Best Interests of the Child – Evolving Family Law

Best Interests of the Child – In this next installment of the Columbia Teachers College series on professionals working within the LGBT community, I have the privilege of discussing dome of the recent case law that affects our families and we, as professionals, can better educate the circles in which we work.

 Family courts focus appropriately on the best interests of the child when attempting to determine such issues as custody and visitation in disputed matters.  This essential premise should inform their decision making processes.best interests of the child

Columbia Teachers College has created a series of videos for students who want to work with the LGBT community. I am privileged to have been featured as a mentor and to be able to tell my story. This video discusses the current law in New York, recent changes that have had an immeasurable impact on LGBT families and how the best interests of the child are paramount to a court’s adjudication of an issue.

There is no written “standard” for a best interests analysis. A judge will rely on several factors including,  familial stability, mental and physical health of the parents, drug or alcohol abuse, primary caretaker role, the ability of the parents to get along with one another and, depending on the child’s age, what the child believes is in their best interest.  The health and safety of the child are always the utmost consideration.  

I hope that you enjoy watching this video and, if you have any questions, do not hesitate to reach out to me through the contact form below.

timeforfamilies.com

 

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What Donor Conceived People Think of Donor Conception

The number of donor conceived children (donor sperm, donor egg, and donor embryo) is expanding.

In many ways it feels that we are standing on a precipice. We have such an opportunity in front of us to avoid some of the mistakes made in the past with both sperm donation and adoption, and yet I fear we are not learning.  Donor conceived children may have the answer.

The real experts on the best way to raise a child conceived by donor sperm, egg, or embryo are the adults that were conceived by donor conception way back in the day (or not so way back). I recently read the results of a fascinating survey of 82 donor conceived adults on We Are Donor Conceived.IVF

The people who responded to the survey were from around the world, mostly female (84%), raised by heterosexual parents (82%), and conceived by donor sperm (81 out of 82). They were born between 1954 and 2000, with 42% being born in the 1980s.

Donors and Donor Siblings are Important

According to We are Donor Conceived, 65% of respondents agree with the statement “My donor is half of who I am”. 94% indicated they often wonder what personality traits, skills, and/or physical similarities they share with their donor. 96% of respondents said they would like to know how many donor siblings they have, and a strong majority indicated they are open to forming a relationship with their donor (87%) or donor siblings (96%).

Eighty-six percent of the respondents thought that anonymous donation should not be allowed.

When Did They Find Out They Were Donor Conceived

The results on when they found out they were conceived by donor surprised me because I assumed that more of them would have found out later in life. The survey, however, found that 61% were five years or younger when they found out.

by Dawn Davenport, August 24, 2017 – Creatingafamily.org

Click here to read the entire article.

Second Parent Adoption Necessity: Securing Parentage in Uncertain Times

Second parent adoption necessity has become the primary topic of discussion for me both at work and in my private life. 

Is there a second parent adoption necessity?  Everyone wants to know whether their family is safe.  Since January 2017, I have received more calls from parents who have not gone through the second parent adoption process for whatever reason and are now concerned that their children may be the ones who suffer from the lack of clear and incontrovertible parentage; a parentage that second parent adoption provides.

Why do I have to adopt my own child?  Many gay and lesbian parents are asking this question when attempting to understand the second parent adoption necessity.  In New York, married lesbian couples who have used anonymous sperm donors are allowed to be listed as a parent on their child’s birth certificate.  Gay couples who have children with the help of a surrogate mother may have petitioned for and received a pre or post-birth order declaring them the legal parents of their children.  They may also be on their children’s birth certificate.  So why is second parent adoption a necessity?second parent adoption necessity

The answer to this question is perhaps the most confounding that I have had to provide clients and friends.  If you can guarantee that your relationship will never end in divorce or dissolution and that, if it does, both individuals will prioritize the best interests of the child first and foremost, then perhaps you can get by without a second parent adoption.  But the reality of a relationship ending is never certain and, unfortunately, the non-genetically related parent is vulnerable to what may be costly and emotionally terrifying consequences.  While the few cases we have seen that have addressed the issue of the validity of a pre or post-birth order have ultimately upheld those orders, those cases cost the litigants tens or hundreds of thousands of dollars.  This is because every jurisdiction has different laws around parentage, some more friendly than others.

With a second parent adoption, there is no question about the parentage rights of a non-genetically related parent.  Even with recent New York case law protecting non-adoptive lesbian parents, there remains questions about what rights other than the standing to sue for custody and visitation exist without adoption.  Federal social security benefits attach to “natural or adopted” children.  Inheritance rights attach to “natural or adopted” children.  Without adoption, future clarification will be needed to accurately assess when parentage exists.

Assisted Reproductive Technology and Gay Families – Sometimes it feels  like we are all just waiting for the law to catch up to how gay and lesbian couples have their families.  One recent decision from Brooklyn, Kings County Family Court to be precise, describes this issue masterfully and concludes that second parent adoption is the one way to ensure that couples are protected as state courts and legislatures grapple with assisted reproductive technology (ART) issues.

While the court in this decision confirms that a parental relationship exists in most cases with or without the adoption, it also holds that married gay and lesbian couples are entitled to second parent adoptions to expel any doubt about parentage and to protect families, particularly when they travel throughout the country and around the world.  The good news is that in many states, New York included, a marriage is not a prerequisite for a second parent adoption.

Whether you are a lesbian couple with a known donor or an anonymous donor, or whether you are a gay couple with a surrogate mother and a pre or post-birth order, the second parent adoption necessity is very real.  Second parent adoption is the right choice to make to protect your family from any future uncertainties.

For more information, email me at Anthony@timeforfamilies.com or visit www.timeforfamilies.com for more information.

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Do kids think of sperm donors as family?

How do we define a parent — or a family?

Bioethicist Veerle Provoost explores these questions in the context of non-traditional families, ones brought together by adoption, second marriages, surrogate mothers and sperm donations. In this talk, she shares stories of how parents and children create their own family narratives.veerle-p

Click here to watch the Ted Talk.

New standards will tighten rules governing sperm and egg banks in Canada

Rigorous screening requirements would apply to those who donate sperm and eggs within Canada as well as abroad, when intended for export to Canada.

 

Sperm and egg banks will be required to review donors’ medical records and conduct more genetic testing under proposed new Canadian standards for assisted reproduction, which will be unveiled within two weeks, the Star has learned.

Developed by the Canadian Standards Association at the request of Health Canada, the new draft standards are intended to bring the country’s woefully outdated regulatory framework around assisted reproduction into the 21st century, says Dr. Arthur Leader, chair of a CSA subcommittee on assisted reproduction.Human Sperm Cell

Rigorous screening requirements would apply to those who donate sperm and eggs within Canada as well as abroad, when intended for export to Canada. Most donated sperm and eggs used in Canada comes from abroad.

Had these improvements already been in place, it’s unlikely the sperm of a U.S. man who turned out to have been diagnosed with a number of serious mental illnesses, including schizophrenia, would have made its way across the border, Leader says.

“If there had been a validated medical record, they would have caught this case,” he said.

Chris Aggeles had been advertised by Georgia-based sperm bank Xytex Corp. as exceptionally healthy, based on a medical history questionnaire he had filled out. His sperm was subsequently used in the creation of at least 36 children in Canada, the United States and Britain.

But the truth about his health was revealed only after Xytex mistakenly released his name to some mothers in an email. Until then, he had been anonymous.

Angie Collins, a Port Hope, Ont., woman who is mother to a nine-year-old boy created from Aggeles’ sperm, is thrilled about the proposed changes, particularly the requirement for sperm banks to check donors’ medical questionnaire against their health records.

Collins is one of a number of mothers who is suing Xytex.

“Until now, the honour system has been the relied-upon method and it is clearly ineffective. This would help to prevent situations like ours from arising. Parents would not have to spend years wondering if their child will or will not inherit the donor’s known debilitating mental health conditions,” she said.

The CSA’s new draft standards are intended to underpin improvements to the regulatory framework of assisted human reproduction legislation. They are being released for public commentary.

“Suggestions are most welcome because we want the best standards in the world. The hope is that Health Canada will reference these standards in their entirely in their regulations,” Leader said.

The news of the pending release of the draft standards comes a week after Health Canada announced plans to strengthen and clarify the regulations in the Assisted Human Reproduction Act.

Canada’s current semen regulations are focused primarily around screening donor sperm for sexually transmitted infections such as HIV, Hepatitis B and C and gonorrhea.

There exist no regulations for donor eggs or donor embryos.

TheStar.com by Theresa Boyle – 10/7/2016

Click here to read the entire article.

New York’s Changing Family Law

New York’s changing family law finally appears to be catching up to the realities of LGBT families, at least incrementally.

A series of decisions from various New York courts is informing New York’s changing family law in ways never before imagined. Currently, in Manhattan, a court is struggling with how best to protect a child born in Ethiopia, which would only allow a single mother to adopt, now that his lesbian parents have split up.  Another recent decision out of the Kings County Family Court is one of the first to acknowledge the complexities of how we create our families, and offers sage advice as to how best we can protect them.

New York's changing family law

This new line of cases comes hot on the heels of the New York Court of Appeals case known as The Matter of Brooke S.B., which I have written about extensively.  Up until this decision, many lesbian parents who had not adopted the biological children of their partners or spouses were considered legal strangers to the children that they had raised since birth.  They were blocked by the court from seeking custody and visitation when their relationships faltered.  The Matter of Brooke S.B brings New York’s changing family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

The court in Brooke S.B. was careful not to expand the definition of parentage beyond the facts of each specific case, which means that we will be seeing more and more litigation attempting to address situations that do not fall squarely in the fact pattern of Brooke S.B., like the current case in Manhattan.

In a move to address confusion created by a 2013 decision from Kings County Surrogates Court, where Judge Margarita Lopez Torres denied a lesbian couple a step parent adoption because she held that a marital presumption of parentage existed when a  child is born to a married couple, Brooklyn Family Court has offered its opinion.  New York’s Appellate division, Second Department held the opposite of Lopez Torres (Paczkowski v. Paczkowski, — N.Y.S.3d —- (2015)), creating much confusion for the LGBT community.  Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), then second parent adoptions are the best way to secure those families from this uncertainty.

The bottom line of New York’s changing family law is that with each new case that tests the limits of the court’s definition of family, hundreds of thousands, if not millions, of dollars will be spent to “make new law,” when there already exists a remedy that is affordable and is respected across the country and around the world, second and step parent adoption.  The process may be time consuming but the benefit is priceless and I believe that JHO Ross understood this and made New York’s changing family law easier for us all to grasp.

For more information, contact Anthony@timeforfamilies.com.

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NY Family Court – “children’s best interests are served through second parent adoptions”

“So long as uncertainty persists in this country and abroad about the status of children conceived by same-sex couples using assisted reproduction, children’s best interests are served through second parent adoptions confirming what already should be crystal clear everywhere: the legal parental status of the second non-biological parent.”

(New York, October 12, 2016) — A New York family court issued a decision last week affirming that married lesbian couples continue to be entitled to second parent adoptions to give added security to their children, who already are entitled to have both spouses recognized as their parents. The court’s decision came after Lambda Legal and its co-counsel submitted a legal memo last month on behalf of four couples, all from Brooklyn, who had sought adoptions to safeguard their children. The Court’s decision also confirms that children born to married same-sex spouses in the state have two legal parents, with or without adoptions and regardless of genetics.gay fathers

“The Court ruling is very clear that children born to married same-sex couples already have two legal parents,” said Susan Sommer, National Director of Constitutional Litigation at Lambda Legal. “But so long as uncertainty persists in this country and abroad about the status of children conceived by same-sex couples using assisted reproduction, children’s best interests are served through second parent adoptions confirming what already should be crystal clear everywhere: the legal parental status of the second non-biological parent. Children have a right to both of their parents, and taking a ‘belt and suspenders’ approach is the best way to secure that right. As this decision confirms, the courts have the authority and responsibility to issue second parent adoptions for children in these families.”

Lambda Legal filed the memo on behalf of four married lesbian couples who had petitioned the family court for second parent adoptions of children they conceived using assisted reproductive technology. Each of these couples planned for and intend to raise their children together, even though only one of the two parents is genetically related to her child. As the legal parents of the children, they are entitled to all the rights and responsibilities that come with being a parent in New York and anywhere they may travel with their children. But because the laws that define parenthood vary from state to state, these couples sought the added security of adoption decrees to confirm the parent-child bond for the non-biological parent.

The Supreme Court’s ruling in Obergefell affirmed that same-sex couples and their children across the country are entitled to all the protections that come through marriage, but some states, like North Carolina<http://www.lambdalegal.org/in-court/cases/nc_weiss-v-braer> and South Carolina, where Lambda Legal is litigating, have resisted giving full recognition to those rights. And disparities persist around the nation in laws about assisted reproduction, making parents wise to seek the extra security of second parent adoptions.

The Court’s decision confirmed that married same-sex spouses using assisted reproduction are both the legal parents of their children, with or without adoptions, and that genetics and adoption aren’t the determinants of parentage. The Court also acknowledged the lingering uncertainties and resistance to parenting rights for same-sex couples in the U.S. and abroad, and thus the importance of access to second parent adoptions for these families. Finally, the decision confirmed the courts’ ongoing authority to grant adoptions to spouses who already are the legal parents of their children under New York’s marital presumption of parentage.

Lambda Legal was joined on the memorandum of law by the following co-counsel, who represented the families in their adoption proceedings:  Teresa D. Calabrese; Rebecca L. Mendel of Rosin Steinhagen Mendel; Melissa B. Brisman and Nancy M. Hartzband of Melissa B. Brisman, Esq., LLC; and Andy Izenson of Diana Adams Law & Mediation, PLLC.

Read the memo. http://www.lambdalegal.org/in-court/legal-docs/ny_20161012_memorandum-law-judicial-authority

Read the decision. http://www.lambdalegal.org/in-court/legal-docs/ny_20161012_matter-of-l

Ethical Surrogacy – Making the Right Choices

Ethical surrogacy is, and must be, the goal of an intended parent (IP) who is looking to have a family with the assistance of a surrogate mother.

Because of the different parties involved and the roles that they play, there must be a guiding, ethical roadmap for intended parents to follow to ensure that everyone has a successful and positive experience, an ethical surrogacy. Up until very recently, no such roadmap existed for intended parents.  Doctors have such guidelines in the ASRM (American Society of Reproductive Medicine) Recommendations for Practices Utilizing Gestational Carriers.  Attorneys also have such guidance in numerous articles and section committees dedicated to issues surrounding surrogacy.

Respect Ethics Honest Integrity Signpost Meaning Good Qualities

Now there is a place where intended parents can go to review best practices and baseline protocols for ethical surrogacy, ensuring that each IP has the tools to create an ethical journey. Men Having Babies (MHB), a non-profit organization of which I am the board chairperson, recently introduced A Framework for Ethical Surrogacy for Intended Parents, available online in English, French, German, Spanish, Italian and Hebrew.  This comprehensive document is supported by several LGBT organizations in America and abroad.

What is Ethical Surrogacy?

MHB’s ethical surrogacy framework revolves around the notion that surrogacy can be a wonderful and fulfilling experience for all parties involved, even if the surrogate is compensated for her efforts, risk and inconvenience. While compensation is part of the process, the act itself is not commercial because the IPs are not buying anything, particularly a child, which is a claim made by some anti-surrogacy activists.  A surrogate efforts should be compensated, even if the journey does not result in a pregnancy or in the case of a miscarriage.

How can Ethical Surrogacy be Achieved?

Regulation is the key to achieving ethical surrogacy. Having laws in place that require independent representation for all parties ( in their home languages), ensuring that all parties are vetted medically and psychologically, limiting compensation so as not to create irresistible incentives for participation and making surrogacy legal in each state and in each country so IPs and surrogate mothers do not have extraordinary distances between them, all work together to create an ethical surrogacy environment.

Reasonable and appropriate legislation should be enacted to allow perspective parents, donors and surrogates enter into legally enforceable agreements for surrogacy arrangements without having to cross state lines or country borders. This fosters more successful and fulfilling relationships between surrogate mothers and IPs.  Steps must also be taken to limit any medical risks that donors and surrogates face in the surrogacy process.

Baseline Protocols for Providers

Several baseline protocols should be implemented by service providers to ensure an ethical surrogacy experience including, but not limited to: informed consent from all parties, medical screening, social and psychological screening, independent legal representation (with language interpretation is required) before any treatments begin, medical insurance review from the surrogate mother and an agreement regarding contact during and after the surrogacy journey.

Best Practices

Best practices are suggestions for “above and beyond” thinking that is required of IPs because so much of the integrity of the journey depends on them. Among these suggestions is the creation of a long term vision about your family.  Who will be the biological parent?  How many journeys do you anticipate? What will the relationships be during and after the surrogacy?  How will you explain your family make-up to your child?  These questions are just a few of those that need to be asked and answered in the surrogacy process.

Above all, the autonomy of your surrogate mother must be respected and supported. While it may be your child that she is carrying, it is her pregnancy.  Insuring that she knows that you, as IPs, understand this distinction is critical to supporting her autonomy.  Her family and community will also play a role in her pregnancy, so getting to know her circle of support is a wonderful way of bolstering that support, making the journey a happy and healthy one for your surrogate mother.

While the MHB Framework for Ethical Surrogacy for Intended Parents goes deeper into the specifics of making your journey an ethical one, this article is designed to begin a conversation about the quality and success of your surrogacy journey.  After all, your family is worth it!  For more information, go to timeforfamilies.com or email Anthony at Anthony@timeforfamilies.com.

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New York Family Law, Matter of Brooke S.B.

Late August 2016 marked a turning point for New York family law and how it defines parents, particularly lesbian parents.

What the court decided – Up until this decision, many lesbian parents who had not adopted the biological children or their partners or spouses were considered legal strangers to the children that many of them had raised since birth.  Under previous New York family law, these non-biological and non-adoptive parents could not seek the legal system’s assistance in gaining custody, or even visitation, to the children who they helped to raise.

All that changed last month with a court case known as In the Matter of Brooke S.B. v. Elizabeth A.  C.C.  In this landmark decision, the court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  This brings New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.remarkable parenting

What this decision does not address? – The court was careful to base its decision on the specific facts of this case, which included one very important element: the fact that the couple agreed in advance to the conception of the child.  What this means is that if a lesbian couple has children but the non-biological or non-adoptive parent entered the picture after the conception of the child, then she would not fall under the definition of a “de facto” parent as stated in this case.  Also, if the non-biological, non-adoptive parent did not consent to the conception of the child by clear and convincing evidence, she would be forestalled from seeking custody or visitation.

It is also critical to note that the court did not explicitly state that the non-biological, non-adoption mother was a legal parent of a child born to her spouse or partner for all purposes, just that she could seek custody and visitation if she had consented to the conception.  This case also did not explicitly address the notion of the marital presumption of parentage, which a mid-level appellate court has held not to apply to same-sex couples.  This concept holds that the spouse of a married woman is automatically considered the legal parent of any child she gives birth to.

Does this mean I do not have to adopt my partner or spouse’s child? – I do not believe that the court meant for this decision to be a substitute for second or step adoption.  Adoption is the one clear pathway to legal parentage and parentage includes much more that custody and visitation.  Adoption also ensures that a parent’s relationship to their child would be respected across the country and around the world.

For instance, if you are the non-biological, non-adoptive parent and you have a better health care plan at work, this decision would not mandate that an employer must put the child on your health insurance. Second or step parent adoption would, however, ensure that that the child would be protected in this situation.

Brooke S.B. was also silent on whether a legal relationship between a non-biological or non-adoptive mother would be recognized for the purposes of estate administration. This means if a legal parent dies without a Will, their children automatically share in that parent’s estate if they are married, or inherit the estate completely if the decedent spouse is not married.  Finally, the legal and emotional statement of securing your family through adoption resonates beyond just the family unit.  It establishes your family in the community, in your child’s educational institutions and, most importantly, in the eyes of the children with whom you are creating a legal family.

Brooke S.B. also fails to address how gay men can protect their families through surrogacy.  Adoption is still the best way in New York to create legal families established through surrogacy.

Brooke S.B. will undoubtedly protect many families from the horror of being torn apart because one parent was not recognized as a real parent. For that, New York family laws will be better and stronger for all families.  But this decision is not all-encompassing and when it comes to the protection of your family, the establishment of comprehensive legal parentage by a non-biological parent is the ultimate goal.  To accomplish that, a second or step-parent adoption is essential.

For more information about New York family law and the ramifications of the Brooke S.B. decision, contact Anthony Brown at Anthony@timeforfamilies.com or visit www.timeforfamilies.com today.

Considering Known Sperm Donors

Lesbian couples are choosing known sperm donors in increasing numbers for a variety of very important reasons. Your choice now can make a big difference in your child’s life.

Known sperm donors are a much more viable option for lesbian couples today than they have ever been.  What greater decision can there be than the biological parent of your child? Choosing an anonymous sperm donor used to be the norm.  There are many reasons why known sperm donors are becoming the preference for lesbian couples and this article explores some of the most important ones.

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child.remarkable parenting

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Known sperm donors in many states, New York included, must surrender their parental rights to a child born with their genetic material after the birth of that child.  And if the mother is a single parent by choice, the known donor in many states may not surrender their parental rights at all.

In New York, as in most states, the best interest of a child is considered when allowing a genetic parent surrender their parental rights. If a known donor is surrendering his parental rights to the spouse or partner of the mother, then the court will authorize that surrender.  If, however, there is no other parent who will be assuming parental rights, the known donor cannot surrender their parental rights and will be able to sue for custody and visitation.  The mother will also be able to sue that known donor for child support.  This is the most important reason why single mothers by choice should use an anonymous donor.

One reason why lesbian moms are choosing known sperm donors is for the emotional health of their children later in life. Many studies show that the more a child knows about their biological background, be they adopted, a child through surrogacy or through known or anonymous sperm donation, the better adjusted they are as adults.  These same studies also show high satisfaction levels in the mothers who have chosen known sperm donors.

One other consideration in choosing a known sperm donor is where they live. If you envision a known donor as a parental figure in your child’s life with a more active role, the donor must be geographically able to fill that role.

Finally, many mothers choose between known and anonymous donors because of the degree of control they wish to have over their family formation. Choosing a known donor can be tricky and many mothers prefer to maintain the kind of parental control over their family that can only be experienced with an anonymous donor.

Whether you are considering known sperm donors to help you create your family or whether anonymous donors are right for you, the most important part of this decision is that you and your spouse or partner are comfortable with it and on the same page. For more information about known sperm donation and the legalities surrounding our families, contact Anthony@timeforfamilies.com or visit www.timeforfamilies.com today.

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