Supreme Court Case Could Impact LGBTQ Adoption, But Estate Planning Offers Alternate Options

Same-gender couples seeking to adopt or foster children should keep their eye on the Supreme Court’s docket for October, as an upcoming case could have a major impact on their parental rights. In February, the high court agreed to hear Fulton v. City of Philadelphia, which deals with whether taxpayer-funded, faith-based foster care and adoption agencies have a Constitutional right to refuse child placement with LGBTQ families.

In March 2018, the City of Philadelphia learned that Catholic Social Services (CSS), an agency it contracted with to provide foster care services, was refusing to license same-gender couples as foster parents. However, the agency had consented to abide by a city law prohibiting anti-LGBTQ discrimination.

The city told CSS it would not renew their contract unless they abided by its nondiscrimination requirements, but CSS refused to comply and the city cancelled its contract. CSS then sued the city, claiming it had a First Amendment right to refuse licensing same-gender couples, since those couples were in violation of their religious beliefs.

Both a federal judge and the 3rd Circuit Court of Appeals sided with the city, noting the city’s decision was based on a sincere commitment to nondiscrimination, not a targeted attack on religion. From there, CSS took the case to the Supreme Court.

Rampant discrimination at the state level

LGTBQ adoptions are particularly contentious right now at the state level as The Supreme Court has yet to rule on the issue of the parental rights of non-biological spouses in a same-gender marriage. Given this, many married same-gender couples looking to obtain full parental rights in every state turn to second-parent adoption, since the Supreme Court has previously ruled that the adoptive parental rights granted in one state must be respected in all states.

However, 11 states currently permit state-licensed adoption agencies to refuse to grant an adoption if doing so violates the agency’s religious beliefs. In other states the law specifically forbids such discrimination, but as we’ve seen in the Fulton case, those laws are being challenged.

We plan to write a follow up article once the Supreme Court rules on Fulton v. City of Philadelphia. Legal experts predict the case could have a significant impact on not just parental rights for same-gender couples, but also on nondiscrimination policies related to religious institutions at a broad level. In the meantime, same-gender couples should consider another potential option for gaining parental rights—one that doesn’t require adoption.

Estate  planning offers another option

Whether the Supreme Court rules for or against the City of Philadelphia, same-gender couples seeking parental rights have another option—estate  planning. While it may come as a surprise to you, understand that it’s critically important for you to know that when used wisely, estate  planning can provide a non-biological, same-gender parent with necessary and desired rights even without formal adoption.

With our Kids Protection Plan® couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term This also allows you to confidentially exclude anyone the biological parent thinks may challenge their wishes. In this way, if the biological parent becomes incapacitated or dies, his or her wishes are clearly stated so the court can do what the parent would’ve wanted and keep the child in the non-biological parent’s care.

Beyond that, there are several other planning tools—living trusts, power of attorney, and health care directives—we can use to grant the non-biological parent additional rights. Another option is for us to create “co-parenting agreements,” legally binding arrangements that stipulate exactly how the child will be raised, what responsibility each partner has toward the child, and what kind of rights would exist if the couple splits or gets divorced.

Secure parental rights—and your family’s future

If you’re in a same-gender marriage or even a committed partnership with someone of the same gender and you want to ensure that your significant other has as many parental rights as possible, meet with us, as your Personal Family Lawyer®, to discover the planning tools are available to you.

In fact, whether you are married or in a domestic partnership, even with no children involved, it’s critically important you understand what will happen in the event one or both of you becomes incapacitated or dies. Proper planning can ensure your beloved is left with ease and grace and not with a financial and legal nightmare that could have been avoided.

With our guidance and support, you can ensure your partner or spouse will be protected and provided for in the event of your incapacity or when you die, while preventing your plan from being challenged in court by family members who might disagree with your relationship. Contact us today to get started.

This article is a service of Levi Alexander, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

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