Avoiding a Parent Trap: Adoption Key to Protecting Same Sex Couples’ Parental Rights


shutterstock_125845649-thumb-400x288-65254The U.S. Supreme Court’s June 2015 ruling validated same sex marriage nationwide. But it didn’t just impact marriage, it also changed the rights for divorce and as we’ll look at here, parenting. Now, more than ever, same sex couples need to explore the impact of the ruling on their parental rights, particularly when it comes to adoption.

Joint Adoption for Same Sex Spouses Now Allowed

In Nebraska, joint adoption by two people is only allowed if the two people are married. Before the Supreme Court’s marriage ruling, same sex couples’ marriages were not legally recognized so they couldn’t jointly adopt in Nebraska.

Now that same sex marriages are valid under Nebraska law (and nationwide), married same sex couples can adopt jointly. Nebraska statutes now apply to adoption by any married couple — opposite sex and same sex couples alike. Adoptions for married same sex couples work the same way as for opposite sex spouses. There is no difference.

Stepparent Adoption May Be a Must to Protect Parental Rights

Before the Supreme Court ruling, if a same sex couple got married in another state and one partner adopted a child in Nebraska, or gave birth to a child, their partner couldn’t adopt jointly and had no parental rights under Nebraska law.

Now, however, that couple is considered legally married and all the same rights that apply to opposite sex couples apply to them. This means the non-adoptive/non-biological spouse now can – and needs to — legally adopt the child to protect his or her parental rights.

Adoption is necessary because the non-biological/non-adoptive spouse is seen as a stepparent in the eyes of the law. Stepparents do not have the same parental rights or legal protections as adoptive or biological parents.

For instance, the law doesn’t recognize the non-biological/non-adoptive spouse as anything more than a stepparent during the marriage. The only legal parent of the child is the one who adopted or gave birth. That has ramifications for medical records and consents as well as other areas of legal decision making.

And if the couple later divorces and the non-biological/non-adoptive spouse did not complete a stepparent adoption? He or she will not have parental rights after the divorce. While they may get some continued contact as a former stepparent, it isn’t guaranteed and it isn’t the same as it would have been had they completed a stepparent adoption.

Adoption Makes Parenting Permanent

Once an adoption is done, both parents are seen to be the child’s parents in the eyes of the law. That relationship – just like a biological parent/child relationship – survives divorce and death. The parent and child will have a legally protected relationship after divorce allowing for continued parenting time and financial support. The child also has the right to inherit from that parent upon the parent’s death.

Getting Help

Navigating this changed landscape of same sex adoption and parental rights created by the Supreme Court’s Constitutional recognition of same sex marriage presents some challenges. To make sure your rights — and those of your children — are protected, if you’re a same sex couple who already has children, or are thinking of becoming parents, you should meet with an experienced attorney like those at Hightower Reff. Contact us online or call us at 402-932-9550 to find out how we can help.

The Right to Divorce – Lifting the Legal Limbo for Same Sex Couples

shutterstock_34797877-thumb-400x301-65252Whether or not you are among those cheering last week’s Supreme Court decision recognizing Constitutional protection for same sex marriage, there is no denying that it has changed state of the law in the United States in a big way.

The Other Side of the Marriage Coin

While most of the attention from the ruling has been on the right to get married, there is, of course, another side to the coin that’s just as important, legally speaking. When you have the right to marry, you have the right to divorce. Last week’s decision was good news for many gay and lesbian couples in Nebraska and across the country – those looking to get married and those looking to get divorced.

Before last week’s decision, the patchwork of state laws on same sex marriage left Nebraska same sex couples who married in another state in legal limbo. They couldn’t get a divorce because Nebraska didn’t recognize their marriage in the first place. If you weren’t married in the eyes of the law, there was no marriage to dissolve with a divorce proceeding. You were stuck.

Pack your Bags and Settle in

Until last week, for Nebraska same sex couples to get a divorce, one spouse had to move to a state recognizing same sex marriage and establish residency before being allowed to file for divorce. Most states’ residency requirement is six months to one year.

For many, that sort of relocation flexibility isn’t possible, so they were stuck in a world of uncertainty regarding their rights and obligations – including the right to inherit, the right to sell property and the right to utilize income from that property.

Leaving Legal Limbo

Now, not only can same sex couples in Nebraska go to their county clerk’s office for a marriage license, they can go to the court clerk and file their divorce petition. For many this is going to be a huge relief.

The Supreme Court has held that a marriage is a marriage. That means the same laws that apply to opposite sex divorce in Nebraska now apply to same sex divorce. If a marriage is a marriage, a divorce is a divorce.

If you need help with a Nebraska divorce, the confident, clear, committed attorneys at Hightower Reff Law are here to help. Contact us online or call us at 402-932-9550.