Issues Facing LGBTQ Families Today

 Posted on July 11, 2017 in Family Law

With the recent change in administration, many LGBTQ parents and family members have expressed concern over the possibility of modifications to current statutes and legal precedents that may affect them and their families adversely. Though many believe such fears unfounded, it is never a bad idea to double-check that all relevant legal documents, including adoption or birth certificates, marriage licenses, and travel documents are in order.

Marriages and Estate Planning

Perhaps the primary concern of many LGBTQ families is the issue of marriage equality. While a Supreme Court decision usually settles a matter, at least for some time, the new administration has given indications that it would like to see 2015’s landmark decision in Obergefell v. Hodges overturned. While a president cannot unilaterally overturn a Supreme Court decision, he may, in theory, appoint justices who can, and this causes real concern for many. President Trump’s appointment of Justice of Neil Gorsuch seemed to validate this concern among pundits and skeptics.

If you are married, your union is safe. It is not possible for any elected official to invalidate your marriage, as in Obergefell, Justice Kennedy declared marriage a fundamental right. If you are not yet married, you may wish to marry now, in order to ensure that your estate planning for the future does not meet any roadblocks. Estate planning as an unmarried couple, whether same-sex or opposite-sex, is markedly more important than it is for a married couple. In Illinois, it is possible to set up an estate plan that appropriately provides for your partner, but no protection is granted to them automatically. With married couples, if one suddenly dies, the other will receive at least half of their estate. This is not the case for those without a valid marriage.

Adoptions

A ruling in March 2016 by a federal judge in Mississippi’s Southern District effectively legalized adoption by same-sex couples in all 50 states, striking down Mississippi’s ban, which had been the last standing. While states control issues such as adoption rights, it is still possible to challenge parental rights in federal court, and without the protections currently afforded to same-sex couples, it may succeed in certain cases.

While it is not strictly necessary, most experts recommend what Illinois and many other states call a second parent adoption. Second parent adoption is when a child who already has one custodial parent is adopted by a second without terminating parental rights. The practice was extremely common in states where same-sex adoption was not legal. While it is not optimal, at least with second parent adoption, both spouses will have legal custody of their children that cannot generally be contested without proof of unfitness.

Seek Knowledgeable Assistance

So many issues are unsettled at this point in time, and it is very understandable to be concerned about your well-being and the safety of your family. If you have questions, the best thing to do is consult an experienced Lombard family law attorney. Call 630-426-0196 for a confidential consultation at A. Traub & Associates today.

Sources:

http://www.huffingtonpost.com/entry/mississippi-same-sex-adoption_us_56fdb1a3e4b083f5c607567f

http://www.cnn.com/2016/11/09/politics/supreme-court-vacancy-donald-trump/