February 21, 2017
One of the most common post-election questions that I get is from same-sex couples. “What will happen to my family now that Donald Trump is in office?” They want to know if they need a second-parent adoption or other legal means to protect their families. Although I hate not being able to give people an answer, the only honest answer to this question is, “no one knows yet.”
In January 2016, Trump said in an interview on Fox News that he would “strongly consider” appointing justices that would overturn the case that effectively legalized gay marriage ruling (Obergefell v. Hodges). Specifically, he said “If I’m elected, I would be very strong on putting certain judges on the bench that I think maybe could change things,” in reference to gay marriage.
However, in November 2016, Trump said this in an interview with Lesley Stahl on “60 Minutes:”
LESLEY STAHL: Do you support marriage equality?
TRUMP: It — it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.
STAHL: So even if you appoint a judge that —
TRUMP: It’s done. It — you have — these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.
We all know that actions speak louder than words, but in this case Trump’s only action that relates to the issue is also hard to interpret. His U.S. Supreme Court nominee, Neil Gorsuch, also has a mixed history when it comes to gay rights. According to Time, Gorsuch took the position in his dissertation for his Doctorate of Philosophy at Oxford University that the Constitution does not protect the right of gays and lesbians to marry.
On the other hand, the Huffington Post reports that Gorsuch was supportive of and even effusive about his clerk’s same-sex marriage.
Goodbaum, now an attorney in Connecticut, recalled fondly their conversation on the week of the wedding: “He said, ‘This is a wonderful thing. You’ll see how your relationship grows.’”
Goodbaum, who in 2009 served as a clerk for the Colorado federal appeals court judge, added: “I have never felt the least whiff from him of homophobia or intolerance toward gay people.”
Still, it is a judge’s job to apply the law as written, not to interpret through the lens of personal beliefs or politics. The short answer is: No one knows.
Generally speaking, the law in Virginia, where I practice, is that a child born during a marriage is presumed to be the child of those two married people. Also generally speaking, changes to the law are not retroactive. However, to my way of thinking, a lot of things have happened since Trump took office that I would not have believed before he took office. It would seem logical that the courts would reject a second-parent adoption from a married same-sex couple just the way it would if a married father tried to adopt his own children. However, I have filed such adoptions for clients with a “better to be safe than sorry” outlook, and had them approved.
I advise same-sex couples who ask me to consult with an attorney if they are feeling worried about the status of their families. Many attorneys (including myself) are doing such consultations for free or at reduced rates. If you need a consultation or a referral to an LGBT-friendly attorney in your area, please don’t hesitate to get in touch.
Do you have more questions about adoption? Contact The Vaughan Firm to speak with an adoption attorney.