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

A case on the Supreme Court’s docket for October could have a major impact on the parental rights of same-gender couples seeking to adopt or foster children. 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 First Amendment 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. This was in spite of the fact the agency 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 policy, but CSS refused, and the city cancelled its contract. CSS

then sued the city, claiming it had a Constitutional right to refuse licensing same-gender couples, since those partnerships violated 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. 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, as the Supreme Court has ruled that the adoptive parental rights granted in one state must be respected in all states.

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

We’ll 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 nondiscrimination protections at a broader level.

Estate planning offers another option

Yet no matter how the Supreme Court rules, same-gender couples seeking parental rights have another option—estate planning. When used wisely, estate planning can provide a non-biological, same-gender parent with necessary and desired rights, even without formal adoption.

Starting 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. In this way, if the biological parent becomes incapacitated or dies, 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 we can use to grant the non-biological parent additional rights, including “co-parenting agreements,” legally binding contracts stipulating how the child will be raised, what responsibility each partner has toward the child, and what rights would exist if the couple gets divorced.

If you’re in a same-gender relationship, and want to ensure your significant other has as many parental rights as possible without resorting to adoption, contact us as your Personal Family Lawyer®.


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