Legal protections for growing LGBTQ+ families

September 07, 2022

For LGBTQ+ parents, having your name on the birth certificate may not be enough. Learn what steps to take to legally preserve your family and protect what matters most. 


Deciding to have kids is a big, exciting decision, but also one fraught with complications if you’re in a same-sex relationship. The legal protections for LGBTQ+ families can involve some added complexity. If you are a member of the LGBTQ+ community and are looking for ways to protect your growing family, here are a few actions to consider with the help of your legal advisor.


Why are legal protections important for LGBTQ+ families?

While your child will know you are their parent, the state might not legally view you as such. When a parent doesn’t have legal guardianship over their child, they are denied the ability to make important decisions on behalf of that child. Without legal guardianship, you may not be able to take your child to their doctor’s appointments or to get vaccinated. You can’t travel between states, add them to your health insurance or pick them up from daycare. For the parent that didn’t biologically contribute to their child’s creation, having a legal connection from child to parent is vital for the safety and care of the child.


Obtaining a lawyer for your same-sex family

Whether you’re having your first child or already have a full house, finding a legal advisor to consult with is important to protecting your family. Consult with an LGBTQ-affirming lawyer who you know will have your best interests in mind. Your lawyer should be familiar with state and local laws and be able to guide you through any tricky or confusing legal situations.


Adoption rights for same-sex couples

The 2015 passing of Obergefell v. Hodges by the Supreme Court, which deemed same-sex marriage legal, simultaneously made child adoption and fostering legal for same-sex couples in all states. Should Obergefell v. Hodges be overturned, states will revert to their pre-2015 status on same-sex marriage families, which generally means fewer protections for LGBTQ+ parents. It’s important to take necessary legal action now to preserve the connection you have to your child should any laws change in the future.


Second-parent adoption for non-biological LGBTQ+ parent

If you are not the birthparent of your child, regardless of whether you are listed on their birth certificate, it’s wise to do a second-parent adoption to legally adopt your child. Second-parent adoption (also known as confirmatory adoption) will create a federally recognized connection between you and your child, regardless of how your marital status is viewed by the state. This is similar to the process a stepparent would go through to legally adopt their spouses’ children who are not biologically related to them.

Second-parent adoptions are processed through your local family court system. In some states you may have additional hurdles to jump before being given an adoption hearing, such as:

  • A home study, conducted by a social worker
  • Criminal and child abuse background checks
  • Financial verification
  •  Reference letters
  • Physician statements

Depending on state laws, these qualifications could be waived by the birth parent. This is also the process a parent would take to adopt their spouse’s children from a previous relationship, also known as a stepparent adoption. This type of legal protection for your LGBTQ+ family, with home visits and legal fees combined, will cost around $2,000 – $3,000.


Surrogacy protections for growing LGBTQ+ families

For those expanding their family using an egg donor and surrogate, there are certain legal rights and requirements to consider. First, the egg donor: If you are using a reputable egg donation agency, there will be a waiver built into the process that legally severs the donor’s connection to the egg, meaning they can’t claim they are the legal guardian. Next, the surrogate: As with the donation, working with reputable partners means you and your surrogate will be legally protected. The legal process during surrogacy consists of:

  • An agreement with the surrogacy agency between all parties
  • The surrogate’s contract
  • A pre-birth order or post-birth adoption

Depending on your state’s laws, you may be able to claim legal guardianship of your child before they are even born through something called a “pre-birth order.” This legal contract will likely require verification from the medical professionals who helped you conceive, plus signatures from your surrogate and their spouse.

If a pre-birth order is not available in your state, you may have to file for adoption post-birth. If your genetics were contributed to the creation of your child, you are considered a legal guardian. If you are not biologically related, you will have to complete a second-parent adoption to create a legal connection between you and your child. 


Power of attorney for LGBTQ+ families

A power of attorney grants one person the power to make decisions on behalf of another. These permissions can be partial, such as having a power of attorney for healthcare or financials only, or general permissions can be granted. Essentially, if you have power of attorney over someone, you can make decisions on their behalf if they are unable to. Without these protections and depending on state laws, tough financial and healthcare decisions would be out of your hands.


Wills and trusts to protect your LGBTQ+ family

In the event of your passing, you will want your estate to be transferred to those you care for most, like your children. Writing a will can ensure this happens, as without one, the state will likely decide how your estate is distributed. By signing a will or creating trust, you are taking one more step towards protecting your assets.


Preparing for the cost of obtaining extra legal protections

Preserving your family is of greatest importance, but it does require financial coverage of the legal protections you’ll need. The cost of obtaining a lawyer varies by state, but on average costs between $250-350 an hour. Don’t let the cost of an attorney dictate whether you contact them about representation, as some lawyers operate on a sliding scale. Depending on your income, you may also qualify for low-cost or free legal assistance.


Interested in learning more planning for your LGBTQ+ family? Visit our resource page with more information to help you get started.

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