Confirmatory Second-Parent Adoptions
The November 2024 election left many LGBTQ+ families wondering what challenges might be coming their way, even in blue states, and they are understandably concerned. The shift toward conservative leadership in all branches of the federal government, and the specter of Project 2025 puts the rights of same-sex couples under scrutiny. If you find yourself in this situation, now is the time to take steps to protect your family.
The right to same-sex marriage was established by Obergefell v. Hodges 576 U.S. 644 (2015). In that case, the U.S. Supreme Court ruled that state bans on same-sex marriage, and state bans on recognizing same-sex marriages performed in other states, are unconstitutional. In 2022, the Supreme Court overturned Roe v. Wade, and Justice Clarence Thomas wrote in his concurring opinion, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” If given the opportunity, the Court’s conservative majority is likely to overturn Obergefell.
The Respect for Marriage Act (RFMA) was passed by congress in 2022 and will serve as a partial backstop in the event Obergefell is overturned. The RFMA says all states must recognize same-sex marriages performed in states that allow them, and that same-sex couples are eligible for the same federal benefits as opposite-sex couples. It also prevents the Supreme Court from retroactively invalidating existing same-sex marriages even if the Obergefell is overturned. However if the case is overturned, even with the RFMA in place, states that currently have same-sex marriage bans on the books (32 as of 2022) could continue banning same-sex marriages, and couples who cross state lines to get married but return to a state with a ban in place may not have all the protections afforded to an opposite-sex married couple.
For many same-sex couples, the question now is, “Where do I begin?”
If you are a parent: Adopt your children.
It sounds counter-intuitive, but even if you are married and both parties are listed on the children’s birth certificate, the legal rights of non-gestational and non-genetic parents are not fully protected by law. You must complete a confirmatory/second-parent adoption.
FAQs:
Why adopt?
After the adoption process is complete, both parties are the parents of the children for all legal intents and purposes, and that parentage is recognized in all 50 states, regardless of individual states’ laws regarding same-sex marriage.
How long does the adoption process take?
The process may take anywhere from 6+ weeks for an uncontested adoption, to several months if there is a biological parent whose consent is required.
What are the Requirements for Second Parent Adoption in Oregon?
1. Residency. The adoptive parent, biological parent, or adoptee(s) must have resided in Oregon for at least six months immediately prior to filing the petition for adoption.
2. Consent. You must obtain consent from the biological parent (if not your partner), and the children (if 14 or older).
3. Begin the adoption process. The appropriate documents must be filed with the court and served upon DHS. Your adoption attorney will shepherd you through this process and ensure the proper documents are filed and served.
What does confirmatory/second-parent adoption cost?
For a simple, uncontested adoption, the average cost is between $3,500-5,000. However, each case is unique, and the final cost can vary depending on specific circumstances or any unforeseen issues that may arise.
For all Same-Sex Couples: Establish or update your estate plan.
Name a Guardian for your Children
Designate a legal guardian for your children in the event of death or incapacity of both parents through your estate plan.
Create or Update Your Estate Planning Documents
We recommend placing your assets in a living trust, which helps avoid the lengthy and expensive probate process. Trusts are private documents that, unless challenged, are not public record. A pour-over will is also a good idea – these wills are a catch-all, and direct any unallocated, forgotten or residuary assets in an individual’s estate into the living trust when the person dies.
Establish an Advance Health Care Directive
Name your spouse your advance directive representative. Advance directives are legal documents that provide instructions for medical care and only go into effect if you cannot communicate your own wishes. The two most common advance directives for health care are the living will and the durable power of attorney for health care.
Designate a Power of Attorney
Assign financial powers of attorney to your spouse. This ensures they can make critical decisions on your behalf if you become incapacitated.
Take Advantage of Transfer-on-Death Designations
Add transfer-on-death (TOD) designations to property titles, like homes and cars, to ensure your partner inherits them directly without legal complications.
We are heading into uncertain times, but by taking the concrete steps above, you can protect your family and the love you share, regardless of what the future political landscape holds. The legal team at LaMont Law is here to help you on this journey.
Catherine M. Gaskin
Adoption Attorney, LaMont Law