After the Election: Things LGBTQ+ Families Should Know Now

Following the election, many in the LGBTQ+ community are worried about the impact that the new administration will have on their lives. LGBTQ+ individuals, couples and parents can take steps now to protect themselves, protect their families, and prepare themselves for some possible changes.

No one can take away your marriage.

If you are married, no president can “undo” that legal status. If a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. People who are already married should know that that their marriages cannot be invalidated or erased.

If you are LGBTQ+ and not yet married, but you are concerned about your ability to marry in the future, it is highly unlikely the U.S. Supreme Court will reverse its 2015 decision in Obergefell v. Hodges. In that case the Court that found the marriage is a fundamental right under the Constitution, resulting in recognizing the right of all same-sex couples to marry.

No one can take away your adoption.

Adoption laws, like most family laws, are based on state law, not federal law, so the election should not impact adoption laws. If you are LGBTQ+ and have an adoption decree making you a legal parent to your children, no presidential or federal government action can take that away. Adoption decrees are meant to be permanent court orders that cannot be changed or undone in the future. Whether you are a birth parent or an adoptive parent, you have constitutional rights, and your rights cannot be removed without due process of law and a legal basis to do so (such as abuse or neglect). The U.S. Supreme Court's decision in V.L. v. E.L. in 2016 held that adoption decrees will be given “full faith and credit” under the United States Constitution, meaning they must be recognized in all 50 states. So even if another state changes its law to deny adoptions to LGBTQ+ families and you move to that state, your adoption decree will still be recognized. This is why adoption decrees are so important and valuable to LGBTQ+ families. They provide permanency and security for your family.

Adopt your children who are not already related to you by biology or adoption.

Most family law is based on state law, not federal law, so there should be no impact from the federal election on state-based family laws. However, if the election results are causing you to evaluate steps you can take to protect your family, securing an adoption decree to establish legal parentage is one of the most crucial steps you can take right now.

There is no parentage statute in Pennsylvania for children conceived through assisted reproduction that conclusively secures a legal parent-child relationship between a non-biological parent and the child. Without an adoption (or, in some cases, a pre-birth order), a non-biological parent’s rights could be successfully challenged. However, Pennsylvania, like every state in the U.S., must recognize an adoption decree.

Even if a birth certificate for a child born to married same-sex spouses lists both spouses as parents, this does not constitute a legal finding of parental rights.

Step-parent adoption (also sometimes called confirmatory adoption) is the adoption of a spouse’s biological or adopted child. Pennsylvania will allow a parent to adopt their same-sex spouse’s child, and this adoption will be recognized in every state, regardless of whether the state would have allowed the adoption to be completed within its borders. Once the adoption is complete, the adoptive parent will have exactly the same rights and obligations as the biological parent, bringing with it hundreds of rights and benefits including inheritance, custody, child support and medical decision-making.

If you have obtained a pre-birth order regarding parentage, it is advisable to obtain an adoption after the birth of the child. While the U.S. Supreme Court has ruled that states must recognize adoptions from other states, see V.L. v. E.L., 577 U.S. 464 (2016), there is no similar U.S. Supreme Court case regarding pre-birth orders. Therefore, adoptions provide the maximum protection.

Secure the U.S. immigration and citizenship status of children adopted from another country.

Families who have adopted children from another country should confer with an adoption attorney to ensure that the immigration and citizenship status for their children is secure. Some international adoptions require a Registration of Foreign Adoption action or a re-finalization of the adoption in the United States to confer U.S. citizenship to the adoptee.

For additional post-election information related to the trans community, click here.