Parental Rights battle in Michigan: When law doesn’t call you mom

Lesbian couple who used artificial insemination to have kids fight over parental rights now that they’ve split up.

For the last eight years, Jennifer Zunk’s life has been filled with motherly duties.

Changing diapers. Pediatrician visits. Making lunches. Doing laundry.

The kids call her mom. But the law doesn’t.

In a thorny custody case involving a lesbian couple who used artificial insemination to have a family, Zunk is in the fight of her life to protect her parental rights with two children she has raised since birth. She and her partner of 15 years broke up last year, and her ex-partner is now trying to terminate Zunk’s guardianship of their 8-year-old daughter and 6-year-old son.gay family law

But Zunk is fighting back as she faces what could best be described as a medical and legal conundrum — a difficult situation in which the law and technology are out of step. Technology allowed the two women — one a doctor; the other a teacher — to have and raise children together. But the law doesn’t recognize them both as parents.

That’s because of another legal snafu: The women broke up before same-sex marriage was legalized in the U.S., so Zunk couldn’t adopt the children because Michigan didn’t allow it. As it stands, the law only recognizes one parent: Her ex-partner — 47-year-old urologist Carin Hopps of Monroe, who delivered both children after being impregnated using in vitro fertilization. She is the biological parent of the daughter, who was conceived using a sperm donor. But she’s not biologically related to the son, who was conceived using a donor egg and a donor sperm.

Both women have been in the children’s lives since birth. Both entered into agreements to use egg donors. Both have paid for their upbringing. And the kids, who have hyphenated last names for each parent, call them both mom.

Welcome to America’s latest custody battle — a new and even more complicated fight over parental rights involving same-sex couples who used artificial reproductive technology to have babies and raise them together, but then break up with one parent then claiming “they’re mine.” Family law experts say the law isn’t exactly clear on how to handle this scenario, which has left parents like Zunk wondering: Will I lose my children?

“It’s the wild, wild West out here,” said Zunk’s attorney, Dana Nessel, who believes Michigan has outdated custody laws that are costing same-sex spouses their parental rights. “It’s not a disaster waiting to happen — there are disasters which occur on a regular basis, needlessly. Other states are literally light-years ahead of Michigan in this regard.”

Detroit Free Press, by Tressa Baldas, March 20, 2016

Click here to read the entire article.

Gay Premarital Agreements

Gay Premarital Agreements, or Prenups for gay couples, are now a viable and important option for long and short term couples who plan to marry.

Prior to the Obergefell Supreme Court marriage decision from June of 2015, gay couples could enter into “Domestic Partnership Agreements” which would approximate the benefits of gay Premarital Agreements, but lacked the certainty of enforcement in many courts around the country.

 

Before we discuss what a Premarital Agreement can do for a gay couple, there are limitations to these agreements which must be understood to grasp their scope and importance. First, a Premarital Agreement cannot do the following:

  1. Premarital Agreements cannot be “unconscionable” at the time of drafting or at the time they are enforced.
  2. Provisions in a premarital Agreement concerning child custody, visitation or support are not binding on a court.
  3. Your Premarital Agreement cannot create an incentive to divorce.
  4. Your Premarital Agreement cannot create an incentive toward conduct that it illegal or unfair.

While it may seem obvious, Premarital Agreements cannot anticipate, nor should they, the needs of a child in a married relationship. The best interests of a child are always the primary concern of a court and those needs may change from the time an agreement is executed to when it is subject to enforcement.  Child custody, visitation and support issues must be addressed at the time of the dissolution of the marriage.

lesbian family law

What can a Gay Premarital Agreement do? They can memorialize each spouse’s respective contributions toward the acquisition of major assets (both prior to and after the marriage), such as real property, investments and so forth, and provide a mechanism for division of assets and liabilities in the event of dissolution of the marriage.  This is of particular importance as many gay couples have been together longer than they have been allowed to marry.  Therefore, property may have been acquired by the couple in disproportionate percentages without adequate documentation of contribution.

Premarital Agreements define financial obligations to one another, both during the marriage and after dissolution. While many states, New York included, have a statutory formula which must be incorporated into a Premarital Agreement to protect both parties, the parties may deviate from that formula as long as they are not taking advantage of one another or the law.

Premarital Agreements for gay couples can define what separate property and joint property is for the purposes of distribution upon divorce or separation. For instance, in many states, marital property is defined as anything acquired by either spouse after the marriage.  The agreement will allow the parties to characterize property as they choose, not as the court chooses, and protect that property from unfair distribution.

Premarital Agreements for gay couples, as for non-gay couples, have a few prerequisites. In New York, for instance, a Premarital Agreement must be fair at the time of drafting and at the time of dissolution.  Each party must have independent legal counsel and each party must fully disclose all financial information to the other prior to the execution of the agreement in order for a court to enforce that agreement.

Understanding the limitations and benefits of a Premarital Agreement can be reassuring to a couple looking to marry, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Anthony@timeforfamilies.com.

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Kiwi dads speak out from Mexico – Their Story

Meet Lachlan, Kelly and Blake: the newborns who are about to find themselves at the center of an international legal storm.

The “triplings” were born to surrogate mums in Mexico, in an arrangement with their Auckland parents, David and Nicky Beard, and an Argentinian egg donor.

Kiwi dads, the Beards have now decided to publicly identify themselves on Stuff, to raise awareness of their battle. They believe they were the last gay couple allowed to use international surrogates to give birth to their children, as Mexico tightens its IVF laws to bring them in line with most other nations.

David Beard, 41, the biological dad, is a prominent lawyer and the owner of Auckland law firm LegalStreet. His husband Nicky Leonard Beard, 32, is originally from Ireland. The couple issued a simple plea early on Tuesday morning: “David, Nicky, Lachlan, Blake and Kelly simply want to come home to their family.”

international surrogacy

Speaking openly early on Tuesday, David Beard shared his emotions at becoming a father.

“I cannot describe the feeling. It was beautiful. It was instant love and caring, like a lion with its cubs, I looked at them and could not believe that they had come from me.

“I looked at their eyes and their faces and I cried. I only cry when I am happy – which is weird in itself! They are beautiful, and no matter how smelly the nappies are, they are still beautiful.”

The couple desperately wanted to get their children home from Villahermosa. They were pleading for help from friends and family around the world but, most of all, from the New Zealand and Mexican governments.

Click here to read the entire article.

by JONATHAN MILNE, NICOLE LAWTON AND ANNA BURNS-FRANCIS – Stuff.co.nz March 29, 2016

Parent Adoption – Is it Right for Your family?

The “parent adoption” process is also referred to as Second Parent or Step Parent Adoption. Here is what you need and what you need to know!

When one partner or spouse in a relationship adopts the biological child of their parent or spouse that is referred to as a “Parent Adoption.” If the parties are unmarried, it is called a Second Parent Adoption.  When the parties are married, it is called a Step Parent Adoption.  While gay couples across the country enjoy equal marriage rights, the laws for New York State adoption are still muddled, and it’s advisable for most same-sex couples to petition for a second or step parent adoption to build that legal relationship between non biological parent and child. If there is another biological parent involved, or if a couple uses a known sperm donor, their consent will be required for the adoption to move forward.  If, however, the child is the product of an anonymous sperm donation, then no consent is required.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

New York State Adoption Step by Step

In a nutshell, you need to compile a lot of paperwork and have a good family lawyer, preferably one that specializes in adoptions for same-sex couples. Here is a rundown of what you will need:

  • The completed intake from your attorney. This is a general questionnaire that includes information for both parents and the child.
  • The original birth certificate for the child. A copy will not suffice. You will, however, get a new original birth certificate after the adoption which will add the name of the adoptive parent if it is not already on the original birth certificate.
  • A letter from the employer of the petitioning parent, and in some counties the biological parent, stating their position and salary. If you are not currently employed, they will need your last year’s tax returns.
  • A letter from the doctor of both parents stating that they are in general good health.
  • A letter from the child’s pediatrician stating that he or she is in general good health.
  • A completed form 1-D (a more elaborate medical assessment) by the child’s pediatrician
  • In cases of a surrogacy, you will need copies of your carrier and donor agreement.
  • In cases of artificial insemination, in vitro fertilization and surrogacy, a letter verifying insemination.
  • If married, a copy of your marriage license.
  • Previous divorce decrees if either parent has been previously married.
  • If either parent has ever been arrested or convicted of a crime, the details and disposition records for any offense must be submitted.
  • A list of every residence the petitioning parent has lived at for the past 28 years, including months and years associated with every address.
  • Financial information, including the value of your home, any owned real estate, stocks and bonds, life insurance information and any sources of income other than employment.
  • The petitioning parent must be fingerprinted for a criminal background check
  • A home study, which is generally arranged for once your lawyer has been retained.

Keep in mind that this process may vary slightly from state to state and county to county, so it’s important to find an attorney familiar with the legal details in your specific location. While the New York State parent adoption process may seem harrowing, keep in mind that your adoption attorney is there to help you, advise you and even help keep you organized every step of the way.  Read more about the process here.

Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at Anthony@timeforfamilies.com.

Why You Should Always Meet Your Gestational Carrier In Person

 Meeting your gestational carrier is a required component of the matching process. We are, after all, human beings with emotions and body language and senses and intuition.

It almost sounds a little silly as I type out those words, and I’m the one writing them.  What gives? Who doesn’t meet their gestational carrier, you might wonder.

Believe it or not, it happens.

In my early days of surrogacy, I belonged to several online support groups with surrogates and intended mothers from across the country.  Although the majority of the experiences the women brought to the group were positive, there were a few hair-raising ones as well.

One particularly unfortunate story involved an experienced surrogate carrying for a couple that maintained homes in the United States and Europe. They had an independent agreement (meaning they didn’t use an agency to find one another or negotiate their contract) and they used a US fertility center. They used donor eggs and the intended father’s sperm, and the surrogate was pregnant with their baby girl.

Throughout the contract agreement phase and the entire pregnancy, the surrogate spoke only with the intended father by phone. He told her that his wife spoke little English and they were overseas, so she had no contact with her intended mother.

When she delivered the baby, the intended father didn’t come to the birth. Within a day or so of giving birth, he revealed to her that his wife was never aware of the pregnancy and did not want the child, and therefore he didn’t want the baby either.

Shocking, right?!?

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All’s well that ends well (in theory, at least) – the surrogate was able to get temporary guardianship of the baby and placed her with adoptive parents, who no doubt were elated.   But the guy who orchestrated the pregnancy and his unsuspecting wife? Clearly all sorts of crazy.

It turns out that the surrogate never met either of the parents (and this was long before the days of Facetime or video conference calls). She’d only spoken with the intended father on the phone, and nothing more. Granted, in no way, shape or form did she deserve this to happen to her, but I have to wonder if the situation could have been avoided had she insisted on meeting both parents prior to agreeing to carry for them.

And if you follow the news, you probably already know about an unfortunate surrogacy case currently happening in California, where a gestational carrier is pregnant with triplets for a single father. He wanted to reduce the pregnancy, which she refused to do, and now it’s in question whether he wants any of the babies  at all (though they’re all his).

a face-to-face meeting is a required component of the matching process. We are, after all, human beings with emotions and body language and senses and intuition

As it turns out, she agreed to carry for him and became pregnant with his children without ever meeting him, or ever speaking with him for that matter (he is deaf, but still, there are mechanisms for people who are hearing impaired to communicate by phone, and of course there’s email).

by Susan Fuller – March 11, 2016 Surrogacy by Design

Click here to read the entire article.

In America: ‘Gary and Tony Have a Baby’

In America: Gary and Tony Have a Baby aired on CNN five years ago.  It is hard to imagine that so much time has passed, and I am honored that the story of my family was shared with so many people.

 

The documentary represents the face of my new initiative, In America with Soledad O’Brien. The idea is to do in-depth stories about communities whose voices often get lost in the cacophony of daily newsgathering. The concept was born with Black in America about 2 years ago as a 2 day, 4-hour documentary surveying the black community. We had trouble representing everyone because the community was so vast. So we are now on Black in America 3. With “In America: Gary and Tony Have a Baby,” we are trying out a new concept. That documentary is a one-hour tightly focused look at the journey of two people, a way for viewers to watch a human drama unfold organically rather than experience communities as issues or topics of debate. It is part of a larger Gay in America initiative that includes stories about black lesbians marrying in their Washington church, gay teens in Mississippi trying to stem violence in their schools and Atlanta gay families talking about how they had their children.

Tony, and his partner, Gary Spino, would sound very much like any couple if it wasn’t for the obstacles they face. They have spent a small fortune on lawyers and social workers and doctors trying to make their family. Their son is the product of Gary’s sperm and an egg donated by a woman they met through an agency. A surrogate carried the baby. They went to court to do a second-parent adoption which makes Tony the legal second parent of Gary’s biological son. Since they are two men, they cannot get married in the U.S. So they now both have a legal relationship to their son but no relationship to each other in the eyes of the federal government. This is the face of Gay in America today.

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Anthony & Family

Tony and I are in LA to do a premiere screening of the documentary. The Gay Lesbian Alliance Against Defamation (GLAAD) has gathered about a hundred members of its community to see what we’ve produced. The discussion moves quickly past the story of these two men, which is exactly what we want. Jarrett Barrios, GLAAD’s director, talks about how he came out many years ago, fought for and won the right to have a state marriage in Massachusetts where he lives. He thought he’d made his world a more welcoming place. What he didn’t count on was that his adopted teenage sons would have to fight the same battle all over again, even though they are not gay. One of his sons recently started dating but didn’t want to bring his girlfriend home to meet his fathers. He realized that his son had to come out just like he had. He had the discomfort of revealing he has gay parents.

 

New Jersey Court Awards Three Parent Custody to Family

In a first-impression ruling breaking new ground for New Jersey, Superior Court Judge Stephanie M. Wauters created three parent custody in her ruling in D.G. & S.H. v. K.S., 2016 WL 482622, 2015 N.J. Super. LEXIS 218 (N.J. Super. Ct., Ocean County, Aug. 24, 2015, approved for publication, Feb. 5, 2016), stating that a child’s birth parents, a gay man and a straight woman who conceived the child through assisted reproductive technology, should share joint legal custody together with the father’s same-sex spouse, who was found by the court to be a psychological parent of the child.

In the same ruling, Judge Wauters held that the mother could not relocate with the child to the west coast in order to live with her boyfriend, as the child would be adversely affected by the impact of such a move on her relationship with her fathers. However, Wauters ruled, while treating the biological father’s husband as a joint residential custodian parent, she could not declare him a legal parent of the child, since New Jersey’s law on parentage adheres to the traditional paths to that status of genetic contribution, gestation or adoption, and none of those methods of attaining parental status were presented in this case.

lgbt family law

The child, identified in the opinion as O.S.H., was born in 2009. D.G. is her biological father, and K.S. is the biological mother. S.H. is D.G.’s husband. The much-simplified story of the case is that D.G., S.H. and K.S. began in the fall of 2006 to discuss the possibility of conceiving a child together and raising the child with a tri-partite parenting arrangement. They decided to use D.G.’s sperm because he and K.S. had been long-time friends. They decided not to use a doctor’s assistance, instead following directions in a book on the “Baster Method,” by which they accomplished insemination at home, although K.S.’s first pregnancy ended in a miscarriage. After O.S.H. was born, D.G, S.H. and K.S. shared parenting responsibilities. The child mainly lived with her mother with frequent visitation with the fathers. D.G. operated a business (with flexible hours) at the Jersey Shore, and S.H. was employed as a New York City high school teacher. K.S. worked in a New Jersey restaurant owned by her parents. The men shared an apartment in Manhattan as their primary residence. The parents spent most of the summer after O.S.H. was born in a small house in Point Pleasant Beach owned by K.S., and at the end of the summer the men decided to rent their own home in Point Pleasant Beach for ease in shared parenting of the child. Parenting time fluctuated depending on the work commitments of the various parents. K.S. owned a home in Costa Rica where she would spend part of the winters with the child, and where the men occasionally visited. After Superstorm Sandy in October 2012 damaged the New Jersey coastal homes, the child spent more time with her fathers in New York City.

By Art Leonard, March 7, 2016 – Le-Gal.org

Click here to read the entire article.

Supreme Court Restores Visitation Rights to Lesbian Adoptive Mother

WASHINGTON — In a pair of unsigned opinions, the Supreme Court on Monday restored the rights of a lesbian adoptive mother who had split with her partner and reversed a murder conviction tainted by prosecutorial misconduct.

 

The adoption ruling reversed one by the Alabama Supreme Court, which had refused to recognize the woman’s adoptions of three children, which had been granted by a Georgia court in 2007.

The woman, identified in court papers as V.L., said she was overjoyed.

“I have been my children’s mother in every way for their whole lives,” she said in a statement. “I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on.”

The United States Supreme Court’s opinion, which was unsigned and had no noted dissents, said the Alabama court had violated the Constitution’s “full faith and credit” clause. “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits,” the opinion said.

Supreme Court

The two women in the case, V.L. v. E.L., No. 15-648, were in a committed relationship that started in 1995 and lasted about 17 years. They shared a last name.

One of them, identified in court papers as E.L., gave birth to a child in 2002 and to twins in 2004, both times by insemination from an anonymous donor. They raised the children together in Alabama until they broke up in 2011, and the adoptive mother, V.L., continued to see the children for a time afterward.

When a dispute about the visits arose, V.L. turned to an Alabama court, which granted her visitation rights based on the Georgia adoption judgment. The Alabama Supreme Court reversed that, saying in an unsigned opinion that the Georgia judgment was not entitled to the “full faith and credit” ordinarily required by the Constitution “to the public acts, records and judicial proceedings of every other state.”

The Alabama Supreme Court reasoned that the Georgia court had misunderstood Georgia law in allowing the adoption, saying that “Georgia law makes no provision for a nonspouse to adopt a child without first terminating the parental rights of the current parents.”

by Adam Liptak – New York Times, March 7, 2016

Click here to read the entire article.

 

China bans depictions of gay people on television

Content that ‘exaggerates dark side of society’ is banned from TV in China – from homosexuality to adultery, showing cleavage and even reincarnation.

 

The Chinese government has banned all depictions of gay people on television, as part of a cultural crackdown on “vulgar, immoral and unhealthy content”.

Chinese censors have released new regulations for content that “exaggerates the dark side of society” and now deem homosexuality, extramarital affairs, one night stands and underage relationships as illegal on screen.

Last week the Chinese government pulled a popular drama, Addicted, from being streamed on Chinese websites as it follows two men in gay relationships, causing uproar among the show’s millions of viewers.

Chinese surrogacy

The government said the show contravened the new guidelines, which state that “No television drama shall show abnormal sexual relationships and behaviors, such as incest, same-sex relationships, sexual perversion, sexual assault, sexual abuse, sexual violence, and so on.”

The ban also extends to smoking, drinking, adultery, sexually suggestive clothing, even reincarnation. China’s State Administration of Press, Publication, Radio, Film and Television told television producers it would constantly monitor TV channels to ensure the new rules were strictly adhered to.

The clampdown follows an increase in cultural censorship in China since Xi Jinping came to power in November 2012. In December 2014, censors stopped a TV show, The Empress of China, from being broadcast because the actors showed too much cleavage. The show only returned to screens once the breasts had been blurred out.

In September 2015, a documentary about young gay Chinese called Mama Rainbow was taken down from all Chinese websites.

The Guardian, March 4, 2016

Click here to read the entire article.

Gay Family Planning: Options For Your Family

For thousands of New York couples each year gay family planning is a daunting and intricate process. If you are part of a same sex couple, there are extra complications as you must decide what route to go down in order to have or adopt a child.

Gay family planning options include adoption, a surrogate NYC carrier, pregnancy by donated sperm, or IVF. Here we cover the basics for each of these options to help you consider the right option for your family:

 

Adoption

There are over 130 adoption agencies in New York State, and each of the 58 social services unit districts has an adoption unit. There are no fees for adopting children who have special needs or are in custody of the local social services commissioner, although there may be fees for adopting those children in the legal guardianship of local voluntary agencies. The fees are based on the adoptive family’s income, however, and help may be available in the form of grants or fee waivers, so don’t let finances put you off from looking into this as an option to start your family.

gay adoption

After deciding on an agency, the application forms must be completed. Information is taken about your current family, your background and the type of child you feel you would be able to give the best life to. Criminal history checks will also be made, with particular attention paid to whether someone in the prospective adoptive family’s home has previous mistreated or neglected a child. A criminal record does not necessarily mean that you will be refused for adoption, as it depends on several factors including the type of crime committed.

Within four months of submitting the application, a home study is started and carried out on the prospective adoptive family. This is a series of meetings, training sessions and interviews that enables the family and social services to ascertain the readiness of the family to adopt, and any issues that they may need help with. After the home study has been completed the caseworker writes a summary about the family, which the adoptive couple can also add comments to. Training is also required to cover some areas that are specific to adoptive parenting, such as the needs of foster children and what kind of child they would be most suited to as a parent.

Once the study and summary are complete, the work then begins to match the family with a child. There is no set process for this as it is individual according to the child’s situation and needs. The Family Adoption Registry provides information about waiting children, and adoptive parents can ask for more information about children they are interested in, in exchange for a copy of the home study. The process goes from there and hopefully ends with a child or children finding a loving home with their new parents!

Pregnancy via sperm donor

Lesbian couples have many options in their own gay family planning. Sperm donors may be someone known to the couple or, alternatively, screened samples from a sperm bank. Donors can be anonymous or known, and even with anonymous donors there is usually information available about the donor’s height, hair colour, eye colour, education level and nationality. Ensuring that you use an approved fertility clinic is essential in order to avoid potential diseases that can be transferred through sperm. If you are using a known donor, insist on having him medically pre-screened before insemination and it is a very good idea to consult with an attorney familiar with known sperm donation.

Traditional Surrogate

gay surrogacy

Traditional surrogacy involves the sperm of the intended ‘adoptive’ parent fertilizing the egg of the traditional surrogate, so the child will be biologically related to both parties. Surrogacy contracts in NYC are not legally binding as they are declared ‘contrary to public policy’. This means that you cannot pay someone to carry a baby for you, or create a contract that mandates that the traditional surrogate mother has to give the child to the intended parents, (IPs) upon delivery. Surrogates, whether traditional or gestational, cannot accept money apart from expenses and medical fees directly related to the pregnancy, and heavy fines are levied for anyone involved in a surrogacy agreement – $500 for those involved and up to $10,000 for anyone found to be arranging such contracts (which are void and unenforceable in NYC).

Despite this, surrogacy has continued to be a pathway to family life that many gay male couples choose to take, and there are agencies that help to match potential parents with potential surrogates who live in other, surrogacy-friendly States. When needed, New Yorkers are able to complete second or step parent adoptions in New York to finalize parental rights for a child that has been delivered through a surrogate from another State.

Gestational Surrogate

The difference between gestational and traditional surrogacy is that the baby resulting from gestational surrogacy is not related to the surrogate mother. An egg and sperm create an embryo which is then transferred to the surrogate via IVF. For a male same sex couple, both partners can contribute sperm so that each have an equal chance of being biologically related to the child; they would also need a female third party to donate the egg.

Having the options of different pathways for gay family planning (adoption, surrogacy or pregnancy via donor sperm) can be reassuring to a couple looking to have children, but it can also be overwhelming when trying to decide what is best for you. For a reputable and trustworthy attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to Brown@awclawyer.com.

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