Gay adoption policies vary by county in New Hampshire

Although the New Hampshire legislature repealed a ban on adoptions by gays in 1999, gays and lesbians in some counties cannot adopt a partner's children because of varying interpretations of the law by probate judges. Single men and women, gay or straight, are allowed to adopt children in all counties under state law.

Probate court judges in Hillsborough, Merrimack, Grafton, and Cheshire counties do not allow gay or lesbian couples to adopt children together or allow one to adopt the child of the other, because the law specifies that married couples and single adults can adopt. Gays and lesbians are not allowed to marry in New Hampshire.

In the state's other six counties, judges have interpreted adoption law and court rulings more broadly to allow adoptions by gay and lesbian partners as long as they can show they have a stable and loving home. "I think all judges in good faith are trying to interpret the statute correctly," said probate judge Richard Hampe, who sits in Merrimack County. "It's just that the statute is not all that clear. It really should be resolved."

According to the Concord Monitor, there are no bills pending to clarify the law. In fact, several lawmakers who oversee adoption laws told the newspaper they had no idea gay couples were being treated differently depending on where they live. Nor has anyone appealed to the state supreme court.

Betsy Peabody of Concord said she and her partner of 13 years, Dianne Harhigh, considered an appeal, but were afraid the high court would uphold Hampe's ruling that Peabody, the birth mother, would have to give up her parental rights before Harhigh could adopt. The couple's daughter is almost 5 years old.

"For a long time when the law [banning adoption by gays] was overturned, there was a lot of talk about how awesome that was," Peabody said. "That was going to be the door in for our kids having two legal parents. But [it] doesn't apply to two-parent adoptions."

Judges on both sides of the question point to a 1987 state supreme court ruling by former state justice David Souter, who ruled that a divorced couple living in separate homes could not adopt a child together because the adoption law is intended to give children one home "that is unified and stable." "Respect for such intent precludes our reading [the law] so as to authorize a joint adoption application from two unmarried adults," Souter wrote.

Judge John Maher, head of the state's probate courts, said he will allow unmarried couples to adopt a child jointly or allow one partner to adopt the child of the other partner as long as an independent home study concludes the child will be in a safe, stable, and loving environment. "Whether they are homosexual or heterosexual is irrelevant to me," Maher said.

Lawyer Susan Hassan, who represented Peabody and Harhigh, said that when her clients live in counties that do not allow gay couples to have equal parental rights, she advises them to pursue joint guardianship. Guardianship gives both partners equal parental rights in case of a split and it is recognized in all 10 counties.

But adoptions give children additional rights to share disability, health, and inheritance benefits with both parents. Lawyer Ann McLane Kuster said adoptions also provide children with more stability. "Guardianships come and go," she said. "The court can change guardianship but not adoption."

Harhigh, who quit her job to raise the couple's daughter, said the family finds guardianship offensive. The couple must file a report with the Merrimack County probate court each year showing they are giving their daughter a good home.

"I can raise my daughter, but I can't adopt her," Harhigh said. "I could adopt a stranger but not my daughter." (AP)