Common Family Law Issues for Same-Sex Couples

Posted on October 23, 2017 05:48pm
Common Family Law Issues for Same-Sex Couples

Marriage equality may have felt like a big leap and in many ways, it was, but we still have a long way to go before same-sex couples enjoy true legal equality in family matters. Just like any other couple, same sex-couples often wish to get married, start families, and live their lives with a healthy dose of peace and happiness. Unfortunately, certain legal issues and long-standing prejudice can stand in the way of family life for the LGBT community.

Some of the more common family law issues for same-sex couples include:

Adopting a Child

Same-sex couples hoping to adopt have fewer options than heterosexual couples. Whereas heterosexual couples can adopt through nearly any agency, many U.S. adoption agencies close their doors, so to speak, to same-sex couples. Numerous adoption agencies reserve the right to refuse children to gay couples based on their religious views and those of the biological mother giving up the child for adoption. In other words, gay couples face discrimination and are given fewer options to adopt than other couples.

Custody of Biological Children

Many same-sex couples choose to have a child by one spouse to become parents. The biological parent is automatically granted full parental rights. However, the non-biological parent might not be granted parental rights, even if his or her name is also on the birth certificate. In cases like these, the non-biological parent may have to go through a second parent adoption, also called a co-parent adoption, in order to secure parental rights. Even if your state grants non-biological parents’ rights without this adoption, not all states may honor your parental rights in the same way. If, for example, you leave the state for a vacation and your child is injured, you might not be able to gain access to your child in the hospital without having parental rights according to that state’s laws. A legal adoption, on the other hand, would be honored in any state.

Also, if the biological parent were to die, the other parent may not be able to retain parental rights if they were not legally established through biology or legal adoption. And, if another family member wishes to adopt the child, it may come down to a legal battle for custody.

Another important factor to consider is custody of your child should you and your same-sex spouse or partner ever separate or divorce. If you are not the biological parent, you might not be granted the same rights in a child custody agreement, leading to costly legal fees and, potentially, a drawn-out court battle. If you obtain a legal adoption, however, it will be easier to establish your parental rights in the event of a divorce or separation, this way you can seek joint custody.

Estate Planning

Same-sex couples may face issues with protecting one partner after the death of the other without a properly established estate plan. While legally married couples (same-sex or not) have an easier time retaining their rights as a spouse, same-sex couples (especially if not not legally married) should definitely create an estate plan. Estate planning documents, which may include wills, trusts, guardianship of minor children, and power of attorney, are necessary to protect the ones you love in case the worst should happen. It is the best way to ensure your assets are distributed in the way you wish them to be and your children are entrusted to the person you choose.

Healthcare Issues

Establishing your partner or spouse as your medical and/or financial power of attorney can be very beneficial, especially when it comes to healthcare. In a health emergency, there may be circumstances where only a spouse will be permitted, and sometimes same-sex partners face discrimination from healthcare staff and nurses when asked to establish such a connection. Whereas healthcare staff may take heterosexual couples at their word when they say they are the spouse of the ill or injured person, they may ask to see legal proof from a same-sex couple. This discrimination is unfair, certainly, but establishing power of attorney can protect both of you, legally, and can provide you with access to one another in a medical emergency.


When it comes to tax season, married same-sex couples have the option of filing federal income tax returns together or separately. However, this rule can become complicated when a couple is united via a civil union or domestic partnership. For this reason, it might be best to contact an accountant who can clearly lay out your options and help you file your taxes, at least for the first year, to avoid any mistakes or oversights.

If you need help with a family law issue, our firm is here to help. Contact McKinley Irvin at our Washington office for legal guidance regarding same-sex couples.
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