Same Sex Couple Adoption Rules

DaveAG · November 2006

My state does not recognize same sex marriages, however, a same sex couple (both are employees) has adopted a child. Only one parent will be listed as the legal guardian on the birth certificate. The other will be listed as a "joint caregiver". Is the "joint caregiver" entitled to FMLA leave?

Peyton Irby MS · November 2006

A "joint caregiver" or any simlar definition is not listed in the statute or the regulations as one of those entitled to FMLA leave for an adoption or to care for a parent, child, etc.
Unless your state has a more specific family/medical leave provision, this individual does not qualify.

Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Myrna Minkoff · November 2006

I totally disagree with your response. Under 29 CFR 825.113, a "son or daughter" is defined as either a biological, adopted, or foster child ... or a child of a person standing in loco parentis. Moreover, the regs specifically state that a legal relationship is not necessary to establish an in loco parentis relationship, but rather factors such as day to day responsibilities to care for and financially support the child are determinative. I think it's hard to argue that a person listed in the adoption papers as a "joint caregiver" is not standing in loco parentis.

davids · December 2006

I'll start out with the caveat that I am not an attorney; but when I have dealt with employees who were acting as "loco parentis" in the past, it was always a situation where the real parent was absent and the employee was acting in place of the parent. I am not sure how the concept of loco parentis applies when the real parent is present and the person acting as loco parentis is in addition to the real parent. I think you would want to consult with an attorney before taking action based on this legal concept.

NaeNae55 · November 2006

That does not stop you as an employer to decide to go ahead and allow leave to this employee. FMLA is a legal minimum. Of course, you want to beware of setting a precedent, but I think you can limit your liability. You can consider that it is legal in some parts of the country, and that could be the line that you draw.

Good luck!

Nae

Peyton Irby MS · December 2006

If your state provides that a person living in the home with an adoptive parent (not married to the parent or having a guardianship order) would qualify as standing "in loco parentis" with the child, the FMLA will apply. If not, the regulations do not provide for inclusion. Congress and the DOL was not trying to avoid this particular issue but the quandary an employer would find with claims of persons not showing a "permanence" in the relationship to the parent.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Same Sex Couple Adoption Rules

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