Can Same-Sex Couples Adopt in Utah?

Salt Lake City criminal lawyer

Alongside marijuana legalization, the legality of same-sex marriage has become one of the most prominent and controversial domestic issues of the past decade.  But because most of the media coverage and political debate have focused specifically on the institution of marriage, other family-related topics like divorce, custody, and adoption have been largely swept under the rug. In this blog post, West Valley City adoption attorney Darwin Overson explores same-sex couples’ adoption rights in Utah as the state’s laws continue to change.

Utah Supreme Court Legalizes Same-Sex Adoptions

Until the very recent past, same-sex marriage was illegal in the state of Utah — and consequently, so was same-sex adoption, custody, and divorce.

The first recognized marriage took place on December 20, 2013, after U.S. District Court Judge Robert J. Shelby ruled in Kitchen v. Herbert that Utah’s ban on gay marriage was unconstitutional. The issuance of marriage licenses was then halted, but resumed on October 6, 2014, after the Tenth Circuit Court of Appeals struck down the temporary ban.

Same-sex adoption followed shortly after, after the Utah Supreme Court ruled to lift the former stay. Troy Williams, the executive director of Equality Utah, said the ruling in favor of gay adoption “rectifies a major injustice,” adding, “Families all over Utah are celebrating having their families united.”

The ruling strikes at the heart of the legislature’s wording.  The original language used verbatim under Judicial Code §78B-6-117(3), which is part of the Utah Adoption Act, plainly states the following:

A child may not be adopted by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state.

Now that gay marriage has been legalized in Utah, the wording of the Adoption Act includes same-sex adoptions.  In turn, same-sex adoptions can include foster care adoptions, international adoptions, adoptions by step-parents, joint adoptions which don’t involve any biological ties, and adoptions involving surrogate mothers and other fertility options.  Under the revised laws as they currently stand, same-sex couples have full and equal adoptive rights.

happy mother with child custody

Eligibility Requirements for Adopting Minor Children

All of this comes as great news for same-sex couples.  But while long-standing legislative hurdles may finally have been removed, the fact remains that adoption is a lengthy, complex, and difficult process for any couple, regardless of sexual orientation.  Let’s take a closer look at some of the state’s adoption rules, requirements, and procedures.

To begin with, you and your partner cannot simply be dating or living together: you must be married.  Remember, unless you have entered into “legally valid and binding marriage,” you will not be legally permitted to adopt, even under the new laws.  However, single people can also adopt, as long as they are not living with a person they are dating.  Keep in mind that if you are married, you must have consent from your spouse to adopt.

Next, you must pass the two age requirements:

  • You (and your spouse, if you are adopting as a couple) must be at least 18 years old.
  • The child you are adopting must be at least 10 years younger than you.  For example, if you were exactly 18 years old, you would not be permitted to adopt anyone older than eight years old.

Simply passing the above criteria is not sufficient to be approved as an adoptive parent.  On the contrary, you must pass numerous inspections and qualifications as enforced by the Utah Division of Child and Family Services.

To give just a few examples of what prospective adoptive parents can expect, you’ll need to complete an approved training course, pass a comprehensive home inspection, obtain appropriate licensing from the Office of Licensing, and demonstrate that the adoption would not involve any conflict of interest.

Additionally, you and your husband or wife will both be personally screened to make sure you don’t have a criminal history involving child abuse or domestic violence, will have to undergo a behavioral evaluation, and demonstrate enough financial stability to accommodate the costs of caring for and raising a child.

It’s a vigorous and demanding process, but as any adoptive parent will tell you, is well worth the considerable effort involved.

If you and your spouse are thinking about adopting a child, don’t go it alone: get trusted and dependable legal advice from an experienced family law attorney who can guide you through the process and defend your legal rights at each step of the way.  Call Utah adoption lawyer Darwin Overson today at (801) 733-1308 to schedule a free and completely confidential consultation.

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