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

Nov21

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.

Protecting Families: Standards for LGBT Families

Sep9

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

Jun8

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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Arrest Made in Miller-Jenkins Custody Case

Apr25

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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Virginia’s Governor Opposes Gay Adoption

Apr7

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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Co-Parent Adoption in North Carolina

Feb3

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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Update on Adar v. Smith: Louisana Versus Out-of-State Adoptions

Jan26

You may recall the Adar v. Smith case I blogged about in February 2010. Basically, the child of a gay couple was born in their home state of Louisiana. The adoption took place in New York and Louisiana refused to honor the adoption and issue a new birth certificate for the child. Lambda Legal filed in U.S. District Court for the Eastern District of Louisiana in October 2007. The case was appealed and ultimately heard by the U.S. Court of Appeals Fifth Circuit, which rendered a decision in favor of the Plaintiffs in February, 2010. In March 2010, Louisiana Attorney General Buddy Caldwell filed a petition asking for rehearing by the full Fifth Circuit Court. The guy apparently won’t give up and admit defeat. Lambda Legal made its same argument before the courts for the third time on January 19, 2011.

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Known Sperm Donors and the Same-Sex Couple Adoption Process

Jan7

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.

Adoption Issues for Lesbian and Gay Couples

Dec16

I listened to a teleconference tonight presented by the National LGBT Bar Association titled, “Cutting Edge Issues in Adoption and Parentage.” The presenters were attorneys experienced in LGBT family law matters. Although it was a brief program, it was most insightful.

The one point that was underscored by literally every panelist was the fact that same-sex marriages/civil unions are not recognized by all 50 states or the federal government. Thus, if a lesbian or gay couple wishes to parent a child together and wants the child to have two legal parents, the non-biological parent should adopt the child.

The issue of Full Faith and Credit among the states was raised with respect to parentage and it was pointed out that unless there is a court judgment of some sort declaring the non-biological parent to be the second parent of the couple’s child, a state that does not recognize same-sex marriages/civil unions does not have to give full faith and credit to the couple’s marital/civil union status — and thus will not recognize the non-biological parent as the child’s second parent.

I practice law in the State of Connecticut where same-sex marriage is available. Connecticut also allowed second parent adoptions by lesbian and gay couples prior to allowing civil unions and marriages. Many same-sex couples ask me why they have to bother with the adoption process if they were married in Connecticut prior to their child being born. The answer is the same one that the panelists gave tonight: not all states recognize same-sex marriage and therefor are not required to view the non-biological parent as the child’s legal second parent.

Clients have told me that upon calling a Probate Court to ask if they are required to petition for their same-sex partner to adopt their child if they are legally married in Connecticut, they have been told that adoption is not required by virtue of their marriage. While that is true in Connecticut, it is only a partial answer — and I find it disconcerting that so many same-sex couples are not given the full answer because they are unwittingly exposing their child (and second parent) to potential disastrous consequences.

That sounds ominous, I know. It’s meant to be. In all seriousness, if you are the biological parent of a child and your intent as a couple has always been to parent the child together, you can’t afford to leave loose ends. If you are traveling in a state that does not recognize your Connecticut marriage and something happens (such as a car accident), your child may be left unprotected if you are seriously injured or killed. Your legal spouse will have no legal rights to the child in that state and will be unable to consent to medical treatment or related issues for your child (or for you).

Horror stories abound in which same-sex couples believed their marriage protected them in all states. It does not. Please hear me.

If you and your partner plan to start a family, consult with a licensed attorney who is experienced in lesbian and gay law first. You’ll be glad you did.

DOWNLOAD my complimentary brochure:
Co-Parent and Step-Parent Adoption for Lesbian & Gay Couples .pdf (2010)

A Compendium of Recent News Items

May5

Here are some interesting blog posts and news items that you may be interested in reading. Some are from the last couple of weeks or so, others are older but still worth a read: