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.

Mediation Mindset – Five Keys to a Parenting Plan You Can Live With

Nebraska family law statutes require a parenting plan to be developed and approved by the court in all child custody cases. If that doesn’t happen, the judge will create the parenting plan. 

We’ve generally found that a parenting plan parties develop themselves through mediation in a divorce or child custody case is more likely to be followed by both parties than one the judge creates. Mediated parenting plans also tend to end up having fewer problems after the court case is over than a judge-made parenting plan.

But, like anything, the success or failure of mediation depends a lot on how you approach it. Here are five things you can do to increase your chances of coming out of parenting plan mediation with an agreement that’s best for your child – and that you can live with: 

1.  Drop the baggage. Any negative feelings you may have about your soon to be ex-spouse or former significant other have no place in mediation. The parenting plan mediation isn’t about you. It isn’t about your ex or your relationship with them. It IS about your children. Put yourself in their shoes. 

Based on our experience, most Omaha area child psychologists, if called to testify at trial, will say that, in most cases, it’s in a child’s best interest to have a full and significant relationship with both mother and father. It’s your job, as a good parent, to help your children achieve that – regardless of your feelings about the other parent.

2.  Focus on what matters – your children. The parenting plan’s goal is to lay a framework for a parenting time structure that will be best for each of your children’s individual needs. This means that you may need to let go of your idea that you must have Christmas day every year, instead of Christmas Eve, or that you must have pick up or drop off at a certain time to accommodate your activities if it means creating a problem with your child’s schedule. 

Some of your children’s needs may be inconvenient for you, but may create an opportunity for you to give a little in the mediation process to show that you’re making a good faith effort – and to encourage the other parent to do the same – in the best interest of your children. 

3.  Be okay with not getting everything YOU want. Mediation is really a negotiation moderated by a trained and certified parenting plan mediator. In negotiation, the best result is usually one that leaves each party both a little dissatisfied and a little satisfied. Be prepared to accept something less than everything you want. The big win, however, comes with walking out of mediation with a parenting plan agreement that will be best for your children, and will be more likely to be followed by both parties. 

4.  Come prepared. It’s important that you’re able to let the mediator know what your concerns are on behalf of your children, and what you see to be your children’s interests. Make a list and bring it to the mediation, along with some ideas about how the parenting plan might address those interests and concerns. 

5.  Be open and listen. Even if you think the other parent is as useful as a screen door on a submarine, listen to what they have to say at mediation. They may have a different perspective than you regarding your children. While you may not agree with much they say, they may have some thoughts and ideas that will help develop a parenting plan that will help your children grow up being loved, cared for and having a strong relationship with both parents.

The bottom line in all of this is the goal:  developing a parenting plan that will help your children grow into loving, respectful and well balanced adults – which is one thing that both you and the other parent can agree upon. 

At Hightower Reff Law, our family law attorneys have helped countless clients through the process of mediating parenting plans. If you need an attorney or a certified family law mediator (which I am) for your child custody case, we can help. Contact us online, or call us at 402-932-9550. 

NOTE: In some cases – like child custody cases involving domestic violence, substance abuse, or mental health issues – mediation may not be appropriate. Or, a special kind of mediation may be warranted. 

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

The Cost of Trial in Family Law – It’s More Than Just Money

“What’s it like to be in trial?” This is a question we often get from our family law clients.  A trial isn’t easy. In a divorce, child custody modification, or other family law trial, the most important things in your life – your children and your financial security – are at stake. 

Having your voice heard

In a family law divorce or custody trial, the outcome is completely out of your hands, and ours. It’s in the hands of the judge. A settlement agreement, on the other hand, gives you a say in the outcome of your case. It is a chance for your voice to truly be heard – and for your wishes to be incorporated in the final court order that comes from the settlement agreement. 

Sometimes a trial is necessary – but, if the lawyer does her job well, those times can be relatively few in family law cases.  Most often, a settlement is the best way for our clients to have a choice and a voice in deciding what’s best for their children and family.  

That’s one of the reasons why, in most cases, the attorneys of Hightower Reff Law would rather reach a settlement than go to trial with your divorce or child custody case.

Making good settlement decisions

While reasonable attorneys may differ regarding interpretation of the law, an experienced family law attorney has a pretty good idea of what your chances of success are at trial and what expectations are reasonable. 

At Hightower Reff Law, we counsel our clients about those things and give you the advice you need to make reasonable settlement decisions that give you a say in the outcome of your case, and that are in the best interest of your children. We do this because it is part of advocating for you. Being in trial is hard on families. It is hard on our clients. It is all consuming.  

The casualties of trial

In a divorce or child custody modification trial, it’s our job to convince a judge or jury that our side should prevail, but there is never a guarantee. It is the other side’s job to point out how wrong we are about our client and our position.  The other side often will bring up every little negative thing that our client has ever done and make it seem like the worst thing ever – and we will have to do the same to your soon to be ex-spouse or parent of your children. 

A trial is never predictable, and is not for the faint of heart.  It can be a blood bath that causes even more hard feelings than the parties already harbor for one another. It can also make for problems in co-parenting children after the divorce or custody modification trial is over. 

In the end, the true casualties of the battle of trial are often the children because they can suffer when their parents harbor animosities for one another. 

Your peace of mind

Although a trial is sometimes necessary in family law cases, through our years of experience as family law attorneys, we at Hightower Reff Law have found our clients are most satisfied with an agreed upon outcome they help craft in mediation or settlement negotiations. 

After all is said and done, when you reach a settlement agreement in your divorce, child custody, or other family law case, you can walk away with the peace of mind that comes with knowing that you stood up for you rights and the best interest of your children – without the lingering scars a trial can cause.

To learn more about Hightower Reff Law, visit our “about” page, or call us today at 402-932-9550.