Dating back to 1995, an Administrative Memorandum (#1-95) of the Nebraska Division of Children and Family Services (DCFS), a division of the Nebraska Department of Health and Human Services (HHS), has banned foster home licensing of homes of “persons who identify themselves as homosexual” or persons who are “unrelated, unmarried adults residing together.” This policy ultimately prohibits gay and lesbian individuals from serving as foster and adoptive parents to children in state custody.

There are only three other states which categorically restrict adoption or fostering by gay and lesbian individuals and/or implement a preference for placements with married couples – Arizona, Mississippi and Utah. Like Nebraska, there are an additional seven states which explicitly bar same-sex couples and/or unmarried couples from getting joint and/or second parent adoptions statewide – Kentucky, Louisiana, Mississippi, North Carolina, Ohio, Utah and Wisconsin. A “second parent” adoption is where one partner is already a legal parent by virtue of birth or adoption, and the other non-biological parent seeks to adopt.

For the past ten years, many states have clearly established law allowing second parent adoption regardless of marital/civil union/domestic partnership status – California, Colorado, Connecticut, District of Columbia, Illinois, Indiana, Maine, Massachusetts, Montana, New Jersey, New York, Pennsylvania and Vermont. Other states have established law permitting joint and/or second parent adoption only for couples who are married or have a civil union or domestic partnership – Delaware, Hawaii, Iowa, Nevada, New Hampshire, Oregon, Rhode Island and Washington.

The pending question is whether Nebraska will be next to join the states allowing same-sex couples to participate in the full spectrum of fostering and adopting; or whether Nebraska will stand firm with the minority of states who continue to bar LGB people from fostering and adopting children in state custody and prohibit same-sex couples from getting a second parent adoption.

In August of 2013, the American Civil Liberties Union (ACLU) filed a complaint in the District Court of Lancaster County, Nebraska on behalf of three same-sex couples against the Governor of Nebraska, the Chief Executive Officer of the Nebraska Department of Health and Human Services and the Director of the Nebraska Division of Children and Family Services. The defendants filed a motion to dismiss, upon which a hearing was held in December of 2013. The court issued its Order in April of 2014, overruling and denying the defendants’ motion to dismiss. Consequently, the matter is still pending before the court.

At this juncture, while same-sex couples living in Nebraska are barred from becoming foster parents and from getting public adoptions and second parent adoptions, there are still options for private adoptions to unmarried adult individuals and certain estate planning measures which can protect the parent-child relationship for second parents.

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