The reality of marriage equality; more than just joyful bells

by Rob Howard
Associate Editor

No one can argue the feeling of joy among hundreds of thousands of lesbian and gay couples, married or not, that came with the Obergefell v. Hodges decision; they could get married, and if married, that the safety and legality of their union was now secure.

News reports suggest that tens of thousands of gay and lesbian couples rushed to the courthouse after the Supreme Court’s decision, got their marriage licenses, tied the knot, and celebrated fiercely.

Celebration, joy and getting hitched are great. But marriage is a more complex matter than marriage licenses, wedding bells, and celebrations. Couples in many states have faced difficulties related to marriage, chief among them the fact that in 31 states, you can get married on Saturday, and get fired for being LGBT on Monday because there are no laws protecting against anti-LGBT discrimination.

And many states are considering ‘religious protection bills’ that could prove to be a license to discriminate against LGBT couples and singles until the courts sort it out.

But the issues being sorted out by state agencies and courts are more immediately related to the married lives of the estimated half-million same-sex married couples in the US. The issues include divorce, parental rights, child custody, adoption, both spouses being listed on the birth certificates of their newly arrived children and the ability to become foster parents.

Here is a quick review of these components of marriage, and some legal hiccups being experienced along the way.

Divorce: No couple goes into a marriage expecting divorce. But statistics suggest that in states where same-sex marriage has been legal for longer than two years, divorce rates for same-sex couples are about the same as for heterosexuals.

Obergefell seems to have nailed down the right to a divorce and that’s a good thing. A gay break-up without marriage could amount to one partner throwing the other partner out, without recourse to jointly owned property, joint household funds, even custody of children they had raised together. Family law gives married partners far more rights if they find themselves in divorce court than they had when they were just living together.

Issues in a divorce usually revolve around child custody, visitation rights, division of money and other assets, and spousal support. Divorce is emotionally draining, can be financially disastrous to both parties, and usually involves at least one lawyer. (Hint: If your marriage is failing, and you can’t resolve your differences, get divorced while you are still civil with each other.)

Custody of children: The most contentious issue in divorce is usually the custody of children and with many same-sex couples having children, it is no different. For same-sex couples, custody is frequently complicated because one of the partners is not biologically related to the child in question, and lacking an adoption process, in some states the non-biological parent is considered to have no more rights than a baby-sitter. This problem is slowing being resolved, but not without legal battles.

Adoption: Children come into a marriage in a variety of ways. One or both of the spouses may have children from a previous marriage to someone of the opposite gender; a child may have been born to one of the partners using artificial insemination (AI) or a surrogate mother; or the couple may jointly adopt a child.

Even disregarding the possibility of divorce, there are plenty of reasons to make both partners the legal parents of their children. Among the benefits are the ability to have the child covered by employer provided health insurance, ensuring the child remains with the surviving parent in the event one parent dies, being able to make medical decisions, talk with teachers and there are many more.

Method of adoption varies with the ‘source’ of the child, and can be different from state to state. To adopt a partner’s child usually requires a ‘second parent adoption;’ jointly adopting a child should put both parents’ names on a new birth certificate, although this is being fought in some states.

Getting both parents listed on the birth certificate: The laws regarding AI and surrogacy vary. In some states, authorities have refused to put both parents’ names on the birth certificate, even though if the couple were heterosexual, the father would automatically be listed as a parent as long as he had agreed to the procedure. Court fights are proceeding.

Becoming foster parents: Some people want to ‘test the waters’ before they produce or adopt offspring. The way to do this is by taking children into the family through foster care. There are several hundred thousand children in foster care across the country, and there simply aren’t enough couples available to care for them all. Many states have welcomed gay couples, married or not, into their foster care programs because they are happy to expand their parental resources.

But that isn’t so in every state. Currently, the most notorious opposition to LGBT foster parents is in Kansas. There have been allegations that the state’s Department for Children and Families (DCF) has discriminated against LGBT couples in selecting foster families. Democratic State Rep. Jim Ward called for an audit of the DCF, to include considering whether the agency had in fact discriminated. The legislative committee responsible is setting up the audit, but excluded consideration of anti-LGBT discrimination from the study. Watch The Gayly and www.gayly.com for information on this continuing dispute.

Regrettably, many of these varied aspects of marriage require legal advice. Find a family law attorney to help you through the legal maze (you can find many of them advertising in The Gayly).

The Gayly – February 17, 2016 @ 8 a.m.