December 29th, 2014

Marriage Equality and the Impact on Same Sex Couple Adoptions

On May 20, 2014, U.S. District Judge John E. Jones, III struck down Pennsylvania’s Defense of Marriage Act, and thus, for the very first time, same sex couples could marry in this Commonwealth and out-of-state marriages would be recognized.

With that sweeping change comes new opportunities and challenges for same sex couples. Consider adoption. There are many reasons to adopt a child. Among them are the important benefits that flow from the relationship of parent and child. For example, inheritance rights and rights to federal benefits like social security can only be secured through adoption if a “parent” dies without a will or becomes disabled. Or a “parent” could lose all custodial rights to the child if the biological parent dies or ends the relationship or marriage while the child is still a minor. Hospital visits to see a sick child may be difficult or impossible without an adoption.

Prior to the Whitewood decision, same sex couples in Pennsylvania could adopt but the process was time consuming, obviously more expensive as a result and, frankly, unfair. Under Pennsylvania’s Adoption Act, the parent of a child to be adopted must permanently relinquish all parental rights to the child. The exception, of course, involves a situation where the adopting parent is the spouse of the so-called consenting parent.

Prior to Whitewood, Pennsylvania did not permit same sex couples to marry and, adding insult to injury, would not recognize otherwise valid marriages from other states. So same sex couples had only two options. First, the “consenting” parent could go before the Court and relinquish all rights to the child. Once that voluntary termination of parental rights was accepted by the Court, the “consenting” parent could file for a joint adoption with his or her spouse.

Stop and think about that for a minute. Imagine giving up your child, no matter for how temporary a period of time, and even if only for purely tactical purposes. The second option involved finding a sympathetic judge and persuading the Court that the best interest of the child would be served by allowing the spouse to adopt without requiring the parent to give up his or her rights.

Now, with marriage equality, same sex couples no longer need to face that kind of uncertainty or unnecessary expense. The “spousal exception” is available and those additional expensive, time consuming and somewhat humiliating obstacles are relegated to the dust bin of history. Second, parent adoption is important, even if a same sex couple chooses to marry. As noted above, adoption provides legal protection and affords critical benefits to the child and family alike. A spouse who has health insurance and life insurance can now, through adoption, insure that that child is recognized as a dependent in order to be eligible for those benefits.

Attorney Tullar, Partner Attorney and Chair of the Matrimonial and Family Law Group at Gross McGinley, LLP, regularly counsels individuals in divorce, custody and child support matters. He has also guided families through adoption, guardianship, and domestic partnership matters. In 2002, Allen was appointed as a Master to the Lehigh County Family Court where he implemented the new Lehigh County three-tier domestic relations system. He served with the county for three years, during which time he held de novo support hearings and custody conferences and acted as a Master in Divorce.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.