Same Sex Marriage Presents Assorted New Legal Issues
January 5, 2016
The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided. Just recently, the Supreme Court issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.
V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states. Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.
In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption.
When heterosexual couples have children, there are a number of legal protections for the biological parents that easily are established under Pennsylvania family laws. However, in many unmarried same-sex couple situations, one partner is the biological parent of the minor child who is conceived through surrogacy, sperm donation, or other assisted reproduction and the other partner has no biological relationship and therefore no automatic legal relationship to the child. In the same-sex couple situation, an adoption case must be initiated to become the legal parent of a minor child and ensure full legal protection for both the child and the non-biological parent.
These protections include allowing the child to be covered as a dependent of the non-biological parent for health insurance and life insurance benefits and provide the child with inheritance rights if the non-biological parent dies without a will and assures access to federal benefits, such as Social Security benefits, if the non-biological parent dies or becomes disabled while the child is a minor.
Without a second-parent adoption, the non-biological parent may lose contact with the child if the relationship with the biological parent ends or if the biological parent dies while the child is a minor. Second-parent adoptions give the non-biological parent legal rights as a parent in custody, visitation and child support issues should they arise.
If you have questions about your rights in a any Family Law issues, contact our office to discuss your concerns.