The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

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), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest 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.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought 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.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at anthony@timeforfamilies.com or visit www.timeforfamilies.com.

Contact Time For Families

Contact Form
* indicates required field

In Gay Rights Case, Woman to Appeal for Parental Rights to Ex-Partner’s Son

A Manhattan woman who went to court to prove that she should be considered a legal parent to a child adopted by her former same-sex partner is planning to appeal after losing her case last week.

“I have to keep going,” said Kelly Gunn, 52, of the West Village area of Manhattan. “I’m going to do everything I can to protect him and protect my relationship as parent.”

Ms. Gunn went to court last September to prevent her former partner, Circe Hamilton, 45, from moving to her native London with Abush, the 7-year-old whom Ms. Hamilton had adopted from Ethiopia in 2011.

Ms. Gunn and Ms. Hamilton were a couple when they began planning for the adoption, but they separated in 2010 before Abush had been identified by the adoption agency. In court, Ms. Gunn argued that because the adoption plan had been created when they were together, and because she had provided support and care once the boy arrived, she merited the legal status of parent. Ms. Hamilton argued that their adoption plan had ended with their separation and said that the role Ms. Gunn had played in the boy’s life was akin to that of a godmother or a close friend.

Circe Hamilton

Ms. Gunn’s arguments were made possible because of a newly expanded definition of parenthood in New York. Bringing custody law up to date with the realities of same-sex and other nontraditional parenting arrangements, the State Court of Appeals ruled in August that a caretaker who is not related to, or the adoptive guardian of, a child could still seek custody and visitation rights.

The landmark ruling in that 2016 case, known as Brooke S. B., was written by Judge Sheila Abdus-Salaam, the first African-American woman on the court, who last week was found dead in the Hudson River.

Increasing numbers of children were being deprived of access to a loving de facto parent, Judge Abdus-Salaam wrote, simply because that parent did not appear on an adoption paper or have a biological tie. The ruling created a new legal test.

“Where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the nonbiological, nonadoptive partner has standing to seek visitation and custody,” she wrote.

In one of the first applications of that ruling, Judge Frank P. Nervo concluded in his April 11 decision that Ms. Gunn had failed to prove that her role in Abush’s life rose to the level of parent. Citing her emails to Ms. Hamilton, he said that Ms. Gunn “herself acknowledged repeatedly that the plan to adopt a child with respondent died with their relationship.”

Nancy Chemtob, Ms. Gunn’s lawyer, has 20 days to seek a continued stay of the ruling before Ms. Hamilton can leave the country with Abush. “I believe that this decision doesn’t follow Brooke,” she said.

Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage. “That would be very scary to parents,” she said.

New York Times, by Sharon Ottoman, April 19, 2017

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.

Contact Time For Families

Contact Form
* indicates required field

The LGBT Trump Disconnect

The LGBT Trump disconnect is real and attention must be paid to what appears to be the beginning of a not so veiled assault on LGBT rights in America.

First, I must say that there is an LGBT Trump disconnect.  Since I wrote my first piece about LGBT family rights in the Trump presidency, a lot has changed.  I have heard from many people, and I myself wanted to believe, that Trump wouldn’t touch the LGBT gains that we have made during the Obama years.  But his actions have proven different.  His appointments, activity in state courts and the often unintelligible rhetoric we have become accustomed, all suggest that we may not be as safe as some thought we were.Trump

The Appointment Problem – My greatest fears about Trump’s appointments center around the Department of Justice (DOJ), and more specifically, around the civil rights division of the that agency.  First, the long and telling history of Jefferson Beauregard Sessions, the Republican Senator from Alabama who President Trump has tapped to lead the DOJ, is troubling for many more that just LGBT Americans.  According to The Washington Post, Jeff Sessions has claimed to be a civil rights champion, yet he has overstated his experience and, in some cases, lied altogether about his involvement.  Sessions has spent the majority of his career attempting to undermine LGBT equality, the details of which are numerous and troubling.

But the worst of this story is that President Trump has chosen John M. Gore to head the DOJ’s Civil Right s division.  Mr. Gore, prior to this nomination, was in the process of defending North Carolina’s odious trans-bathroom bill.  Prior to that, he defended Republican efforts to gerrymander congressional districts in violation of the civil rights of minority Americans.       This is not only putting the fox in charge of the hen house, but the hens in this analogy are real people who have had their civil rights violated in what should be the most fundamental right this country possesses – the right to vote.  How can they now trust that their best interests will be defended by a person who, up to now, has made a career out of challenging these fundamental rights?

The Visibility Problem – One of the first signs that there might be a distance between Trump’s “accepting” rhetoric toward the LGBT community during the campaign and what he plans to do as president appeared, or rather disappeared, within the first hour after he was sworn in.  The official White House website, www.whitehouse.gov, removed the LGBT rights page which had been there throughout Obama’s last term, and before.  No explanation was given, however, the pro-Trump Twittersphere rejoiced.LGBT Trump

In an equally expedient manner, all data regarding climate change was removed as well from the whitehouse.gov site.  As most LGBT Americans are not one issue voters, this deletion concerned me as much as the LGBT page being removed.  “Out of sight, out of mind,” seems to be the rule of law now.

The Marriage Issue – I referred earlier to things having changed since I wrote LGBT Family Rights in a Trump Presidency.  At that time, the Supreme Court of Texas had declined to re-hear a case which would abolish benefits that the City of Houston provides to same-sex married couples. Literally on Trump’s inauguration day, the Supreme Court of Texas changed its mind, under GOP pressure.  The Republican Governor of Texas himself wrote a brief to the court asking them to reconsider, essentially arguing that the Obergefell Supreme Court marriage decision does not apply to Texas.  In that brief, the Governor wrote of the “Federal Tyranny” of the courts and that Obergefell does not require that same-sex married couples and different-sex married couples receive equal treatment under the law.

In my previous article, I was originally at a loss for identifying a case with a fact pattern that would make it to the Supreme Court which would have the effect of etching away at the Obergefell marriage decision.  This Texas case may be just that.  It would undoubtedly take time to make it to the Supreme Court, and who knows what its makeup will be then.  But the anti-marriage movement’s argument is in development and may take the same amount of time to get its legs.  The Arkansas Supreme Court issued a decision based on the above mentioned logic denying same-sex couples that right to be listed on their children’s birth certificates.  The issue is now before us and we cannot afford to stop paying attention.

After attending the Women’s March in Washington this last weekend, I left with a renewed sense of hope and possibility.  Hundreds of thousands of people made the impossible seem possible.  The greatest lesson that I took from my experience there was that no matter how generous I may have felt before in giving President Trump a chance to govern, I cannot forget, nor should any of us, that he won the election by dividing the country and making it clear that some people were simply not welcome.  Those are not “alternate facts.”  Those are the facts.  

This is the LGBT Trump disconnect.  I fear now that my beloved LGBT community has taken its place among women, black people, brown people, Muslim people and immigrant communities that were so vilified during the election and may have no voice in the Trump administration.  I hope that the LGBT Trump disconnect is a myth, but if past is prologue, we have no option other than to pay attention, remain engaged and share our feelings with everyone we can. 

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

 

Update – 1/30/2017 – As of Friday, January 27, 2017, the Trump administration has reacted to outrage regarding the removal of climate change information from the Environmental Protection Agency’s website by restoring that information on to the EPA website.  All LGBT information remains missing from the whitehouse.gov site.

 

Update – 2/23/2017 – As of Thursday, February 23, 2017, the Trump administration rescinded protections for transgendered students in public schools.

Contact Time For Families

Contact Form
* indicates required field

Fearing the Trump era, same-sex couples rush to adopt their own kids

As soon as the presidential election results were in, Megan Moffat Sather of West Seattle got a call from her lawyer: It was time to adopt her 6-month-old daughter, Winslow.

“I have to go through something that I think is actually humiliating,” Moffat Sather said. “I have to pay my own money for someone to come into my home and to judge whether or not I should be able to be the parent to my own child.”gay parents adoption

Jen Moffat Sather is Winslow’s biological mom. Megan Moffat Sather is not. They’ve been together 14 years and also have a son together.

But in the current political climate, Megan is afraid her rights as a parent might not be recognized if the family travels outside of Washington state.

One fear she expresses is that at some point in the future a hospital in some other state, for example, might exclude her from decisions involving her family. “It’s wrong, it’s absolutely wrong,” she said.

So Megan has embarked on a process called second parent adoption.

 

By David Hyde, KUOW.org, January 12, 2017

Click here to read the entire article.

Florida settles federal birth certificate suit, agrees to recognize same-sex married parents

Two years after gay marriage became legal in Florida, the state has agreed to settle a federal lawsuit over birth certificates issued to children born into same-sex marriages.

Two married lesbian couples and the advocacy group Equality Florida Institute sued the state in 2015 after health officials refused to include both parents’ names on the documents. The lawsuit came months after same-sex marriages became legal in Florida and two months after the U.S. Supreme Court struck down state bans on gay marriage as unconstitutional. 

LGBT family rights in a Trump presidency

American Flag 3D Illustration

“Now more than ever, it’s imperative that our families have every protection available under the law,” Miami family law attorney Elizabeth Schwartz said in an Equality Florida news release. “As a Florida native, I’m grateful my home state has recognized the validity of our marriages and is willing to honor legal parents on this most essential of documents.”

State Department of Health officials had contended they lacked the authority to change birth-certificate forms without lawmakers taking action, a position that led to only birth mothers — and not their spouses — being listed on the documents. But the Republican-dominated Legislature, which last year met from January until mid-March, did not approve changes to the law to recognize that same-sex marriage is legal in Florida.

The Department of Health in May asked U.S. District Judge Robert Hinkle to dismiss the lawsuit, arguing that it was moot because the state had started listing both spouses on birth certificates of children born into same-sex marriages and had started a rule-making process to allow the designation of “parent” — in addition to “mother” and “father” — on the birth records.

But lawyers for the same-sex couples and Equality Florida objected, arguing that the health department’s “recent remedial measures are both substantively incomplete and procedurally lacking in finality” and that the issues are not moot.

Last week, lawyers for the plaintiffs and the state filed a document telling Hinkle they had reached a settlement in the case.

Under the settlement, the state agreed to issue corrected birth certificates free of charge to the plaintiffs and to all same-sex couples who received incorrect documents. The state also pledged to apply the statute regarding birth certificates “and any forms promulgated based on that statute to same-sex spouses in the same manner as they are applied to opposite-sex spouses.”

The state also agreed to pay $55,000 to in legal fees and costs to the plaintiffs.

By Dara Kam, The News Service of Florida – Miamiherald.com – January 11, 2017
Click here to read the entire article. 

Arkansas Court Upholds Gay Marriage Birth Certificate Law – Blow to Same Sex Couples

Arkansas‘ highest court on Thursday threw out a judge’s ruling that could have allowed all married same-sex couples to get the names of both spouses on their children’s birth certificates without a court order, saying it doesn’t violate equal protection “to acknowledge basic biological truths.”

The state Supreme Court also issued a rare admonishment to Pulaski County Circuit Judge Tim Fox, saying he made “inappropriate remarks” in his ruling that struck down the birth certificate law. Fox had cited the U.S. Supreme Court’s decision legalizing gay marriage in his ruling last year that said married same-sex couples should have both names listed on their children’s birth certificates, just as heterosexual married couples do, without requiring a court order.Family law

In the state Supreme Court’s decision Thursday, the justices sided with the state attorney general’s office, saying Arkansas has a vested interest in listing biological parents on birth certificates.

“What is before this court is a narrow issue of whether the birth-certificate statutes as written deny the appellees due process,” Justice Josephine Linker Hart wrote in the court’s majority opinion. “…In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.”

Cheryl Maples, who sued on behalf of three same-sex couples, said she hasn’t decided yet whether to appeal to the U.S. Supreme Court. The three couples who sued were allowed to amend their children’s birth certificates last year under a ruling issued by Fox.

“There’s no requirement that DNA be given or that there be a biological relationship to a child to get on a birth certificate for a father, for the non-birth parent,” she said. “All you have to do is legitimize the child and you’re entitled, if you’re heterosexual. This is wrong.”

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said the state is “gratified” by the court’s decision.

“If any changes are appropriate it is the job of legislators to do so, not the circuit court,” he said.

Associate Justice Paul Danielson dissented and Justice Rhonda Wood concurred in part and dissented in part.

by Jill Bleed, ABCNews.com, December 8, 2016

Click here to read the entire article.

LGBT Family Rights in a Trump Presidency

Many are asking, “Will there be LGBT family rights in a Trump presidency?” While there certainly is cause for concern about the direction of our country, there are also certain realities that are reassuring.

I never thought I would be writing about LGBT family rights in a Trump presidency. But I also never received as many concerned calls from previous and prospective clients asking whether their marriages would be invalidated, or whether their second or step parent adoptions would be overturned.  These serious questions have led me to write about what I see as LGBT family rights in a Trump Presidency.

First, there is strong precedent holding that when a marriage is validly performed, it will be respected and honored under the law. This means that those LGBT Americans who are already married should not have to worry about a new Supreme Court taking their marriages away from them.LGBT family rights in a Trump presidency

For those who are not married but may wish to in the future, the question is a bit more nuanced. Shannon Minter, the legal director of NCLR, the National Center for Lesbian Rights, and one of the smartest legal minds in our community, said in a recent press release, “it is also highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right.”  Mr. Minter is basing this belief on the long held tradition of the court to honor its previous decisions, a term called stare decisis.

The question many legal scholars are asking is whether a newly conservative Supreme Court will ultimately hear a case challenging the right of LGBT couples to marry and overturn the Obergefell marriage decision. While unlikely, it is possible. We can only wait to see who Trump appoints to the Supreme Court.

The most moving calls that I have received in the past days have been from people either in the process of having their families or plan to have families in the near future. They are deeply concerned about the security of their families.  I recently wrote about New York’s changing family law and how second and step parent adoption are now critical to create unassailable family protections, particularly for non-genetically related parents.  These specific forms of adoption are state based and largely shielded from Federal meddling.  That said, if you have a child and have not gone through the adoption process, it is strongly recommended that you do so now rather than later, when our Federal judicial system may be less friendly to LGBT families.

Among LGBT lawyers, one issue of great concern regards transgender Americans and obtaining accurate gender markers on federally issued identification, such as passports. While there is a transgender rights case which the Supreme Court has agreed to hear, we do not yet know whether a ninth more conservative justice will be appointed in time to hear it.

My husband reminded me that politics is cyclical. We have bounced between conservative and liberal presidents and congresses many time before, however, we have never before been faced with a president who based his entire campaign on dividing America by fearful and bigoted rhetoric.  We have never before had a President who, during his campaign, threatened to ban all Muslims from the country, or “lock up” his presidential opponent or degrade women as objects of his own control and pleasure.

Now more than ever it is time to be proactive. Many of us have experienced the shock and sadness associated with the loss of what we had hoped would be a liberal president in the White House.  We are entering uncharted territory.  LGBT family rights in a Trump Presidency will undoubtedly take some hits, but we are a strong, resilient and loving community.  And we have the tools to protect our families.   Don’t fail to use them!

By Anthony m. Brown, Esq.  November 11, 2016 – For more information, visit www.timeforfamilies.com or email Anthony at

Contact Time For Families

Contact Form
* indicates required field
Anthony@timeforfamilies.com.

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.

Contact Time For Families

Contact Form
* indicates required field