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OCFS Issues Guidance on Adoption Study Criteria Related to Sexual Orientation and Length of Marriage

August 18, 2011

Author: Amy Schwartz-Wallace

The Office of Children and Family Services (OCFS) recently issued an informational letter (INF) clarifying, among other things, that discrimination against prospective adoptive parents based on sexual orientation is strictly prohibited and not a legitimate basis for denying an application.  11-OCFS-INF-05 was issued on July 11, 2011 and is available online at:

The guidance was published because advocacy groups, including the New York Civil Liberties Union, found the existing regulation 18 NYCRR §421.16 (h)(2) confusing as it stated that sexual orientation cannot be the “sole” reason for denying an application for adoption. There was serious concern that some consideration of an applicant-parent’s sexual orientation would, therefore, be permissible.  While the regulation itself has not yet been amended, until such time, the INF makes it clear that the regulation’s intent is to prohibit discrimination based on sexual orientation in the adoption study assessment process.

The INF also addresses the state regulation regarding marital status and the length of marriages detailed in 18 NYCRR §421.16 (e).  The guidance makes it clear that applicants need not be married in order to adopt and those who are married should not be disadvantaged in the process based upon the length of their marriage. Agencies can and should continue to examine the commitment and stability of the applicants’ relationship and their ability to plan for and commit to the adoptive child, without regard to the length of their marriage or lack thereof.  It is now clear that no applicant can be denied solely on the basis that they have been married less than a year.   

While this policy guidance was not specifically precipitated by the enactment of marriage equality in New York, the timing of its release is indeed a “happy accident” of sorts for same-sex parent headed households looking to adopt.  Although these families have generally been viewed in New York as appropriate, capable, and potential resources for children in need of homes, without a doubt, this guidance institutionalizes this approach and attitude statewide.  Further, potential same-sex adoptive parents who take advantage of their freedom to marry in New York beginning on July 24, 2011 will not be, in any way, disadvantaged by either their relationship itself or the length of their newly-created legal marital status.


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