Gay Parents Exist, Legal Rights or Not

Barbara Lavender knows gay couples can provide supportive, loving homes for their children. She also knows these families are even more stable when both partners are legally recognized as parents. The Boulder lawyer knows this because she’s helped make it happen for 150 gay and lesbian couples.

While social conservatives battle a House bill that would allow second-parent adoption (which, as a Denver Post editorial points out today, isn’t the same as “gay adoption”), some gay couples in Colorado have been enjoying dual legal parental rights for years, thanks to Lavender.

Lavender started her private practice specializing in family law more than two decades ago. Over the years, she found herself increasingly focusing on gay families’ legal issues.

“I have a lot of GLBT friends,” she says. “Naturally, since I’m the family lawyer, they all wanted me to help them.” Lavender found a way she could help gay couples get joint custody of their children, but she wanted to take it further. She was hiking one day in 1988 when it dawned on her that there might be a loophole in the law. Lavender was thinking of the 1970s-era Uniform Parent Act (UPA), which was created to establish the paternity of a father who is not married to his child’s mother. Under the UPA, a man can get legal parental rights simply by filing under statute as long as there are no objections from the mother. The UPA also says “mother” can be substituted for “father.” Lavender thought it just might work for gay couples, and she was right. The state tried to fight her, but the Colorado Supreme Court threw out the lawsuit partly on the grounds that the state had no right to intervene.

Lavender says many gay parents who could get legal parental status under the UPA still have no idea the option exists. She’s tried to get the word out, but there hasn’t been a line out her door. That can be partly explained by the limitations for gays adopting under the UPA. For starters, the loophole only works for children who have been with the couple since birth and whose only legal parent is one of the partners. This situation usually happens when one parent adopts or gives birth or the couple has a child through surrogacy.

“These are the most planned children in the world,” Lavender says. “These kids are not accidents.”

The UPA helps the second “natural” parent claim his or her parental right over the child.

But another problem with adopting under the UPA is that successful claims by gays have almost all been filed in Boulder County. Lavender says it’s up to individual judges whether or not they approve such adoptions, and Boulder County judges have been accommodating. Lavender says that’s partly because they’re sticklers to the law and partly because they believe it’s in the best interests of the children.

“There’s a judicial leaning towards, ‘Let’s get these children parents,'” she says.

While Lavender’s work and the UPA loophole have helped many children gain the security of a second legal parent, it cannot compare to the protection and equality offered by House Bill 1330. The bill, which has passed the House and will next be debated in the Senate State, Veterans and Military Affairs Committee, will benefit all children who have only one legal parent – not just those of gay couples. A grandparent could adopt the child of a single mother, unmarried heterosexual couples could adopt each other’s children, and yes, gay men and women could adopt their partners’ children.

Lavender is glad the UPA has allowed her to give so many children two legal parents, but she says the passage of HB 1330 will make the adoption process for gay couples more accessible, more streamlined and most importantly, equal to the process for heterosexual couples.

Gay parents exist whether some people like it or not, she says.

“People aren’t going to stop forming families just because you say they don’t have legal rights,” she says. “The incidence of these families is not affected by what you do, but the welfare of the the child is.”

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Kerri Rebresh

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