The Dobbs decision overturning Roe and Casey leaves much of the nation wondering what impact this decision may have on family law and specifically on family law matters related to same sex couples and/or unmarried couples. While the Dobbs decision distinguishes itself from Obergefell and Lawrence, both the reasoning and Justice Thomas’ concurrence show that same sex marriage recognition hangs by a thread in the United States. We continue to recommend—as same-sex couples have both pre- and post-marriage recognition with Obergefell—that couples not simply rely on the expectation that their marriage will be legally recognized everywhere. To ensure that your family is as legally protected as possible it is best to have your personal planning documents (i.e., durable powers of attorney, living wills, revocable trusts, etc.) in place, in addition to separately establishing your legal relationship to your child(ren) through the judicial system. We are a mobile nation and a mobile world, the past two years of pandemic notwithstanding, and when we travel, we need to ensure that our families are legally recognized.
Proper estate planning/personal planning documents designate chosen individuals to safeguard and manage our health, our children, and our estates in the event of either an emergency or a third party or entity intrusion into our families. This kind of intrusion can include, but not be limited to: (i) a hospital or health care facility not recognizing spousal status or parental status towards a child, denying access to a spouse or child, and/or denying the ability to make critical life care decisions for a spouse or child in medical crisis; (ii) a state intervening in a parent’s constitutionally protected right to raise their children as they see fit; (iii) a state determining how a pregnant individual should address their pregnancy, healthcare, and status; (iv) a state or third party determining who will inherit from your estate when you die; and (v) a state or third party making critical life or death decisions about our health care; etc. These unwanted intrusions into the sanctity of our families often occur in moments of crisis when we are least emotionally able to endure an outside attack on our familial rights.
Why doesn’t a birth certificate or marriage license always work? With same sex families under attack, identity documents and vital records such as birth certificates and marriage licenses are NOT legal judgments to which one of the 50 US sister states must necessarily provide full faith and credit. In order to create relationships to your children and spouse that are recognized in a hostile state/jurisdiction, please work with a knowledgeable attorney on obtaining a judgment of paternity/adoption/parentage for your children in addition to creating and maintaining your personal planning documents designating healthcare proxies, powers of attorneys, and living wills, designations of standby guardians, and wills. In this way, the sanctity of your family will be best protected.
We are living in a challenging time and the legal status of families and marriages is in flux. Make sure you do everything to safeguard your legal relationships and to protect your family from unwarranted outside intrusion. We at Cipriani & Werner are here to help and so are many of the national organizations that have been working with our families for decades. Please feel free to reach out to us with any questions and we will help you navigate this challenging moment in history.
If you have any questions, please contact Eva N. Juncker at firstname.lastname@example.org or (202) 280-2275.