When Nikki Dennis’ wife, Jessica Dennis, gave birth to a healthy baby boy last May, she was right next to her in the Ouachita Parish delivery room, holding her hand.
“I was there the moment he took his first breath,” Nikki said. “I will be at every ball game, graduation and important moment in his life because I’m his mother too.”
But in the eyes of Louisiana law, she technically isn’t.
Louisiana’s civil code establishes parental rights over any child born in the state to the birth mother and “the husband of the mother,” or, if the woman is unmarried, the biological father can petition a court for rights. Nikki is female, so neither title fits.
The couple used a sperm donor to conceive their son through intrauterine insemination. Jessica, who provided the egg, carried him to term.
So, at the advice of a family lawyer, the couple applied for adoption, a common step for same-sex and heterosexual couples who rely on sperm or egg donors. The complex legal process solidifies rights for a non-biological parent in case a marriage ends or the biological parent dies.
Normally, judges approve an adoption if couples complete all required paperwork, said Sophie Barksdale, the family lawyer representing Jessica and Nikki. But that didn’t happen for the Dennis family.
Last December, Sharon Marchman, a judge in the Fourth Judicial District Court in Ouachita Parish, dismissed their request. Nikki is already “presumed to be the parent of this child,” Marchman said in her ruling.
She argued that Nikki already has parental rights under civil code article 185, which grants parentage to the husband of a birth mother. “Therefore, she cannot adopt her own child,” Marchman wrote.
The Dennis’, and their lawyer, disagree. They’ve filed an appeal with Louisiana’s Second Circuit Court, requesting a review of their case and reversal of their adoption denial. The decision, expected as soon as May 20, could help clarify a murky area of state law that has derailed adoptions for the Dennis family and at least three other lesbian couples in northeast Louisiana in the last year.
Nikki and Jessica argue that without an adoption, Nikki — and other female spouses of female birth mothers — are at best viewed by the law as a stepparent, lacking the full legal rights that tether a child to their biological parent. And in the event of a future custody battle or court hearing, a different Louisiana judge could use the gendered language, specifically the word “husband,” in the state’s civil code against Nikki. Their baby’s sperm donor could also theoretically petition the court for custody of their child.
La. parental rights laws outdated
The case highlights legal vulnerabilities that stem from an outdated state law that assumes all children are born to heterosexual couples. Since the U.S. Supreme Court legalized same-sex marriage nationwide in 2015, thousands of same-sex couples in Louisiana have tied the knot. Many have also successfully started families.
Parental rights laws, which states use to govern who is responsible for the custody and wellbeing of children, have been slow to catch up with that reality, forcing same-sex parents to jump through additional, pricey legal proceedings to access full parental rights, said Luce Remy, vice president of public policy for Family Equality, a national LGBTQ+ family rights organization.
“If we don't have these laws updated to allow people who are already providing emotional and physical caregiving to the child to have a legal relationship, it endangers the child,” Remy said.
Without an adoption, non-biological parents can run into issues completing simple tasks for their children, such as picking them up from school or taking them to the doctor or including them in their health insurance policy, Remy said. In past divorce proceedings, non-biological parents who haven’t gone through the adoption process have been denied custody requests.
Some state legislatures, including California and Vermont, have taken steps over the past decade to rewrite their parental rights laws to acknowledge same-sex relationships or remove gendered language without undermining the rights of heterosexual couples. Louisiana has not.
The state legislature has advanced a number of bills in recent years that LGBTQ advocates say strip away the rights of residents in healthcare and education. The Human Rights Campaign lists the state near the bottom of its list of most LGBTQ-friendly states.
This year, Louisiana Rep. Wilford Carter, D-Lake Charles, introduced a bill that would exclude same-sex couples from civil code 185, streamlining the adoption process. But the proposal died in committee.
The Dennis’ case in Ouachita Parish appears to be an anomaly. Many same-sex couples successfully apply for adoption in Louisiana each year, said Nicholas Hite, a senior attorney with Lambda Legal in New Orleans who specializes in LGBTQ family law.
Hite said he’d never seen a judge deny an adoption because they already saw the petitioner as a parent, which is what happened to Jessica and Nikki Dennis.
“Anytime our elected officials remove legal protections for LGBTQ+ parents and children in Louisiana, they are creating the potential for far-reaching legal harm,” Hite said.
In Ouachita Parish, in northeast Louisiana, other lesbian couples with newborn children are watching the outcome of the Dennis’ case closely. At least two other sets of parents have reached out to Sophie Barksdale, the family lawyer representing Jessica and Nikki in their appeal.
“I've kind of told everyone to hold on, because we don’t have consistency,” Barksdale said.
‘When am I mom enough?’
The wait for non-biological parents can be agonizing.
Megan Hawthorne Proffer and her wife, Amanda, welcomed their son, Oliver, in Oct. 2023. They planned to move forward with an adoption as soon as they could to make sure Megan, the non-biological mother, has full parental rights. But now they’re waiting for the Dennis’ case to be resolved before moving forward.
In the meantime, Megan has been posting TikTok videos to try to raise awareness about her adoption delay.
In one video, Oliver lies on a couch in a rainbow onesie, shaking a rattle.
The caption reads, “according to the state of Louisiana, this is not my child.”
In her daily life, Megan, the head of a local LGBTQ rights organization, said she regularly hits logistical hurdles when caring for her son in public. When she brought Oliver to a doctor’s appointment, the clinic referred to Amanda, his birth-mom, as his “parent” on paperwork. Megan was listed as a “care provider.”
The different language felt like a kick in the gut, she said. It feeds insecurities about whether she is really a mom because she didn’t carry Oliver and he doesn’t have her genetics.
“I'm already dealing with those feelings and now I even have to prove to the government that I'm really a mom,” she said. “When am I mom enough?”
Adoptions are also necessary to terminate the parental rights of a sperm or egg donor. Without that, a donor could theoretically petition a Louisiana judge for custody rights of a child, said Barksdale, the lawyer for the Dennis’.
“There's always that possibility,” Barksdale said. “But with an adoption, it gives you the opportunity to terminate his parental rights and really for Nikki to step into his shoes essentially as a parent under the eyes of the law.”
When Jessica and Nikki were searching for a sperm donor, they enlisted the help of a friend. Following the donation, the friend signed an agreement to terminate his parental rights, which the couple included in their adoption petition.
Both moms say they expected the adoption process to be complex, but never imagined they would spend thousands of dollars and nearly a year fighting for their case.
Neither Nikki nor Jessica feel that the judge assigned to their case ruled based on anti-LGBTQ+ bias. The same judge, Sharon Marchman, has granted adoptions to same-sex couples who aren’t married in the past, Barksdale said. (Marchman did not respond to a request for comment.)
“She’s a very intelligent judge,” said Jessica Dennis. “So it baffles me to think that she would truly believe that my wife would have rights according to that civil code, knowing that it specifically states ‘husband and father.’”
They hope their appeal raises awareness about how the state’s civil code needs an update to give families with same-sex parents equal rights.
“We will not stop until the law, the state and whoever we have to go through also recognizes that she is his mother too,” Jessica said.