Can Gay couples adopt in Arizona?

Yes, but only through a loophole.  Let me explain…

Where we are now:  Arizona adoption statutes do not allow same-sex couples to jointly adopt – even after Arizona’s gay marriage ban was overturned.  The Arizona adoption statutes still limit those who can adopt to:

  • an adult (married or unmarried) may adopt alone, or
  • “A husband and wife may jointly adopt children.”

Limiting joint adoption to “husband and wife” only has impacted others outside of gay marriage as well.  For example, a Grandmother raising her grandchild comes in wanting to adopt her grandson (as a second parent) with her own daughter.  They are essentially raising this child together and grandma wants equal rights.  This is prohibited in Arizona.  Non “husband and wife” couples cannot adopt together.  Either grandma remains the child’s grandmother or she can legally adopt him and her daughter will have no legal parental rights.  In Arizona it is one or the other.  In this type of scenario, the law makes more sense; they are not united as a couple by marriage or any other means.  But for a couple who would be married, but for antiquated marriage laws, or who are married but do not fit the traditional definition of “husband and wife” it is much different and more discriminatory.

Before the ban on same-sex marriage was struck down in Arizona, only the biological parent in a same-sex relationship could be the legal parent.  And only one member of a same-sex couple seeking to adopt could be the legal adoptive parent.  When only one of the spouses is the legal parent, even though both are equally involved in the day to day parenting, this can potentially create logistical and legal problems when seeking medical care, enrolling children in school and even in the dissolution of the relationship.

The Arizona adoption statutes still limit joint adoptions to “husband and wife.”

The good news:  There’s a way around this antiquated law: step parent adoptions.

If one of the marriage partners is already a legal parent, the spouse can commence a second parent adoption proceeding in Arizona, commonly referred to as a Step Parent Adoption.  Why does this loophole work?  This is a legitimate way to create a legal family because the Arizona step parent adoption statutes refer only to “spouse” and not “husband and wife.”  While this often requires two separate adoption hearings (unless the first parent is a biological parent); the end result is the same.  Once the process is completed, both spouses in a same-sex marriage are legal parents of the child.  Both spouses are listed as parents on the child’s birth certificate.  Both spouses share equal custodial rights allowing them both to equally make medical and educational decisions for their child.

Worth Noting:  The Arizona step parent adoption statute requires that the adopting second parent be married to the legal parent for at least one year prior to the adoption.  There is an exception that some Judges are willing to utilize.  The statute provides that the Court “may” waive this requirement if it is in the child’s best interest to do so and special circumstances exist.  For this type of case, the “special circumstance” is the evidence of a long history of commitment between the parents and the fact that they had been previously been barred from legally marrying.

Many of these families have existed for years.  It is so heartwarming and satisfying to help them become a legally recognized family unit and to help give them the equal parental protections that others have enjoyed for so long.

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