With any change comes uncertainty. Changes in Washington can be unnerving for some, especially for members of the LGBTQ community. This holiday season give yourself and your family a gift of peace of mind.
All same-sex couples, even married, who have children should make sure that besides birth certificates naming non-biological one of the parents, they have court orders proclaiming parentage. California law protects non-biological parents rights to their children; however, many states do no. If you plan to travel this holiday season or if you plan to move outside of California, you still need adoption to ensure your rights.
Stepparent adoptions for same-sex couples (married or in domestic partnerships) are now streamlined in California, which means that generally there is no home study (or home visit), no background check and no court hearing. I say 'generally' because a judge may still require a non-biological parent to complete those steps if there is good cause (it does not happen very often). So, for the stepparent adoption, couples need to fill out paperwork and file it with the court. Form ADOPT-050-INFO provides a checklist. Even though the process has been simplified, it is still a good idea to contact an attorney, as it is imperative to do the paperwork correctly the first time.
In the following situations, you should NOT attempt to proceed without an attorney: 1)if there is a biological father, especially if he lives outside of California or is in the armed forces; 2) if he court orders you to have a hearing or home investigation; 3) if one of the parents or the known donor is or may be eligible to be a member or citizen of an American Indian tribal nation; or 4) if there is another parent whose rights will be terminated in the adoption who doesn’t consent to the adoption or who wants to maintain contact with the child under a Contact After Adoption Agreement.
If you do not qualify for the simplified stepparent adoption, you can still proceed with regular stepparent adoption (if for example, you got married or entered into a domestic partnership after the child was born) or a second-parent adoption (if you are not married or in a domestic partnership). Second-parent adoption is the same process that is used for independent adoptions. In both cases, it is a very good idea to retain an attorney.
Many same-sex couples, who have plans to get married in 2017 or thereafter, have fears that the new administration will reverse marriage equality. No President or Congress can reverse a right conferred by the Supreme Court. Only the court can do that. Conservatives appointed to the Supreme Court can reverse marriage equality law. However, it is not uncommon for even conservative justice to make rulings that many would call "liberal." The five justices that ruled in favor of marriage equality remain on the Supreme Court so even when Justice Scalia's vacancy is filled with a conservative justice, all is not lost. So, keep those bridal catalogs.
In United States v. Windsor, the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as only between one man and one woman. Under this vital decision, all married couples are the same under Federal law. Congress would have to pass a new DOMA to remove this very valuable protection for same-sex married couples. As valuable as this law is, many same-sex couples still have not taken the time to prepare wills or trusts. Make sure that this holiday season, you prepare all of your estate planning documents such as wills, trusts, and ancillary documents. It is imperative that along all the other gifts exchanged this season, you ensure financial safety for your family.