Tag Archive for: same-sex marriage

No More “Same-Sex Marriage” Marriage Is Marriage, Period

BY RICHARD A. ROANE

The legal and practical implications of same-sex relationships.

On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges, 135 S. Ct. 2584; (2015), that the U.S. Constitution requires all states to recognize a marriage between two people of the same sex, and further, that all states must issue marriage licenses for same-sex couples who apply for such licenses. Associate Justice Anthony Kennedy wrote the opinion for the majority in a five-to-four ruling, finding that same-sex couples have a fundamental right to marry as guaranteed by both the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution. For same-sex couples who were married in a jurisdiction that recognized and allowed same-sex marriage and who were living in either a recognition state or one of the 13 prohibition states, their marriages are now recognized under state law. In addition to recognizing these marriages, all states now must issue marriage licenses to same-sex couples who apply to marry. This new recognition means: • These marriages will be recognized throughout the United States, in all states, territories, possessions, and Washington, D.C., plus the 20 (at time of writing) other countries recognizing same-sex marriage. Recognition by certain Native American tribes is restricted. (See “Native American Tribes: More Exceptions on page 14.) • Children born during these marriages should have two legally recognized parents based on the “parental presumption,” regardless of gender or biological connection. • Family law courts should be available to same-sex married couples for resolving issues in dissolution (divorce), custody, child support, spousal support, and property division cases—literally all issues available to heterosexual couples.

 

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Adoptions for Same Sex Couples

Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from the simpler process of a kinship or step-parent adoption. This means no home study is required. The adopting parent would still complete the requisite background checks. At the adoption hearing the court will verify that all requirements for an adoption have been met. The adopting parent(s) should be prepared to indicate their understanding of the responsibility they are taking on as parents.

For couples conceiving using assisted reproductive technology, it may be possible to have your name included in your child’s birth certificate prior to finalization of the adoption hearing. Specifically, for female same-sex couples where one partner is the birth mother, the other partner’s name can be included in on the birth certificate so long as they are married. However, having your name on the birth certificate is not necessarily enough to protect your rights as a parent so you are advised to still consult with an attorney regarding adoption as soon as possible.

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Married Same-Sex Adoption

Today marked the completion of my first same-sex step-parent adoption. Prior to May 2014, a same sex couple had to follow the steps for second-parent adoption which required a home study as opposed to a step-parent adoption which did not. However, in a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from the simpler process of a kinship or step-parent adoption.

The adoption hearings are the final confirmation that all requirements for an adoption have been met. The adopting parents should indicate during the hearing their understanding of the responsibility they are taking on as parents. A sample colloquy is included below. Hopefully, many newlywed same-sex couples in Pennsylvania will be able to take advantage of this easier path to adoption.

Do you understand if this Court permits the adoption, both you and this child will have all of the legal rights and duties between a parent and child that the law provides for natural born children? Do you understand, for example, these rights and duties include: (A) the right of the child to inherit through you and your family (B) your legal obligation to financially support this child (C) the right of the child to seek support from you (D) do you understand these rights and duties would continue if you and your spouse separate or divorce (E) do you understand these rights and duties would continue if the child develops any physical, psychological problems or becomes ill or disabled for any reason in the future

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Same-Sex Marriage & Divorce

Last month the U.S. Supreme Court found that the Defense of Marriage Act (DOMA) was unconstitutional as it violates the Fifth amendment in failing to provide due process for all. DOMA was initially enacted in 1996 and provided that the federal government could refuse to recognize same-sex marriages granted under state laws. This resulted in same-sex couples being denied federal marriage benefits available to heterosexual couples including, but not limited to, insurance benefits for government employees, social security survivors’ benefits, evaluating financial aid eligibility and filing joint tax returns.

While the federal government will no longer discriminate against same-sex couples who have been married in a state recognizing same-sex marriage, there may still be unique issues as it relates to divorce. For one, only states granting same-sex marriages will be able to do the divorces. With divorce there is often a residency requirement of six months or more meaning one of the parties may need to relocate and establish residency in a state that can preside over the divorce action before it can proceed. Further, if same-sex couples have children and subsequently separate, there are issues they can run into as far as custody. For example, PA custody laws state exactly which persons are eligible to even apply for custody rights and limit that group to the parents, grandparents, or third persons standing in loco parentis. Accordingly, if the non-biological parent hasn’t already adopted any children thereby making them a parent, they could run into issues establishing standing for custody. To date, PA does not recognize same-sex marriages. The ACLU did file a lawsuit to allow same-sex marriage in PA following the decision on DOMA.

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