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

Serving Burlingame, Foster City, and San Mateo with exceptional estate planning.

By Laura Croft, Esq.

Aug 31
LGBTQ Adoption

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 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. 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 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. 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 previously 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 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 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

No matter how the Supreme Court rules, same-gender couples seeking parental rights have another option—estate planning. It may be surprising to hear, but 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.

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, while confidentially excluding 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. We can also 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 to discover the planning tools are available to you.

And 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 when one (or both) of you dies. Proper planning can ensure your beloved is left with ease and grace, not 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.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Family Wealth Planning Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

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About the Author

I have five children, two of my children have special needs and one is my step-daughter. On a deep level, I understand how every family has special gifts, dreams, fears and goals and I am deeply committed to be your trusted advisor who helps you make the very best personal, financial, and legal decisions for your family throughout your lifetime.