Legal Recognition of LGBT Families: Second Parent Adoption

If you are a same-sex couple and you decide to have a child together, the issue of second parent adoption should be discussed even before your child is born.  Only a handful of states recognize same-sex marriage.  That means that the majority of our states do not recognize or acknowledge same-sex marriages.  Moreover, the federal government does not recognize same-sex marriage.  Many foreign countries also do not recognize same-sex marriage.

In its publication, Legal Recognition of LGBT Families, the National Center for Lesbian Rights (NCLR) says:

“In a number of states, a person who is not a legal parent does not have any legal decisionmaking authority over a child, even if that person lives with the child and functions as the child’s parent. For example, in some states, a person who is not a legal parent may not be able to consent to medical care for the child or even have the authority to approve things like school field trips. In addition, a non-legal parent may have no rights to custody or even visitation with a child should something happen to the legal parent, and may have no ability to claim the child as a dependent for health insurance. In the absence of a will stating otherwise, a child generally has no right to inherit from a person who is not a legal parent or relative.”

It is important to note that even if your own state recognizes your marriage, you will be considered a legal stranger to your child (and your spouse) in a state that does not.  That is where second parent adoption comes in.  It is important to speak with an attorney who understands the law as it applies to same-sex couples and second parent adoption.

Don’t take my word for it … this is also from the NCLR’s publication:

“Regardless of whether a couple is recognized as legally married or in a civil union or comprehensive domestic partnership, NCLR always encourages non-biological and nonadoptive parents to get an adoption or parentage judgment.”

Read our past step-parent and co-parent adoption posts.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2012 Irene C. Olszewski, Esq.

Using A Known Sperm Donor and the Connecticut Adoption Process

Here’s another past post of interest while I am on hiatus…

Known Sperm Donors and the Same-Sex Couple Adoption Process

I handle of a lot of adoption cases for lesbian couples in which one partner becomes the biological mother through alternative insemination.  One of the most common misconceptions (if you’ll pardon the unfortunate pun) is that when the couple uses the sperm of a donor whose identity is known to them, everyone can just agree that the baby will belong to the lesbian couple and that’s the end of the story.  Nope.  Sorry, folks.  That would be way too easy.

The known sperm donor is the biological father unless and until his parental rights are terminated by the Probate Court.   He has rights and obligations associated with the child including the right to custody and visitation.  He may also be obligated to pay child support to the mother, if she is the custodial parent.

We all know that the intent of the couple and their known sperm donor is for the lesbian couple to both be deemed the legal parents of the child.  That can certainly be accomplished but it does require a court decree.  I’ve had couples tell me that they simply won’t put the known sperm donor’s name on the birth certificate as the father.  Problem solved, right?  Nope.  As part of the co-parent or step-parent adoption process, you will have to produce documentation from the sperm bank that the sperm donor was anonymous if no known father is listed.  Sorry folks, you can’t mess around with the court.

Other people have suggested that they’ll just write up an agreement between the known sperm donor and the couple and that will solve everything.  Again, nope.  Sorry.  Too easy.  The guy is still the biological father unless and until the judge terminates his parental rights.

There are a lot of reasons for this, not the least of which is that the State has an interest in protecting your child.  It also has an interest in not having to support your child for the next 18 years.  Let me explain.  It’s wonderful when a couple decides to start a family.  They are full of good intentions, lots of love and plenty of dreams for the future.  Unfortunately, not all couples stay together until the baby is born and the adoption has been completed.  The State is aware of this.  The Court is aware of this.  The Department of Children and Families is aware of this.  Therefore, it is not in the best interests of your child to enter the world with only one legal parent.  If something happens to the biological mother, everyone wants there to be another legal parent to step in and raise the child.

But I want my partner to be that person, you say.  I hear you, honest I do.  That can certainly become a reality.  You just can’t do it with a slight of hand.  It has to be done correctly, through the Probate Court.  There are ways to memorialize everyone’s intentions before and during the process.  There are documents that can be created to assist you if something unfortunate does occur.

If you are a lesbian couple desiring to start a family and you wish to use a known sperm donor, please take the time to speak with a lawyer who understands the same-sex adoption process.  It’s always best to be informed.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2012 Irene C. Olszewski, Esq.

Play Groups: A Value for Your Child and An Opportunity to Educate the Heterosexual Parents

As a lawyer who facilitates step-parent and co-parent adoption for lesbian couples, I have the unique opportunity to speak to hundreds of lesbian moms about their parenting experiences.  I have concluded that those lesbian moms who engage in play groups with their child or children have an opportunity not only to enrich their child(ren) but to educate the straight contingent on the way the world discriminates against lesbian and gay families.

Before you shake your head and say, “I didn’t join a play group to further the cause,” hear me out.  I’m certainly not suggesting that educating the world should be your reason for connecting with a play group.  You should join for the right reasons, which is to benefit your chid(ren) and help them learn important socialization skills (all while having fun).

However, your participation might lead to a happy side effect.  If you are not part of a lesbian/gay-only play group, you will most certainly engage in conversation with heterosexual parents.  Inevitably, the conversation will turn to those real life issues we all so love to discuss.

Da da da daaaaaa …. there’s your moment of opportunity, folks.

My clients have told me that most straight parents are stunned when they are told that those lesbian parents have had to go through the adoption process in order that their biological child will be considered the legal child of the non-biological parent in all 50 states — even though they are legally married in Connecticut.  Remember that a child born to a heterosexual couple is presumed to be a child of the marriage (and thus of both parents) in every state.  Oops, that’s because heterosexual marriage is recognized nationally, federally and internationally, same-sex marriages are not.  Are you following me?

Okay.  So therein lies your opportunity to say that you had to endure some legal procedure that they didn’t have to do in order to have the same darn rights.  In every case, I am told, the response is something akin to, “that’s just plain ridiculous!”  Um, yes, I agree.

When the next election rolls around, those newly-unlighted folks might just pay attention to issues that will matter to the lesbian and gay community.  It’s worth a shot and hey, you were going to have to make idle chit chat any way.

My plan is simple:  educate one person at a time and the world will change.  Are you with me?

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2012 Irene C. Olszewski, Esq.

What Lead Up to Connecticut’s Co-Parent Adoption Legislation in 2000?

Prior to 2000, the same-sex partner of the biological mother of a child was not allowed by Connecticut law to adopt the child and become the legal co-parent.  In those days, the Probate Court would only allow such an adoption if the biological mother terminated her parental rights to her own child!  I know it sounds ridiculous but the way the statutes were written at the time, well, let’s just say there were some serious problems.

Along came Anne and Malinda, two women in a committed relationship of more than 10 years who had a child together via artificial insemination in 1992.  They petitioned the Probate Court in 1993 to name Malinda (the non-biological mother) a legal co-parent without terminating the parental rights of Anne (the biological mother) but the petition was denied.

The couple appealed the Probate Court’s decision in Superior Court and the judge determined that the proposed adoption would be in the baby’s best interest.  In the case, known as In Re Baby Z, the court also concluded that 1) the application for the adoption of Baby Z.  did not fall within any of the three categories of adoptions (statutory parent, stepparent or blood relative adoptions) that were permitted by Connecticut statutes;  2) that our statutes gave the Adoption Review Board the authority to waive the requirement under the statute that only a statutory  parent may give a child in adoption to an adult who is neither the spouse of the child’s sole legal parent nor the child’s blood relative and 3)  that because stepparent adoptions pursuant to our statutes proceed without disturbing the parental rights of the child’s sole legal parent, that, upon the Adoption Review Board’s granting of a waiver of the statutory parent requirement the proposed adoption could proceed without terminating Anne’s parental rights.

The case was remanded to the Probate Court with direction to submit an application to the Adoption Review Board for a waiver of the statutory parent requirement of Connecticut General Statutes § 45a-724 (a) (1), and then to grant the proposed adoption upon receipt of a waiver.  The waiver was subsequently denied.

A total of 3 appeals were filed.  I won’t get into the specifics of those appeals here other than to address the outcome of the following:

In the infamous In Re the Adoption of Baby Z case (1999), the Connecticut Supreme Court ruled, in brief summary, that based on a plain-language reading of the adoption statutes and their legislative history, the Adoption Review Board could waive the placement requirement but not the statutory parent requirement. In the Baby Z case there was no statutory parent and the proposed adoption did not fit the other specifically authorized adoption situations, so the probate court had no authority to grant an adoption. The majority acknowledged that the best interest of Baby Z would be served by an adoption but said that it was up to the legislature to establish the limitations on who can be adopted and in what circumstances.  The historic opinion for that case is quite lengthy but well worth a read.

Subsequent to that decision, the Connecticut legislature passed Public Act No. 00-228, An Act Concerning The Best Interest Of Children In Adoption Matters (2000) which reads, in pertinent part,

“Subject to the approval of the Court of Probate as provided in section 45a-727, as amended by this act, any parent of a minor child may agree in writing with one other person who shares parental responsibility for the child with such parent that the other person shall adopt or join in the adoption of the child, if the parental rights, if any, of any other person other than the parties to such agreement have been terminated.”

And that’s how co-parent adoption came about in Connecticut.

The End.  (Well, not really).

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2012 Irene C. Olszewski, Esq.

New Britain Herald Prints Articles on Issues Faced by Same-Sex Married Couples

My assistant passed along an article published in the November 19, 2001  November 20, 2011 edition of the New Britain Herald that discusses the issues faced by same-sex couples who are married in Connecticut.  Reporter Brenda Maguire did a wonderful job researching the statistics and collecting anecdotes from same-sex couples in the state.

According to Maguire:

“Three years after the court ruling, there have been 5,929 same-sex weddings performed in Connecticut, as of the first of this month. Bristol has issued 56 same-sex marriage licenses and New Britain 35. But as the number of licenses mount, so do frustrations over inconsistencies between Connecticut law and those laws observed both federally and in other states. Gay couples, for instance, contend with a federal tax system that doesn’t recognize their union.”

One couple, interviewed for the article, stated that their Connecticut marriage helped them in that when their daughter was born, they did not have to do a 2nd parent adoption because both of their names are on the birth certificate.  Unfortunately, that is only partially true.  I had a nice conservation with Maguire to explain the discrepancy believed by that couple (and many other same-sex couples) who are married in this state.

I have blogged on this topic more than once in this space.  Read some of the posts here and  here and here and here.  Most recently, I posted on a publication authored by GLAD (Gay Lesbian Advocates and Defenders) that states:

“State law—and not federal law—determines who is a parent and each state has its own set of laws. And even people joined in marriage, civil union or domestic partnership (in states where these statuses are available) need to take additional steps to protect their children because those statuses could change and also may not be recognized in other states.

  • In states where second parent adoption or parentage judgments are available, all non-biological parents should take one of these steps. This is the best way to ensure that you will be recognized as a parent nationwide.
  • If you cannot adopt or get a parentage judgment it may be possible for you to do a co-guardianship or parenting agreement through the courts.
  • If you cannot adopt or get a parentage judgment, you should:
  • Be sure the biological or adoptive parent writes a will naming you as guardian for the child in the event of the parent’s death.
  • Be sure the biological or adoptive parent signs an authorization for you to consent to medical care.
  • Enter into a written agreement clarifying your intention to jointly parent your children.”

It is critically important to remember that even though the non-biological parent can place her name on the child’s birth certificate, the status as parent may not be recognized by all states or foreign countries.  The overall cost of step-parent adoption in Connecticut is low; it is not as costly as adopting a child through an agency, as most people fear.

The only way to become the legal step-parent to your spouse’s biological child for purposes of federal recognition (such as social security benefits and some insurance plans) is to go through with the step-parent adoption.  In emergency medical situations involving your child, it is critical if you are in a state that doesn’t recognize your marriage.

For information about the step-parent and co-parent adoption process on my website, click here.  There is also a complimentary brochure on the subject available on the Legal Guides page of this blog here (there is also a link to the brochure from my website).

To read Brenda Maguire’s well-written article titled “Three years after legalizing same-sex marriage, gay couples in Conn. still face legal, tax issues and a lack of federal recognition” click here.

One final note:  lesbian and gay couples who are married in Connecticut (or another state) should also be mindful that state-specific protections, such as the right to visit one’s spouse in the Intensive Care Unit or the right to claim your spouse’s bodily remains upon death may not be recognized by all states or foreign countries.  There are documents of protection that can be drafted for you by an attorney to cover those specific situations.  To read more about it, visit the section of my website on the topic by clicking here.  Be sure to check out my blog archives for additional posts on this sensitive subject.  There is also a complimentary brochure on the subject available on the Legal Guides page of my blog here.

The bottom line is that you should not assume that your marriage gives you all the rights and protections of spouses in every state or foreign country.  When in doubt, have a conversation with an attorney knowledgeable in lesbian and gay law.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

Protecting Families: Standards for LGBT Families

Gay& Lesbian Advocates & Defenders has published its guide, Protecting Families:
Standards for LGBT Families
which is a must-read for all lesbian and gay couples. The guide underscores the importance of obtaining legal recognition for your family and working with a knowledgeable attorney to make sure that you have the protections you need.

Adoption by the non-biological parent is emphasized, both for the protection of the child and the second parent. I have posted numerous times in this space on adoption procedures and related issues.  Click here to be directed to the co-parent/step-parent adoption section of this blog.

I hear from gay and lesbian couples across the country every day and cannot say it enough:  protecting your relationship and your family should be your top priority, not something you put off for another day.  For more information, please visit the lesbian/gay specific section of my website here.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

In the Wake of Illinois Civil Unions, Catholic Charities Files Lawsuit Over Adoption & Foster Care Policies

I’m starting to feel like Bill Murray in Groundhog Day.

A state passes a civil union or gay marriage law and the religious organizations rear their ugly heads instantly.  In the latest chapter of religion versus civil unions, the Huffington Post reports that Catholic Charities in Illinois has filed suit to amend the legislation to allow faith-based organizations to “decline an adoption or foster family home application” to a couple in a civil union “if acceptance of that application would constitute a violation of the organization’s sincerely held religious beliefs.”

Read the article here.

The organization ceased adoption & foster care programs in advance of the law going into effect, as a measure of protest.

Organizations that are supposed to foster love should not promote hate.  Is it just me?

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

Arrest Made in Miller-Jenkins Custody Case

I posted here and here about the Miller-Jenkins custody case.  I received the following press release from GLAD while I was away for the holiday weekend. It is re-printed here for your review in its entirety:

ARREST MADE IN MILLER-JENKINS CUSTODY CASE

Statement of Janet Jenkins

April 21, 2011

As just reported in the Rutland Herald (pay site), there has been an arrest in the custody case involving former civil union partners Janet Jenkins and Lisa Miller, and their daughter, Isabella Miller-Jenkins. Lisa did not comply with a court order to transfer custody of Isabella to Janet on January 1, 2010.

The person arrested is one Timothy David Miller (link to criminal complaint). Little more is known at this point.

Janet Jenkins issued the following statement from her home in Vermont:

“I’m grateful to everyone in law enforcement for working so hard on finding my daughter, as well as to my attorney, Sarah Star. I know very little at this point, but I really hope that this means that Isabella is safe and well. I am looking forward to having my daughter home safe with me very soon.”

Attorney Sarah Star of Middlebury, who has been representing Janet, said, “It is clear that the government has been working hard on this. Janet is very pleased and we are both hopeful that this will be a step in the right direction of bringing Isabella home. At this point we need to let law enforcement do their work, and recognize that there are still steps to go.”

Mr. Miller will make an initial appearance in U.S. District Court for the District of Vermont in Burlington on Monday, April 25, at 9 a.m.

Gay & Lesbian Advocates & Defenders has represented Janet at the appellate level in Vermont; Lambda Legal has represented Janet at the appellate level in Virginia.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

Virginia’s Governor Opposes Gay Adoption

According to the Washington Post, Virginia’s Governor Bob McDonnell (R) is not a supporter of proposed regulations that would allow gays and lesbians to adopt in that state.

“I don’t think we ought to force Catholic Charities to make that part of their policy or other similar situated groups,’’ McDonnell said. “Many of our adoption agencies are faith-based groups that ought to be able to establish what their own policies are. Current regulations that say you can’t discriminate on the basis of race, color or national origin I think are proper. I think previous efforts to expand that to a number of other classes are going to have very strict scrutiny to make sure that we don’t inhibit the very fine work some faith-based organizations are doing.”

Ah, it’s the religion card again. Hmmm.

Read McDonnell opposes allowing same-sex couples to adopt children in Virginia [Washington Post]

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

Co-Parent Adoption in North Carolina

I participated in a national conference all this evening sponsored by the National LGBT Bar Association titled “What hath the North Carolina Supreme Court wrought?” which discussed the state of same-sex adoption in North Carolina.

For those who missed it, the North Carolina Supreme Court ruled in December 2010 that 2nd parent (co-parent) adoption is not authorized by that State’s statutes, thereby voiding all existing 2nd parent adoptions.

Read the North Carolina Supreme Court decision in Boseman v. Jarrell .

If you live in North Carolina and your partner has adopted your biological child, lawyers with experience in GLBT law suggest that you move your family to a state that does allow 2nd parent adoption …. and get an adoption granted in that state.

Connecticut allows co-parent adoption but remember that you, your partner and the child MUST be Connecticut residents (6 months is the benchmark) in order to obtain an adoption in this state.  Read my earlier post: Establishing Residency in Connecticut for Co-Parent or Step-Parent Adoption.  (Please, do not call or e-mail my office to ask how to get out of living in Connecticut or pretending to live in Connecticut — and still doing an adoption here.  It’s not possible.  You MUST be a resident or Connecticut courts do not have jurisdiction over your adoption.  Period.  There’s nothing more I can tell you.  The above-referenced post tells you how to become a valid resident.  And seriously, folks, I don’t have time to explain this over and over to a couple hundred people one caller/e-mailer at a time!  I’m busy making adoptions happen for people who ARE residents of Connecticut.  Thanks in advance for respecting this request).

Most people can’t afford to pick up and move to another state, of course.  Not in this rough economy.  For those who must remain in North Carolina, you should consult with a lawyer there who is experienced in GLBT law.  From what was discussed in tonight’s teleconference, they can help you find ways to protect your family now that the adoptions are no longer valid.  It’s a call you should make sooner rather than later.  The North Carolina Gay Advocacy Legal Alliance may be able to assist you in finding the right lawyer.

It was speculated that this damaging court decision will open the door for North Carolina’s legislature to enact a state DOMA law (banning gays and lesbians from marrying).  For the first time in approximately 100 years, North Carolina’s legislature is Republican-controlled.  In light of the Court’s decision, that’s not good news.

In the coming weeks, I will post more on this topic.  For now, read the Court decision I linked to above.  Then talk to your straight allies and ask them how we can work together to prevent homophobic legislation.

If you live in North Carolina, get involved with Equality North Carolina and help them protect your rights.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski