The Supreme Court’s fateful decision in Obergefell v. Hodges will forever be an incredible achievement for the LGBTQ+ community. The landmark case declaring same-sex marriage legal across all 50 states celebrated its sixth anniversary this past June. Even still, with rampant discrimination, elevated homeless rates, and higher chances for sexual assault, the LGBTQ+ community has a tumultuous road ahead to achieve full equality. Simply granting the right to marry is not enough; as it stands, some gay couples are unable to access their constitutional right at all. This frustrating barrier finds its roots in a lack of legislation addressing the pre-Obergefell practice of adult adoption between gay partners.
Before the gay rights movement spearheaded successes like the Obergefell decision, LGBTQ+ couples had few means of acquiring legal status as a family. With limited options at hand, gay couples in the 1980s began to use adult adoption, in which one partner legally adopted the other, to ensure their partner’s inheritance, property, and hospital visitation rights. Unlike domestic partnerships, adult adoption allowed gay couples to achieve a “pseudo marriage” status, even if this meant that legally the couple would be considered parent and child. This was a common practice nationwide, especially with little expectation that gay marriage would ever become a constitutional right. Even so, it was not a practice fully welcomed. One New York court notably denied an adoption between a man and his gay lover in Matter of Adoption of Robert Paul P.. Here, the court refused to set a precedent for adult adoption as a “quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship, be it heterosexual or homosexual.” This was an outlier, however, as many other states instead approved adult adoptions between same-sex couples, as in the Delaware case of In re Adoption of Swanson.
Now that same-sex marriage is a constitutional right, the next step for gay couples who chose adult adoption as an alternative to marriage appeared deceptively straightforward: annul the adoption and get married instead. However, adoption is a primarily State-regulated practice, with variation from state to state. With no uniform legislation in place, gay couples wishing to annul their adoptions are effectively at the mercy of state judges, who have no obligation to grant the annulment requests. Furthermore, adoptions can already be difficult to annul without the added complexity of a desire to marry. Generally speaking, courts are reluctant to overturn adoptions unless there was fraud, deceit, or undue influence present.
The question remained: what if the couples were to marry regardless of the legal barrier in place? After all, the couples were not truly related and did not desire a filial relationship. Unfortunately, same-sex couples who try to marry while the adoption remains in place still run the risk of violating state incest laws, effectively trapping them in the role of parent with no standard means of release. As it stands, there are 25 states that regard “relationships between adoptive parents and their adult children within the definition of incest”. As previously mentioned, all hope would lie in the hands of the judge overlooking the annulment request.
Nino Esposito and Roland Bosee were one such couple that had their annulment application denied, only for it to be granted on appeal to Pennsylvania Superior Court. The two were together for decades before deciding to go through with the adoption in 2012, as adoption was the “most legitimate thing available” for them at the time. Same-sex marriage became legal in Pennsylvania only two years later. Hoping to enjoy this new freedom, the couple requested an annulment. Although the local court judge expressed his sympathies, he ultimately cited Pennsylvania state law that required the presence of fraud in his rejection of their request. While Esposito and Bosee were eventually able to succeed on appeal, not all couples can be so lucky.
The case-by-case basis of addressing these issues highlights the unfortunate truth that regardless of how society progresses, the law will always straggle behind rather than keep up. Indeed there are still contradictory laws in Pennsylvania that define marriage as between a man and a woman, despite the six years that have passed since same-sex marriage became legal nationwide. There needs to be state legislation put into place to free same-sex couples from the trap of legal parenthood, without having to rely on the good will of individual judges to do so. The nature of these adult adoptions is discrete and unique to the circumstances of the LGBTQ+ community pre-Obergefell.
While not necessarily formed through fraud or undue influence, these same-sex couples felt they had no other option to achieve the property and inheritance rights granted to their heterosexual counterparts. The solution here would be rather simple: allow for the dissolution of adult adoptions between same-sex couples if the main motivation behind the adoption was to achieve “pseudo marriage” status and the adoption took place pre-Obergefell. There has been little discussion of this legal anomaly among courts and legislatures alike. Given that adoption is State-regulated, this is something that state legislators must actively address as federal action from the Justice Department would have no binding effect on the courts. One possible solution is to pass state mandates binding the courts to permit LGBTQ+ couples who previously entered adoptions to annul them to receive marriage licenses. States already took similar action post-Obergefell where gay couples that entered into domestic partnerships or civil unions before the legalization of gay marriage were allowed to transition into a married status. Legalizing same-sex marriage was just touching upon the tip of the equality iceberg- the path to true equality does not and cannot end here.
About the Author: Nicole Belenitsky is a second-year student at Cornell Law School. Nicole graduated from the Macaulay Honors College at Baruch College where she studied Political Science and Communication Studies with a focus on rhetoric and public advocacy. She is an Online Associate for Cornell Law School’s Journal of Law and Public Policy’s The Issue Spotter. She currently serves as the Social Chair for If/When/How: Lawyering for Reproductive Justice as well as Social Chair for the Jewish Law Students Association.
Suggested Citation: Nicole Belenitsky, The Parent Trap: Addressing the Legal Anomaly Blocking the Annulment of Same-Sex Adult Adoptions, The Issue Spotter, (Oct. 28, 2021), http://jlpp.org/blogzine/?p=3776.