Gays and lesbians have recently turned to the courts and the law for recognition of their families. Some of the most successful cases are those won by a gay or lesbian "second-parent" of a child whose biological or legally adoptive parent is his or her partner. The court opinions granting these second-parent adoptions have often portrayed these petitioners as similar to an idealized heterosexual family unit, albeit with two same-sex parents. In this study, 20 parents who successfully pursued a second-parent adoption were interviewed to examine their experiences with the legal system. Results indicate that these petitioners did not envision themselves as similar to heterosexual families and resisted attempts by state actors who tried to formulate them as such. The literature on legal consciousness and pragmatism is used to analyze the respondents' experiences.
Gays and lesbians fall in love, have sexual relations, and care for each other and their children without the sanctity of the state. Only recently, in very limited situations and jurisdictions, have gays and lesbians successfully challenged legal restrictions on formal marriage, domestic partnerships, civil unions, adoption, and foster parenting. Some of the most successful petitions have been brought by "second-parents," a term coined by Delaney (1991) to denote the lesbian (or gay) partners of legal parents who wish to have their relationships with their partner's child recognized by the state. Legal parental status is necessary for a second-parent to make legal decisions regarding the child and for the parenting couple to organize family life with choices similar to heterosexual parents and stepparents. Federal policies such as income tax exemptions, intestate succession, and eligibility for entitlement programs require a legally defined family. Most private insurance carriers require a state-sanctioned family for extension of health or life insurance benefits. Doctors-as well as schools, day care centers, prisons, and other institutions-- often require that parents, and only parents, make arrangements for the care of their children (Connolly 1998, 2002).
Late in 1991, a New York court was the first to publish an opinion allowing a second-parent adoption. In that case, In the Matter of a Child Whose First Name Is Evan (In re Evan), Judge Preminger carefully evaluated New York adoption law, the social science evidence on gay parents, and the documentation provided by the petitioning lesbian couple. Ultimately, she concluded that nothing prevented the adoption. Immediately after the ruling in the Evan case, numerous couples began similar proceedings in courts around the country.1 My then-partner and I were one of them, and in mid-1992, the chief family court judge in Buffalo, New York, smiled and turned to my 5-year-old son and exclaimed that he was such a lucky boy to be part of a family now. To us, however, Lucas had been part of a family since birth. The adoption was the culmination of our attempts to guarantee both of his mothers the ability to parent legally. I had fought (and lost) the "family" issue with both our attorney and the certified social worker and was not willing to jeopardize the judge's signature on the final forms by repeating "the law did not make us a family." What I had said earlier to the attorney and a social worker was that, until the adoption, the law had denied us the same rights to parent as heterosexuals have had-to enjoy the same duties and obligations to our child as were realized by heterosexual parents. Lucas had enjoyed life with two mothers, only one of whom had the legal ability to make binding decisions. The adoption would expand that number to two; but it did not make us a family. Though I celebrated the event as a victory both for us personally and for other gay and lesbian parents who wished to have their relationships with their children legally recognized, the legal process ignored our reality as both lesbians and parents. …