Family Law for Same-Sex Couples
Marriage equality may have felt like a big leap forward, and in many ways, it was, but we still have a long way to go before same-sex couples can enjoy true legal equality in family matters. Just like any other couple, same-sex couples often wish to get married, start families, and live their lives with a healthy dose of peace and happiness. Unfortunately, certain legal issues and longstanding prejudice can stand in the way of family life for the LGBTQ community.
Kinney Mason proudly serves the LGBTQ community and is well-versed in many of the common family issues that impact same-sex couples, including:
Adopting a Child
Same-sex couples hoping to adopt often have fewer options than heterosexual couples. Whereas heterosexual couples can adopt through nearly any agency, many U.S. adoption agencies close their doors, so to speak, to same-sex couples. Numerous adoption agencies reserve the right to refuse children to gay couples based on their religious views and those of the biological mother giving up the child for adoption. In other words, gay couples face discrimination and are given fewer options to adopt than other couples.
Custody of Biological Children
Many same-sex couples choose to have a child by one spouse to become parents. The biological parent is automatically granted full parental rights. However, the non-biological parent might not be granted parental rights, even if his or her name is also on the birth certificate. In cases like these, the non-biological parent may have to go through a second parent adoption, also called a co-parent adoption, to secure parental rights. Even if you’re granted non-biological parents’ rights without this adoption, your parental rights may not be honored in the same way. If, for example, you leave the state for a vacation and your child is injured, you might not be able to gain access to your child in the hospital without having parental rights according to that state’s laws. A legal adoption, on the other hand, is honored in any state.
Also, if the biological parent were to die, the other parent may not be able to retain parental rights if they were not legally established through biology or legal adoption. And, if another family member wishes to adopt the child, it may come down to a legal battle for custody.
Another important factor to consider is custody of your child should you and your same-sex spouse or partner ever separate or divorce. If you are not the biological parent, you might not be granted the same rights in a child custody agreement, leading to costly legal fees and, potentially, a drawn-out court battle. If you obtain a legal adoption, however, it will be easier to establish your parental rights in the event of a divorce or separation, this way you can seek joint custody.
Estate Planning for Same-sex Couples
Same-sex couples may face issues with protecting one partner after the death of the other, as well as significant tax consequences, without a properly established estate plan. While legally married couples (same-sex or not) have an easier time retaining their rights as a spouse, same-sex couples (especially if not legally married) should create an estate plan. Estate planning documents, which may include wills, trusts, guardianship of minor children, and power of attorney, are necessary to protect the ones you love in case the worst should happen. It is the best way to ensure your assets are distributed in the way you wish them to be, and your children are entrusted to the person you choose.
Establishing your partner or spouse as your medical and/or financial power of attorney can be very beneficial, especially when it comes to healthcare. In a health emergency, there may be circumstances where only a spouse will be permitted, and sometimes same-sex partners face discrimination from healthcare staff and nurses when asked to establish such a connection. Whereas healthcare staff may take heterosexual couples at their word when they say they are the spouse of the ill or injured person, they may ask to see legal proof from a same-sex couple. This discrimination is unfair, certainly, but establishing power of attorney can protect both of you, legally, and can provide you with access to one another in a medical emergency.
If you or a loved one are a member of the LGBTQ community and need help with a family law or estate planning issue, Kinney Mason is here for you.