towards same sex couples, with state legislatures doing all that is possible to limit the impact of that Supreme Court decision, while creating some unnecessary obstacles for same sex couples, including but not limited to the acts of marriage and adoption. That being said, there is no law that explicitly bars same sex couples from adopting children, so in theory couples who want to move forward with an adoption can do so.
Obstacles to Same Sex Adoption in Alabama
Alabama law states that a “husband and wife… may petition the court to adopt a minor.” From this language, we can see that there is not an explicit ban on same sex couples from adopting, though there is an implicit bias, as it were.
One of the biases that same sex couples may encounter is a result of House Bill 24, which was designed to protect the religious views of those who would object to an adoption by a same sex couple, so an agency or agency worker would be able to stifle the adoption process through a claim of a religious objection. This religious exemption rule only applies to private adoption agencies, ones that do not receive funding from state or federal sources.
Many states have laws that protect people on the basis of gender and sexuality, and Alabama is not one of those states. This creates difficulties for prospective parents, since they do not have legal protection within the state. At the same time, they may make an appeal to federal laws which offer protections to people based on gender.
Rules and Conditions for Adoption in Alabama
Many adoptions are joint adoptions, those between married couples. Since the legal language right now only states “husband and wife,” it is still unclear how this will impact same sex couples. The implication that the couple be married in order to move forward with a joint adoption could be interpreted as being in favor of same sex couples.
Another type of adoption is second-parent adoption, which is when a child is adopted by a parent in the home who is not the legal parent, and therefore does not share a legal or biological connection. At this point in time, this type of adoption is unavailable in Alabama, though courts have ruled that Alabama must recognize same sex parent adoptions that were granted in other states.
Stepparent adoption is where a child is legally adopted by the spouse of a child’s legal parent. According to the statute, there is nothing that should bar a same-sex spouse from going through with a stepparent adoption. In general, the adoption is considered consensual when the adoptee’s mother or presumed father grants it, or when the child, aged 14 or older, grants it.
Despite the bureaucratic and structural difficulties that exist, it is possible for same sex couples to move forward with an adoption. The language of many of the laws makes for some wiggle room that you and your Birmingham adoption attorney can navigate to your benefit.