LGBTQ, Same-Sex, and Unmarried Couple Adoption in Delaware

LGBTQ couples adopting in Delaware have a clear legal foundation to stand on. The state does not require petitioners to be married, and the statutory definition of eligible adopters explicitly includes "cohabiting" partners — same-sex or opposite-sex. This is written into Title 13 of the Delaware Code, not just policy guidance, which means it applies uniformly across New Castle, Kent, and Sussex Counties regardless of which agency or Family Court judge you're working with.

Here's what the law says, how the process differs for same-sex couples versus unmarried partners, and what to expect at each stage.

What Delaware Law Actually Says About Eligibility

Under 13 Del. C. § 903, a petition for adoption may be filed by any Delaware resident over 21 years of age. The law allows joint petitions from:

• Married couples (including same-sex married couples since Obergefell v. Hodges)
• Cohabiting unmarried couples, defined as two adults who regularly reside together and hold themselves out publicly as a couple — same-sex or opposite-sex

The "cohabiting" definition is more specific than it sounds. Occasional cohabitation doesn't qualify. The couple must have an established, ongoing domestic arrangement recognized in their community. If you've lived together for several years and are known as partners — at work, to your family, in your neighborhood — you meet the standard. If you're recently dating and not publicly recognized as a couple, you may not.

What this means practically: Same-sex couples do not need to be married to adopt jointly in Delaware. Unmarried different-sex couples can also adopt jointly. The state doesn't require a civil union or domestic partnership registration either.

Joint Adoption vs. Second-Parent Adoption

For couples who are not married, there's an important structural question: are you filing a joint petition or will one partner adopt first and the other pursue a second-parent adoption afterward?

Joint petitions are the cleaner route when both partners are established as a couple and both will be legally recognized as parents from day one of finalization. Both names appear on the new birth certificate.

Second-parent adoption (sometimes called co-parent adoption) applies when one partner already has legal parental status — typically a biological parent in a same-sex relationship — and the other partner wants to adopt without the first parent relinquishing rights. Delaware Family Court handles these cases under the same Title 13 framework. The key distinction: the existing parent's rights are not terminated; instead, the second parent is added.

For same-sex couples where one partner is the biological parent of a child conceived through assisted reproduction, a second-parent adoption is often the mechanism that protects the non-biological parent's legal status, particularly for children born before a same-sex marriage was in place.

The Home Study for LGBTQ Families

The home study process is identical in its formal requirements regardless of the family structure. The DELACARE regulations administered by the Office of Child Care Licensing (OCCL) apply universally: individual interviews, a home inspection, financial assessment, medical clearances, and four personal references (at least three from non-relatives).

What differs in practice is agency selection. Delaware's licensed agencies vary in their organizational culture and experience with LGBTQ families. The existing agency landscape includes:

• Adoption STAR — explicitly affirming, statewide service
• Children & Families First — Wilmington and Dover, track record with diverse family structures
• Bethany Christian Services — faith-based; LGBTQ couples should verify current policy before applying
• A Better Chance For Our Children — Wilmington and Milford, particularly experienced with foster care placements

For the foster-to-adopt pathway through DFS specifically, Delaware's Division of Family Services has formal non-discrimination policies covering sexual orientation and gender identity in placement decisions. DFS-managed placements for LGBTQ prospective parents proceed under the same foster licensing framework as all other families.

The home study social worker will ask questions about your relationship, how you plan to talk to a child about their family structure, and how you'll handle questions from extended family or the community. These conversations are standard — not a heightened scrutiny of LGBTQ applicants specifically, but questions that all adopting couples face about their family narrative.

Background Checks and Disqualifying Offenses

Both partners in a joint petition must undergo the full background check battery: Delaware State Police criminal history, FBI national fingerprint check, DFS Child Protection Registry check, and out-of-state registry checks for any state either partner has lived in during the past five years.

The disqualifying offense categories are the same regardless of the petitioner's identity: lifetime prohibition for felony convictions involving physical or sexual crimes against children, a 10-year prohibition for felony assault against adults, and a 7-year prohibition for misdemeanor crimes against children.

Timing: How Long Does It Take

Timeline expectations for LGBTQ adopters in Delaware align with the general process:

• Home study: 3 to 6 months to complete, including documentation gathering and the agency visits
• Wait for a match (domestic infant): 1 to 24+ months, highly variable; some families wait considerably longer for infant placements
• Foster-to-adopt: Children in DFS custody become legally free for adoption only after parental rights are terminated, which can add unpredictable time
• Residency period: 6 months of living with the child before filing the adoption petition with Family Court (for agency placements)
• Finalization: typically 1 to 3 months from petition filing to the court hearing

The total timeline from starting the home study to finalization day commonly runs 18 months to 3 years for domestic infant adoption. Foster-to-adopt can be faster if a "legal risk" placement becomes available and the termination of parental rights proceeds without contest.

What the Finalization Hearing Looks Like

Delaware Family Court finalization hearings are generally brief and celebratory. The judge reviews the file to confirm all requirements — TPR, supervision period, background clearances, ICPC if applicable — are satisfied. Both petitioners in a joint adoption attend together.

Upon signing the final decree, the court notifies the Delaware Division of Public Health, Office of Vital Statistics. A new birth certificate is issued naming both adoptive parents. For same-sex couples, the birth certificate will list both partners as parents; Delaware updated its vital records system to accommodate non-binary and same-sex parent entries.

If you want a thorough walkthrough of the specific forms, the agency vetting framework, and what to prepare for each stage — including a comparison of the domestic infant, foster-to-adopt, and identified adoption pathways — the Delaware Adoption Process Guide covers all of it with the Delaware-specific statutory details that national adoption books routinely miss.

See more United States guides →