Same-Sex Marriage and Your Estate Plan

Estate Planning for same-sex couples in New York just got a lot more interesting.  While marriage equality is certainly welcome in the Empire State, there are now conflicting Federal and State guidelines that must be understood and incorporated into your overall estate plan.  Conflicts between these two governing interests must be resolved as best as possible and your estate plan must be a portable as possible.

A comprehensive estate plan must now properly define a marital relationship in a manner that will be respected by, yet not conflict with, the laws of the federal government and with the laws of states which do not recognize the NY marriage. 

It is also critical to understand exactly what rights and benefits your NY marriage will provide.  From intestate succession to priority status in a probate proceeding, marriage carries powerful protections for a surviving spouse and peace of mind for couples seeking to protect their families.

Other benefits of marriage include:

  • The protection that divorce provides upon the dissolution of a marriage
  • The ability to file joint state tax returns
  • Exemption from State estate taxes for a surviving spouse
  • Medical decision making and hospital visitation
  • Public employee pension and health insurance benefits
  • The ability to sue for wrongful death of a spouse and receive worker’s compensation for a spouse who is injured on the job


Getting married is an important and extremely personal choice.  You may feel compelled to marry because, “grow up, get married, have kids,” was the mantra you learned.  It is your choice.  Before marrying, you should also consider that gay-unfriendly states or countries might not recognize your marriage.  You may also become ineligible for means-based government assistance should the assets of your spouse be added to the eligibility calculation.   The immigration status of a spouse may be red-flagged due to a same-sex marriage.  Finally, many states and countries that allow single individuals to adopt, do not allow adoption for same-sex couples.  

Whether you decide to take advantage of New York’s new found marriage equality or not, if you are partnered, you must be proactive in your estate plan.  If you have any questions at all, please feel free to contact me at

Baby Makes Four, and Complications

June 19, 2011 

New York Times


AT the apartment in Brooklyn where George Russell spends four nights each week, he checked the clock: 7:09 p.m. Wasn’t it 7:05 about 20 minutes ago? Never had time moved so slowly. Was the clock even working? They had tossed the ball around, chased each other, done the book about a bear. Now the dreaded bedtime video. Every night, Griffin, who was 18 months old, insisted on this DVD about race cars, space ships and motorcycles, narrated by a saccharine pair named Dave and Becky. Mr. Russell found them galling. Once, while watching, he said, it made him “feel a profound despair like when I read ‘The Bell Jar.’ ” He slid in the disc. Soon, his thumb was punching fast-forward. “It’s so much better at double speed, isn’t it, Griffin?” Darkness had dropped softly. Rain drummed on Plaza Street East. Mr. Russell regarded Griffin and his curly blond hair. “He looks just like me when I was little,” he said. “I don’t feel paternal toward him. Yet it’s odd when I look at him and I see me.” The setup is complicated. Griffin’s mother, Carol Einhorn, a fund-raiser for a nonprofit group, is 48 and single. She conceived through in vitro fertilization with sperm from Mr. Russell, 49, a chiropractor and close friend. Monday, Tuesday, Thursday and Sunday nights, Mr. Russell stays in the spare room of Ms. Einhorn’s apartment. The other three days he lives on President Street with his domestic partner, David Nimmons, 54, an administrator at a nonprofit. Most Sundays, they all have dinner together. “It’s not like Heather has two mommies,” Mr. Russell said. “It’s George has two families.” Two addresses, three adults, a winsome toddler and a mixed-breed dog officially named Buck the Dog. None of this was the familial configuration any of them had imagined, but it was, for the moment, their family. It was something they had stumbled into, yet had a certain revisionist logic. Such is the hiccupping fluidity of the family in the modern world. Six years running now, according to census data, more households consist of the unmarried than the married. More people seem to be deciding that the contours of the traditional nuclear family do not work for them, spawning a profusion of cobbled-together networks in need of nomenclature. Unrelated parents living together, sharing chores and child-rearing. Friends who occupy separate homes but rely on each other for holidays, health care proxies, financial support. “Some of the strictures that were used to organize society don’t fit human change and growth,” said Ann Schranz, chairwoman of the Alternatives to Marriage Project, a 10-year-old organization. “What matters to us is the health of relationships, not the form of relationships.” And so here on Plaza Street, four people are testing the fuzzy boundaries of an age-old institution, knowing there is no single answer to what defines family or what defines love. Griffin, now almost 3, calls Mr. Russell “Uncle George” and Mr. Nimmons “Dave.” At some point, Ms. Einhorn intends to tell her son the truth. Mr. Russell worries about that moment. He never wanted to be a parent; he saw the sperm donation as a favor to a friend. He did not attend the birth or Griffin’s first birthday party. His four sisters were trying to figure out whether they were aunts. Once a week, Ms. Einhorn went out, and Mr. Russell baby-sat. But only after Griffin was asleep — Uncle George was like the night watchman. Until March 2010, when Mr. Russell agreed to put Griffin to bed and see how it went. There was a routine that had to be followed or it was tantrum world. A bath, dinner, a story, the hated video, then a circuit of the apartment to say good night to everything. Mr. Russell loathes television, an aversion he connects to his father’s seeming to have kept it on permanently. “Carol can watch, like, 52 ‘Law & Order’s back to back to relax,” he said. “She likes shows like ‘Army Wives.’ I can’t even say the words ‘Army Wives’ without irony or cringing.” He snapped off the television and announced, “It’s time to take a walk.” Barefoot, he hoisted Griffin into his arms and felt the pleasant response. They said good night to the kitchen. Good night, dining room. Good night, plant. Good night, George’s room. Good night, outside world. Mr. Russell gave Griffin a bottle, and lowered him into his crib. Not bad at all. “I certainly don’t want to be the child’s parent,” he said. Then: “What can I say, it’s lovely to hold a child in your arms.” CAROL EINHORN once wrote a song called “Canyon.” It addressed the void left by her father, who died when she was 5, after pancreatic cancer came without proper notice. She and an older brother grew up on the Upper East Side. Both parents worked in finance; both had been only children. Mom remarried, but they broke up. That angered Ms. Einhorn, the small family always shrinking. For herself, she wanted two or three children, an orbit of relatives. Ms. Einhorn went to Wesleyan University and became a singer and songwriter, once singing backup for Roberta Flack. (Ms. Einhorn’s professional name is Caroline Horn.) She quit performing in 1998, eventually becoming editorial director of a publication for young people, Music Alive! She nearly married a medical student, but reached her 40s with no Mr. Perfect or even Mr. Near-Perfect. In 2004, she decided to have a baby anyway, and began researching sperm donors. Mr. Russell had been a year ahead at Wesleyan. They bumped into each other after graduation and became great friends. She thinks of him as a brother, especially since her actual brother is a troubled recluse she has no contact with. Mr. Russell grew up in Connecticut, where his sisters teasingly called him the Godlet because they felt he was favored as the only boy. His father worked at the State Department of Environmental Protection and now lives with dementia in a center in Baltimore. His mother, who died in 1999, professed to want 10 children, but, awakened by Betty Friedan, had her tubes tied after 5. She returned to school and became a college professor. Mr. Russell grew to view children as obstacles to ambition. He came out in college, and afterward was a modern dancer, with a side job as a legal secretary. At 34, he returned to school, and four years later became a chiropractor. He sees utility in odd rituals. Sometimes he asks clients to scribble what bothers them on a piece of paper, fold and staple it. Then he writes “Gone” or “Goodbye” on the papers, and either burns them and tosses the ashes in the river or drops them in a mailbox, no doubt baffling letter carriers. When Ms. Einhorn told him her baby plans, Mr. Russell was shocked, wondering “if she wanted to be crawling around on the floor at 45.” Later, listening to her concern about “an empty space where the father would be,” Mr. Russell said, well, he would be the donor. Getting pregnant was wrenching — a miscarriage, autoimmune issues leading to a trip to Mexico for a treatment unapproved in this country. The fifth round of IVF was to be the last. Griffin was born on Oct. 21, 2008. Then came postpartum depression. Griffin was colicky. One day, Ms. Einhorn wrote in her journal, “I love my baby, I hate my life.” THE double households began because of economics. The tattered economy rocked Mr. Russell’s business — without jobs, people let their musculoskeletal systems go — and his loans became a $250,000 whirlpool of debt. He eventually filed for personal bankruptcy. He had met Mr. Nimmons in 2007 at a retreat in upstate New York. One of four children of a New York public-relations man turned California college administrator and a homemaker, Mr. Nimmons describes his family as being “as close to the perfect American family as you could get.” He worked as a freelance writer, an editor at Playboy and a speechwriter for Geraldine Ferraro, and he wrote a book on gay life before becoming special projects director at the Family Center, a private agency helping families in crisis. Mr. Nimmons lived on the bottom two floors of a brownstone he owned in Park Slope, Brooklyn. He and Mr. Russell each had recently ended a long relationship when they fell in love; they were not ready to cohabitate again full time. Ms. Einhorn said Mr. Russell could stay at her place part time. For Griffin, that would mean a visible male presence, the thing missing from her youth. So in July 2009, the four of them embarked on a provisional commingling until whatever came next. On President Street, the men split the grocery and cable bills. Mr. Russell covers the housekeeper ($70), since he’s fussier about unkemptness. Same with the electric bill, because he always leaves lights on. Mr. Nimmons handles the mortgage; Mr. Russell pays him some rent. On Plaza Street, Mr. Russell gives Ms. Einhorn $100 a week for food and $60 of the $100 for her biweekly housekeeper. He bought an air-conditioner for his room; she paid for the installation. Keeping the refrigerator in balance with Mr. Russell there part time, Ms. Einhorn finds, “is like working an algebraic equation.” MR. RUSSELL fixed the food: flounder and pizza. Ms. Einhorn wondered who was the edgiest person he could imagine as a Chia Pet. Mr. Russell offered, “Mother Teresa?” It was family dinner night. Simon and Garfunkel oozed from the stereo. Mr. Nimmons was on his way; Mr. Russell mentioned something about trying not to shut him out of the conversation. Griffin watched a Thomas the Tank Engine video. Checking it out with half an eye, Mr. Russell said, “I’m thinking of doing a doctoral dissertation on this.” He asked Ms. Einhorn, whose Music Alive! job had recently been eliminated, if she had considered working on the railroad. They had so much fun together. They called each other Sweetie Cat and did cat riffs; when she learned she was pregnant, Ms. Einhorn texted: “I am with kitten.” The Plaza Street apartment is elegant, a baby grand piano ruling the living room. Two bedrooms plus the pint-size office where Mr. Russell unfurled a bed on the floor, what he called his “camping existence,” until last April, when Ms. Einhorn bought him a trundle bed. When Mr. Nimmons and Mr. Russell met, Project Griffin was already under way, which Mr. Nimmons said he saw as “another data point, and not a big one.” He and Ms. Einhorn like each other, but are not close. As for Griffin, Mr. Nimmons said, “I have a certain distant avuncular feeling.” At dinner that Sunday, Ms. Einhorn veered into a story. Many years ago, her mother was giving a party and a soufflé didn’t rise because of the weather; she called Craig Claiborne, who actually answered, and told her to use cream of tartar. “She was a pistol,” Ms. Einhorn said. “She sent a telegram to the White House when Ford pardoned Nixon.” Ms. Einhorn asked Mr. Nimmons what was going on, and he said, “Oh, I’m working like a fiend.” She told Mr. Russell she had gotten a light for him as well as the bed. “Not only did I make your bed with sheets and lay down the rug,” she added, “but I scrubbed the shower mat.” He said, “You’re a good person.” The night faded and Mr. Nimmons left. Ms. Einhorn and Mr. Russell liked to end evenings with a ritual. For a while, they recited “intentions,” lists of aspirations. Then they switched to “gratitudes.” Ms. Einhorn started: “I had a really nice Saturday. I’m really grateful for both play dates. And I’m grateful that this was my last week of work at a place where I was underappreciated and underutilized. I’m grateful that I have a financial cushion. I’m grateful that Griffin has grown just as he should and is saying other words. … I’m grateful that despite all the wacko middle-of-the night wake-ups, I haven’t gotten sick.” Mr. Russell: “I’m grateful for the yummy dinner. I’m grateful that Dave is starting to understand my experiences and validate them rather than just listening and putting a checkmark. I’m grateful that business has gotten better. … I’m grateful for my new bed and my light. I’m grateful that I don’t have to sit here with allergies.” IT should be noted that Ms. Einhorn’s mother, Madeline Glick, who is 80 and lives on the Upper East Side, adores her grandson and visits frequently. Ms. Glick and her second husband don’t speak; Ms. Einhorn, though, regularly takes Griffin to visit him. Though Ms. Glick finds Mr. Russell delightful, she views the whole arrangement as peculiar. “Though I recognize that male companionship is important to Carol, I think he’s a little bit taking advantage of it,” she said. “I think his coming and going at will is sponging off her. If he’s trying to figure out his relationship with Dave, he shouldn’t be using her place to figure it out.” As for Griffin, Ms. Glick thinks Mr. Russell’s relationship to him should be as a trusted family friend, not as a father. “Maybe it’s narrow of me,” she said. “George is pursuing a gay lifestyle and all, and I kind of want Griffin to have a view of male masculinity greater than George.” Thanksgiving got messy. Ms. Einhorn planned on dinner with her mother and Griffin; Mr. Nimmons and Mr. Russell had invited friends to President Street. Mr. Nimmons told Ms. Einhorn to drop over with Griffin, but not her mother. Ms. Einhorn was offended but said only that they would pass. Then, a few days before the holiday, Mr. Nimmons asked Mr. Russell to see if Ms. Einhorn had a roasting pan he could borrow. She was furious — disrespecting her mother, then wanting a pan! Mr. Nimmons wrote her an e-mail saying he didn’t remember saying he didn’t want her mother to come, and if he had, he hadn’t meant it. Ms. Einhorn did not think that was enough. They had their separate Thanksgivings, and Mr. Nimmons skipped the next Sunday meal. He had lunch with Ms. Einhorn to smooth things over; she put it behind her, but was still uncomfortable that he had forgotten an important conversation. Sunday dinners resumed. YEARS ago, over the Internet, Mr. Russell became a minister of the Universal Life Church: a dozen couples owe married life to him. He adapts weddings to their wishes. Once he was told not to mention “lifetime commitment.” In another, one compulsory vow was never to watch a movie starring Helen Hunt. Last summer, on a lake in the Poconos, the groom came by rowboat, the bride by canoe. On the way to the Poconos, Mr. Russell was moody and quiet, making Mr. Nimmons feel abandoned. Mr. Russell has a deep playlist of anxieties. He is uneasy in public places (“I have a nervous system like an air-traffic controller”); begins days feeling dread (“I used to say I crawled up to self-esteem”); and feels the need to audibly criticize movies while in theaters. He is disorganized: he did not use a wallet until he was 45, because he found it hard to arrange. He loses keys, phones, everything. He’ll neglect to insert coffee in the coffee maker and brew hot water. He left the stove on; forgot to baby-sit for Griffin. He is not shy about seeking help: “I’ve been going to therapy since God was a child. I think I actually counseled Freud.” Mr. Russell finds Mr. Nimmons too upbeat about everything. Mr. Nimmons finds Mr. Russell too downbeat. “George is vexed by things I don’t understand,” Mr. Nimmons said. “There was a time last year when I asked him how he was and he said, ‘I’m bleak, I’m despairing.’ I said, ‘Oh, my God, those are heavy words.’ ” And: “There will be times I’ll say I notice we just spent 20 minutes talking about what happened to you today. I haven’t had a question yet. I had a day, too.” Mr. Russell on Mr. Nimmons: “He wants to hear about the most interesting thing with me, and I want to vent.” And: “I greatly admire and deeply love Dave. One of his deficits is his denial.” IN the kitchen, at 6:30 a.m., Ms. Einhorn told Mr. Russell about her dream: “I was swimming in a pool and I looked up and saw a plane and I said, ‘What is that?’ and the woman said, ‘That’s the fighter jet.’ Not a fighter jet, the fighter jet. And then the fighter jet did a water landing.” “Hmm,” Mr. Russell said. “And I didn’t even watch ‘Army Wives.’ ” Griffin smacked a plant standing on the countertop, and Ms. Einhorn told him not to assault plants. She was a few weeks into a new job at Midori and Friends, a nonprofit agency that puts music programs in New York schools. She was eager to succeed. Mr. Russell said, “One thing I’ve observed is that if every time you turn water into wine, it doesn’t go well. They don’t write a book about you or anything. They just keep on drinking.” He tousled Griffin’s hair and said, “The question is, will the saintly little messiah eat fruit salad?” “I doubt it,” Ms. Einhorn said. Uncle George was drawing closer to Griffin. He had taken him to the botanic garden. Put his picture on Facebook, though the caption was cryptic: “He’s my nephew. But biologically he’s my son.” It bothered Mr. Russell if Griffin was peremptory. He also did not appreciate the “chopped liver effect.” The other evening, he was reading a story when Griffin said, “I want Mommy.” Mr. Russell said, “Oh yeah, chopped liver moment.” They will not be celebrating Father’s Day. For one thing, Mr. Russell does not think of himself as a father; what’s more, he views all holidays as “premeditated disappointments.” Years ago, he invented the Russell Alternative Holiday, observed on a floating date. He and Mr. Nimmons and some of his sisters marked the most recent R.A.H. by going to see a Revolutionary War re-enactment and parade. Actually, they were late, so they missed the re-enactment. Ms. Einhorn and Mr. Russell joked about how they couldn’t believe they had not gotten sick of each other by now. Yes, sometimes he found her bossy and caustic. Sure, it annoyed her when he got didactic and made her feel talked down to. Yet they rarely argued. The nanny arrived, and it was time to go to work. “We have had 1 hour and 20 minutes of playtime, and it’s not enough,” Mr. Russell said. “It’s a little like ‘Letterman’ when you have insomnia.” “I FEEL I’m more involved with your friends than you are with my friends,” Mr. Nimmons said to Mr. Russell. They were at the apartment on President Street. They made a point of having unexpurgated discussions about festering issues. Buck the Dog was stamping around. Mr. Russell: “I never bring up your friends as your friends, but you always bring up my friends as my friends. It’s as if there was this big blackboard, this tit for tat, and it’s way loaded on my side. There’s this weird rhetoric where I feel I owe you something.” Mr. Nimmons: “No, I just don’t get that much out of them. And they’re not all people I would spend that much time with.” Mr. Russell: “I think you’re pretty good about refusing time with my friends you don’t like.” Mr. Nimmons: “Well, this is not an attack.” Mr. Russell: “It feels like it.” Mr. Russell mentioned how unsettled he felt: “All my knickknacks and things are in the basement in boxes. I don’t see how there will ever be any place for them. But maybe I’ll never live here full time.” Mr. Nimmons: “That’s funny, because as I look around I see a lot of things that aren’t mine.” Mr. Russell: “Like what?” Mr. Nimmons: “That couch.” Mr. Russell: “But we never use it.” Mr. Nimmons: “I look at this bookshelf and I’m not sure where my books are. The TV came with you. The cat lamp came with you. The box that it sits on came with you.” Then Mr. Nimmons added: “I had two rules of relationships that we violated. One: It’s never a good idea to meld things into someone’s space. Two: You shouldn’t move in together until you’re absolutely sure you can’t not.” So they talked about the future. Mr. Russell: “I don’t really know what I want to happen. I’m grateful to spend time here with you, but this house doesn’t really pull me. There’s no space in this house that feels like my space.” Mr. Nimmons: “To me, it’s less about the space than about how we’re developing as a couple.” Mr. Russell: “To not even have a space is yucky. I don’t have a place at Carol’s that’s mine except a bed and a plastic box with my clothes in it.” Then he said: “I like living partly with you and partly with Carol. I liked living by myself. But I actually think it’s healthier living around people. I didn’t expect that.” Then Mr. Russell said he had to go to Plaza Street, his musical-house existence. He had laundry to fold. MS. EINHORN unpacked the takeout Thai; she hadn’t the energy to cook. Mr. Russell and Mr. Nimmons were in Italy. Ms. Einhorn, who had not dated since getting pregnant, was missing her roommate. Something was going on with her and this improvised family. She remembered the hollow feeling when Griffin’s birth certificate came with a blank space for father. She felt better when she included Mr. Russell on her census form. They were soul mates, that was for sure. She remembered that first time she visited her father’s grave, in the icy rain, and he came along. The name on the tombstone was obscured by an overgrown bush. Mr. Russell knelt down and pruned it, making it right. “I’ve ended up in an unconventional setup, and it’s a setup that agrees with me,” she said. “Sure I want love, I want intimacy, I want romance, but is this desire to get married a beautiful dress that just doesn’t fit? I look at my married friends and there aren’t many I’m jealous of. Some of them say they’re jealous of me.” She added: “You know, I got this rustic cabinet for $10 and stored it in the office. When George came here one night, he said, ‘I’ve been meaning to tell you how much I love that cabinet.’ He said, ‘Never leave me.’ ” Suddenly, one night, they were talking about it. Ms. Einhorn: “So this was supposed to have been this little stopgap maneuver and now it’s, what, almost two years?” Mr. Russell: “Yes. It’s really fun living over here.” Her: “It’s fun having you. I don’t know if either of us has any urgency to change this arrangement.” Him: “No. It’s outrageous — who would choose this, living in two people’s houses? But it’s only gotten better over time.” Yes, but. “You empty the dishwasher, you cook, but I wonder if you should do more things,” Ms. Einhorn said. “Like if a light went out, I don’t know if it would occur to you to change that light. Because you wouldn’t know where the light bulbs are. And that seems unusual.” Him: “Well, if a light bulb went out, I would replace it. And I do know where the light bulbs are. But your point is well taken.” Her: “How does what I say feel on your end?” Him: “I don’t actually know.” Her: “Do you feel like the helpful guest?” Him: “Sort of.” “I don’t have any time,” he added. “So the thought of doing more is very threatening.” “It’s just conceptual,” she said. ANOTHER evening slipped into dark on Plaza Street. Refreshed by seltzer, the cohabitants kept alive a conversation about the weirdness of a new opera centered on Anna Nicole Smith, and how there was once a musical about Hiroshima, and how good the movie about Joan Rivers was, and how Ms. Einhorn had never had escargots. Etc. Mr. Russell had a headache and rattled out a couple of ibuprofen. He told Ms. Einhorn how smart it was that they had bought the big bottle. Curled up in a crib in the other room was a small child who one day will find out that Uncle George is not exactly his uncle. “I’m fearful that he will be angry or demanding, either one of which would be hard for me,” Mr. Russell had said. “I’m worried he might say, ‘Well, why didn’t you decide to be my father, being that I don’t have a father?’ ” They plopped down in the living room and played a poetry game. Each wrote a line and the other had to invent the next one, rhyming off the last word. They sniggered at the results, the nonsense of it all. Then they prayed that Griffin would not awaken at the zombie hour of 4:45 as he had been. Mr. Russell hoped for 7:10. Ms. Einhorn, 7:12. That bit of futility dispensed with, they turned to their bedtime ritual. Not the gratitude list. This time, they would sing. They chose “Om Namo Bhagavate Vasudevaya,” a Tibetan chant. “Om namo,” they began. Their voices intersected and became one. Outside came the sough of wind. They kept going. They sang. Yes, they sang.

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

Tuesday, June 14, 2011

Beyond (Straight and Gay) Marriage by Nancy Polikoff

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell’s petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court’s order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell’s attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child’s life and who has teamed up with the bio mom can negate a nonbio mom’s claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn’t get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child’s second mother by the sheer passage of time.

Posted by Nancy Polikoff at 5:46 PM

Adoptions by Gay Couples Rise, Despite Barriers

June 13, 2011 – New York Times

Growing numbers of gay couples across the country are adopting, according to census data, despite an uneven legal landscape that can leave their children without the rights and protections extended to children of heterosexual parents.

Same-sex couples are explicitly prohibited from adopting in only two states — Utah and Mississippi — but they face significant legal hurdles in about half of all other states, particularly because they cannot legally marry in those states.

Despite this legal patchwork, the percentage of same-sex parents with adopted children has risen sharply. About 19 percent of same-sex couples raising children reported having an adopted child in the house in 2009, up from just 8 percent in 2000, according to Gary Gates, a demographer at the Williams Institute on Sexual Orientation Law at the University of California, Los Angeles.

“The trend line is absolutely straight up,” said Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute, a nonprofit organization working to change adoption policy and practice. “It’s now a reality on the ground.”

That reality has been shaped by what advocates for gay families say are two distinct trends: the need for homes for children currently waiting for adoption — now about 115,000 in the United States — and the increased acceptance of gays and lesbians in American society.

The American family does not look the same as it did 30 years ago, they argue, and the law has just been slow to catch up.

Most of the legal obstacles facing gay couples intending to adopt stem from prohibitions on marriage, according to the Family Equality Council, an advocacy group for gay families. In most states, gay singles are permitted to adopt.

Though advocates for gay families can point to legal victories — court rulings in Florida last year and in Arkansas in April — they note that they are tempered by losses, such as in Arizona, which passed a law recently requiring social workers to give preference to married heterosexual couples.

“It’s two steps forward, one step back,” said Ellen Kahn, director of the Family Project at the Human Rights Campaign, a resource for lesbian, gay, bisexual, transgender families and the agencies that work with them.

But laws and politics aside, advocates say that more adoption agencies and social workers are seeing same-sex couples as a badly needed resource for children in government care.

“The reality is we really need foster and adoptive parents, and it doesn’t matter what the relationship is,” said Moira Weir, director of the job and family services department in Hamilton County, Ohio. “If they can provide a safe and loving home for a child, isn’t that what we want?”

The Obama administration has noted the bigger role that gays and lesbians can play in adoptions. The commissioner for the Administration on Children, Youth and Families, Bryan Samuels, sent a memo to that effect to national child welfare agencies in April.

“The child welfare system has come to understand that placing a child in a gay or lesbian family is no greater risk than placing them in a heterosexual family,” Mr. Samuels said in an interview.

The numbers are small. Mr. Gates estimates that 65,000 adopted children live in homes in which the head of the household is gay, or about 4 percent of the adopted population.

Ms. Kahn, who trains adoption agencies to work with gay and lesbian prospective parents, said that the number of agencies she works with has more than doubled over the past five years to about 50.

She added that discrimination still remains and that in some conservative states, adoption agencies that serve gay families function like an “underground railroad.”

But adoptions are happening anyway, even in places where the law does not give both parents full rights. Matt and Ray Lees, a couple in Worthington, Ohio, said they were selected as parents for a 7-month-old, ahead of several heterosexual couples, in part because they had successfully adopted two older children.

Social workers conducted detailed background checks on both of them, but under Ohio law, they must be married to adopt jointly, so when the legal adoption process began, only one could participate. (Same-sex marriage is illegal in Ohio.)

The Leeses took turns. Ray adopted three — two who were originally from Haiti and a baby — and Matt is completing an adoption of five siblings whose drug-addicted mother could not care for them.

“When we first considered it, we thought, people are going to think we are crazy for having eight kids,” said Matt Lees, 39. But they did not want to split the siblings and after careful thought, decided to take them.

“It was the best way we could think of spending the next 20 years of our lives,” he said.

They bind their two legally distinct families together with custody agreements. They do not provide full parental rights, however, because like many states, Ohio does not allow second-parent adoptions by unmarried couples unless the first parent renounces his or her right to the child. They have to maintain two family health insurance policies.

Same-sex parents who adopt tend to be more affluent and educated than the larger population of same-sex parents, according to Mr. Gates.

Matt and Ray Lees both have college degrees and white-collar jobs at Nationwide, an insurance company based in Columbus.

It was hard for them as two fathers at first. Their eldest daughter, 6 at the time, cried and asked who would cook and do her hair. But those days are long past. And though the family is a curiosity in their neighborhood — two white men driving eight black children in a large Mercedes minivan — they are not alone. There are at least two other gay families raising adopted children nearby.

Adoption has not attracted the kind of attention nationally that gay marriage has. Advocates say they like it that way. The more it is in the public eye, the greater the chances conservative legislatures will try to block it, they add.

But conservative groups say the fight is weighted in favor of gay people because courts tend to side with them in rulings. Indeed, a court in Durham County, N.C., had been quietly approving second-parent adoptions that were not formally allowed by statute, until a State Supreme Court ruling stopped it in December.

And the expansion of civil union laws has caused some religious-based charities to stop or modify operations in cities and states where they have passed, including in Illinois this month, where several charities have temporarily suspended new parent applications.

Peter Sprigg, senior fellow for policy studies at the Family Research Council, a conservative advocacy group, said the goal of advocates of adoption by same-sex couples was “to silence people like me.”

Mr. Pertman believes the trend of rising adoption is irreversible.

“The war has been won, but the battles are still being fought,” he said.

Octomom Case Rattled Fertility Medicine

June 3, 2011
New York Times

LOS ANGELES (AP) — The case of the doctor who lost his license for helping “Octomom” bear the world’s largest-surviving brood of babies has rattled the field of fertility medicine — a $3 billion industry with little regulation.

When the Medical Board of California revoked the license of Dr. Michael Kamrava on Wednesday, it was a rare outcome that came more than two years after his patient Nadya Suleman gave birth to octuplets.

He’s allowed to keep practicing until July 1.

There are no laws that prevent doctors from implanting multiple embryos and possibly producing another “Octomom”-type case, but national guidelines have been tightened in the wake of the case to restrict how many embryos can be implanted in patients.