Gay parents sue after IRS denies tax deduction for in-vitro fertilization, surrogate

irsTBO.com by Elaine Silvestrini, December 14, 2015

Is being gay, in a long-term committed relationship, the same as being biologically infertile?

That’s the argument being made by a Stetson law professor in a lawsuit against the federal government.

Joseph F. Morrissey, who teaches constitutional and business law at Stetson, is seeking to overturn a ruling by the Internal Revenue Service that denied him and his partner a tax deduction. The deduction would have been for costs associated with their use of in-vitro fertilization and a surrogate who gave birth to their twin sons.

 

An IRS revenue agent who denied the claim said Morrissey’s sexual orientation was a “choice,” according to the lawsuit filed in U.S. District Court in Tampa.

An IRS spokesman said the agency would have no comment on the lawsuit and wouldn’t discuss, even in general, the tax deductions involved.

Morrissey has been in a “monogamous, loving and committed relationship with his partner for 15 years,” the lawsuit says. Morrissey and his lawyers declined to discuss the case.

The partner, whose name is not given, became a Pinellas County middle school mathematics teacher after the couple moved to Florida in 2004 when Morrissey took a job at Stetson, according to the lawsuit.

The pair are now engaged to be married, after the U.S. Supreme Court struck down laws against same-sex marriage.

They have been trying since 2010 to have children, according to the suit. They initially considered adopting a child, but at the time it was still illegal in Florida for gays to adopt.

As the lawsuit notes, the adoption ban was ruled unconstitutional in late 2010, and officially repealed by the Legislature earlier this year.

The couple’s twin sons — biologically Morrissey’s — were born last year after several previous attempts failed.

“In the end, bringing twin boys into the world took nearly four years, seven IVF procedures (including those scrubbed at the last minute for failed medical exams), three surrogates, three egg donors, two clinics and more than $100,000,” the lawsuit says.

When the babies were born, Morrisey’s partner quit his job to become a stay-at-home father.

As a general rule, medical expenses are deductible only after they exceed 10 percent of the filer’s adjusted, gross income, according to Kris Siolka, spokeswoman for the National Association of Tax Professionals.

Morrissey filed for $36,538 in medical deductions on his amended federal tax return for the 2011 tax year.

While the amendment to his return was being reviewed, Morrissey wrote the IRS in 2014 arguing that the agency had allowed heterosexual couples’ deductions for fertility treatments, including the use of an egg donor.

But the IRS rejected the deductions for the costs associated with the egg donor and surrogate, writing that the medical services must be provided to the taxpayer, his spouse or dependent.

In December 2014, the IRS denied Morrissey’s appeal, the lawsuit states.

Click here to read the entire article.

in Egg Donation / In the News / IVF / Legal  by Anthony Brown 0 comments

Adoption New York Home Study

What is a “home study” for adoption New York and what can we expect?

With both heterosexual and gay adoption New York, the family will need to participate in a home study as part of the adoption process. A home study is required in all adoption cases, whether you as a couple are adopting a new child or whether one partner is adopting the legal or biological child of their partner. It may seem daunting inviting people into your home to judge whether you are fit to be a parent, the process is not intended to trick you or catch you off guard. A person or family that is disqualified from the adoption process is usually done so during the background check portion of the adoption, before a home study is conducted.

 

What we need to prepare for in a home study for adoption New York?

The first step in a home study involves a lot of paperwork. In addition to submitting a long list of documentation, including things like background checks, a child abuse clearance, etc, a social worker will come to inspect your home to make sure you are providing a fit environment to raise a child. While your home does need to pass safety requirements (like making sure your smoke alarms are all in working order), if any issues do come up these are most likely pretty quick fixes.

The social worker will also interview the parent or parents adopting, as well as any other adults living in the home. They are looking to make sure the prospective parents display characteristics that qualify them to be a fit and loving parent. Such qualities the social worker is looking for may include:

  • Being able to provide for the child’s needs on a physical and emotional level
  • Being able to financially provide for a child
  • Be in good health to care for a child
  • Have the emotional capacity to accept and care for an adopted child and address any emotional implications this may mean for that child with realistic expectations
  • The ability to handle stress
  • A connection with the community.

 

Once the home study is complete, the caseworker will prepare a written summary about the family to be referenced during the rest of the adoption process. Typically, parents looking to adopt will find a home study provider through their attorney, depending on the county in which they live, and will be responsible to pay for the home study out of pocket.

 

If you have any questions about the process for adoption New York or the home study process, contact Anthony M. Brown at 212-953-6447 or Brown@awclawyer.com. As the head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, Brown provides expertise in bringing families together and establishing a legal child-parent relationship.

in Adoption  by Anthony Brown 0 comments

The Story Behind America’s Youngest Gay Dad

Twenty-year-old Brian Mariano finds the normal life overrated as he explores being a gay dad with his 2-year-old son Aison.

Mariano became a father with then-girlfriend Kelly when he was still in high school, and the two are negotiating all the struggles of young parenthood – plus a few extra. As a father, Brian Mariano feels lucky to have close family and friends who support him. But the gay dad (the youngest American gay dad we know of) from Newton, Massachusetts, admits that sometimes some people just don’t get him.

“Everybody in my life is really supportive of me,” he said. “If it’s someone new and a friend mentions I’m a dad, they will stop. ‘Wait, what? How are you a dad? You’re gay.’ It’s like that ‘Mean Girls’ quote sometimes. You know – ‘if you’re from Africa, why are you white?’”Gay dad

Still, Mariano knows that from the outside looking in, his story is anything but typical. The young man was a junior in high school when his girlfriend, Kelly, became pregnant. They had been dating for a year.

“I like to refer to myself as a ‘Kellysexual,’ which may sound really weird,” he said. “I’m gay, but there’s Kelly. Everybody kind of knew that I was gay. I didn’t really have to say it. People will come along and ask if our relationship was a cover-up. And I say, well, I got her pregnant, so I don’t think that’s the case.”

Kelly gave birth to Aison Mariano-Nichols, who will be turning 3 years old in March. The two stayed together for the first two years of Aison’s life before they eventually split.

Click here to read the entire story

 

gayswithkids.com – December 12, 2015 by Michael Lambert

in Family Stories / In the News / Parenting / Personal Stories  by Anthony Brown 0 comments

Gay Adoption New York

Gay Adoption New York: is adoption necessary in the case of a sperm donor?

For same-sex couples, the fight for marriage equality is over and done with. As they start to building families, however, the struggle remains as the intricacies of family law in New York and across the U.S. haven’t quite caught up to this landmark change. This has led to much confusion on the part of same-sex, particularly lesbian, couples. One question is frequently asked: if two married women conceive a child through artificial insemination, does the non biological parent need to go through the process of gay adoption New York?

 

Gay Adoption New York is still necessary for married women using a sperm donor

Unfortunate case law in the State of New York, entitled Paczkowski v. Paczkowski, held that when married women have a child through artificial insemination, the marital presumption of parentage does not apply to them. This was the case in New York before gay marriage was nationally legalized and it still applies.

Marriage means parentage then?

Marriage does not convey legal parentage for same-sex couples. If your spouse had your child before you were married, gay adoption in New York is still necessary, particularly when you were not listed as a parent on the birth certificate. Despite marriage equality, adoption laws still vary from state to state so it’s important to check the state laws if you plan on adopting your child outside of New York.

What about the sperm donor?

In the case of an anonymous donor, typically the donor has given up all parental rights through the donation process. For this reason, using an anonymous donor is beneficial in New York because a married lesbian couple using an anonymous donor can have both parents’ names on the birth certificate. However, that alone does not create parentage, only second parent adoption does this.  Many couples opt for a known sperm donor for various reasons. In this case, the child and the donor will likely come into contact at some point. It’s vital to establish before conception the role the donor will play in the child’s life, and execute any legal documentation outlining anything pertaining to parenting or visitation rights of the donor. Any lesbian couple using a known sperm donor, regardless of whether they identify him as the father on the birth certificate, must undergo the second parent adoption process to secure the non biological mother’s rights to the child.

 

If you need help determining your parental rights or adopting the child (either biological or adopted) of your spouse, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations. Anthony is available to answer all questions concerning non traditional family law and adoption for GLBT families. Call 212-953-6447 or email Anthony with any questions or concerns.

 

in Adoption / Known Donor  by Anthony Brown 0 comments

2nd parent adoption of a stepchild?

2nd parent adoption of a stepchild in same sex couples: is it the right choice?

2nd parent adoption is the process of adopting the biological or adopted child of one’s spouse. While laws vary to some degree state to state, now that same-sex couples can legally marry they go through a very similar process as heterosexual couples do when adopting a spouse’s child.

Why go through 2nd parent adoption?

There are many reasons people choose to go through the process of adopting a stepchild; those reason could vary from wanting to create a strong cohesion in the family unit, to wanting the child to be able to receive an inheritance or even wanting legal rights as a parent to help make decisions on the child’s education, health and welfare.

 

When is 2nd parent adoption is not the best option?

Adopting a stepchild is a lifelong commitment and should not, under any circumstance, be taken lightly. While adopting a stepchild can strengthen a family’s cohesiveness, it’s not going to strengthen a marriage on the fritz and should not be used as a tool to try and “save” a relationship. It’s important to make sure you’re completing the adoption for the right reasons. If the parental relationship is going through bumpy times, the adoption process can add further stress and it’s probably best to wait until the parental relationship is on solid ground before beginning the adoption process. This goes for any stressful situation; if the family at large is going through a particularly stressful time, it might be best to wait.

 

My stepchild’s other biological parent is still out there. Can I adopt?

If your stepchild’s biological parent still retains their legal rights as their parent (regardless of the extent to which they participate in the child’s life), you must get them to sign an “adoption surrender” or “consent to adoption” form in order for you to begin the 2nd parent adoption process. This will relinquish their parental rights to that child. If they refuse to sign an adoption surrender, you will likely have a much harder time adopting your stepchild. In that situation, a termination of parental rights action would need to be brought against the other biological parent. Furthermore, if the child is older than 12 years of age, they will also need to consent to the adoption.

 

What else can I do?

A great way to prepare for the adoption process is with counseling. 2nd parent adoption can, and often does, yield a shift in the family harmony. Often this change is positive, but not always. It’s incredibly helpful to discuss everybody’s feelings, the ramifications of adoption, biological parents, etc. as you’re going through the legal process.

Regardless of the situation, 2nd parent adoption can be overwhelming to navigate on your own. As the head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown provides experience and expertise in 2nd parent adoption and legal proceedings with same-sex couples and families. If you’re interested in adopting your stepchild and have any questions, call 212-953-6447 or feel free email any questions or concerns.  

in Adoption / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Same Sex Partners on Birth Certificates Halted

same sex partnersArkansas Supreme Court Halts Birth Certificates For Same Sex Partners

The Arkansas Supreme Court on Thursday temporarily blocked a lower court order that allowed same sex partners throughout the state to be listed as parents on the birth certificates of their children. It let stand the birth certificates obtained by three lesbian couples who had challenged the Arkansas Health Department Vital Statistics Bureau’s refusal to identify the three couples as the adoptive or biological parents of their respective children.

Same sex partners had a previous victory with Little Rock Circuit Judge

They won approval for their listing as parents in a narrow decision by Little Rock Circuit Judge Tim Fox. The same judge then issued another decision extending that recognition statewide. The state appealed the decision that allowed same-sex partners statewide to be listed, saying it conflicted with Arkansas statutes and left birth registrars in legal limbo.

The state Supreme Court agreed and said that “the best course of action is to preserve the status quo with regard to the statutory provisions while we consider the circuit court’s ruling.”

On Dec. 1, Judge Fox held that a state law restricting parentage identification to heterosexual couples was unconstitutional in light of the U.S. Supreme Court’s decision this year legalizing same-sex marriage nationwide.

“(The) decision affords the plaintiffs, as same sex partners, the same constitutional rights with respect to the issuance of birth certificates and amended birth certificates as opposite-sex couples,” Fox wrote at the time.

Click here to read the entire article.

 

Hufingtonpost.com, December 11, 2015 – by Steve Barnes

in Adoption / In the News / Legal  by Anthony Brown 0 comments

Gay adoption facts for protecting your family

Gay adoption facts for protecting your family

As the laws in New York struggle to keep up with marriage equality, many families are left feeling vulnerable and confused about making sure their family and parental rights are as legally protected as their marriage. Here are a few gay adoption facts and common concerns and what you need to know.

We are ready to adopt a child and looking for gay adoption facts. Can adopt as a couple?

Yes. Same sex couples in New York can jointly petition for adoption, and they need not be married. This may, however, vary by state. If planning to adopt outside of New York, you will need to check the specific state laws.

We are married and having a child through surrogacy or artificial insemination. Is the non biological parent required to adopt our child separately?

In short, yes. Even though the names of both parents may be on the birth certificate, this does not automatically give the non biological parent a legal connection to their child. It’s important to create that legal bond through a stepparent adoption in the event that the relationship dissolves or the biological parent becomes deceased or incapacitated so that the non biological parent can legally maintain a relationship with the child.

How do I know which type of adoption to petition for?gay couple adoption, gay couples adopting, gay adoption facts, gay adoption statistics, lgbt adoption rights, adoption rights, gay adoption rights, gay adoptions

If you’re adopting a child together, a joint adoption will create a legal bond between the child and both parents and is in most cases the best option. If you plan on adopting the biological or adopted child of your partner, whether you are using a surrogate, sperm donor, or your partner already had a biological or adopted child, the specific type of adoption generally depends on whether there is another legal parent already established. If you and your partner are married, generally you would go through the stepparent adoption process. If you are unmarried, you would petition under the co parent or 2nd parent adoption process.

Do I need to track down the other biological parent to consent?

If you had a child through a joint adoption, then typically both parents of the child have already given up their parental rights. In the case of either artificial insemination or surrogacy, legal parentage may be addressed and established prior to the child’s birth and is much simpler if the other biological parent has already given up their legal parental rights. An “adoption surrender” may be needed if the other biological parent has never legally given up their parental rights, or if the child had another adoptive parent in the past.

Will the adoption be valid across state lines?

Yes. Once legal parentage is established through adoption, that child-parent relationship will be recognized nationally.

 

The main point to remember about gay adoption facts for families is to make sure that both parents have established a legal relationship with their children. Anthony M. Brown, the head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, is here to help you make sure that the legal bond of your family reflects your emotional and parental bond. He can help you decide the best course of action to protect your parental rights. Call 212-953-6447 or email me to answer any questions you may have about protecting your family!

in Adoption / Second Parent Adoption  by Anthony Brown 0 comments

Same sex marriage is a constitutional right?

same sex marriage

Federal lawsuit challenges anti-gay North Carolina law allowing magistrates to opt out of same sex marriage

A North Carolina law allowing magistrates with religious objections to stop performing all marriages in order to avoid performing a same sex marriage is unconstitutional, according to a federal lawsuit filed today.

The suit, brought by two same-sex couples and an interracial couple, alleges that Senate Bill 2, passed earlier this year, violates the establishment clause of the First Amendment, and the equal protection and due process clauses of the 14th Amendment.

At least 32 court magistrates in North Carolina have stopped performing marriages under the law, including all four in McDowell County, forcing the state to bring in officials from other areas to serve residents.

“This law distorts the true meaning of religious freedom,” the Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said in a release announcing the lawsuit. “From the day it was proposed, it is clear that SB2 is about one thing and one thing only — finding a new way to discriminate against same sex marriage.”

The plaintiffs include Carol Ann Person and Thomas Person (above), who were denied the ability to marry in 1976 by magistrates who said it would violate their religious beliefs against interracial marriage. A federal judge later ordered the magistrates to comply with the U.S. Supreme Court’s ruling in Loving v. Virginia, but the lawsuit alleges that Senate Bill 2 could allow magistrates to opt out of performing interracial marriages.

Lawmaker approved SB 2, part of a wave of anti-LGBT “religious freedom” legislation across the country, by overriding the veto of Gov. Pat McRory in June. The lawsuit was filed in the same court that struck down North Carolina’s same-sex marriage ban in 2014.

Click here to read the entire article.

 

by John Wright at towleroad.com, December 9, 2015

in In the News / Legal / Religious  by Anthony Brown 0 comments

Arkansas’ Cautionary Birth Certificate Tale

Birth Certificate

Arkansas’ Cautionary Birth Certificate Tale

It’s been a bumpy week for same-sex parents in Arkansas trying to both get on a child’s birth certificate —but there’s an important lesson in the case for same-sex parents in all states.

A week ago, a Pulaski County circuit judge ruled that the U.S. Supreme Court decision that legalized marriage for same-sex couples means that same-sex parents in Arkansas may have both their names put on the birth certificates of children born during their marriages. The state Department of Health, however, initially refused to do so, unsure if the ruling applied beyond the three plaintiffs, and slowed by Attorney General Leslie Rutledge’s advice not to issue amended birth certificates because she planned to appeal. The Department of Health, to their credit, seems to be issuing them anyway.

One important takeaway from all this, though, is found in Judge Tim Fox’s ruling, where he says, “Today’s decision affords the plaintiffs, as same-sex couples, the same constitutional rights with respect to the issuance of birth certificates and amended birth certificates as opposite-sex couples. That is the sum total of the legal effect of this decision.”

Those “same constitutional rights,” however, may be more limited than one might think. Fox notes that the plaintiffs list eight examples of how the lack of both same-sex parents on a birth certificate may impact their legal relationship to their children, including identification procedures for Social Security numbers and passports; denial of rights related to medical care, school-related activities, governmental- or employment-related benefits, survivor benefits, and inheritance; as well as disruption of the parent-child relationship and the award of child support in the event of parental divorce. But, he warns (my bold):

The court’s declaration today does not conclusively resolve any of those legal issues. It may create equitable and legal arguments for resolution of issues that involve only the two spouses of the same sex-marriage, such as child support or child custody. It does not in any manner resolve the multitude of legal issues that may arise involving third parties. Biological parents, mother or father, whose statutory and/or common law rights may not have been properly terminated, whether through an adoption proceeding or by the signature of surrogacy documents, are not bound by the listing of two names on a birth certificate. Other heirs claiming against a same-sex spouse estate, or attempting to disallow a minor child’s interest in the estate of one of the same-sex spouses, are not bound by an amended birth certificate. Insurance companies—life, health, or casualty—may decide in order to prevent potential duplication of claims, or liabilities not actuarially considered in premium calculations, to change their contract language to exclude birth certificates as indicia of acceptable legal relationship, and may require other documentation such as adoption decrees. In the future, government benefits, both state and federal, may key off of legal documentation other than a birth certificate. Today’s decision does not legally resolve any of those potential issues.

Click here to read the entire article.

by Mombian.com, December 8, 2015

in Adoption / In the News / Legal / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Co parent adoption post-marriage equality

What does Co parent adoption in a post-marriage equality world look like?

Same-sex couples now have the right to marriage in the United States, however, there are still some legal implications that require consideration when it comes to family law and children. It’s important to remember in any union that just because a couple is married, parental rights of biological or adoptive children of one parent do not automatically transfer to that parent’s spouse. In order for both parents to have and practice their legal rights to make decisions for that child’s education, health and welfare, the family, in most cases, must complete a co parent adoption.

What is co parent adoption?

Co parent adoption is a legal procedure that allows a same-sex parent to adopt their partner’s biological or adopted child. This is similar to the stepparent adoption process. This gives the non biological or non adoptive parent parental rights towards the child.

 

Is going through all that paperwork really necessary?co parent adoption, co parent adoptions, second parent adoption new york, second parent adoption, second parent adoptions

In short, yes. While couples intend to stay together forever, break ups happen. In the event of a break up, if one parent hasn’t gone through the adoption process they may lose their rights to custody in the ensuing proceedings. The same goes in instances of death. If something should happen to the only legal parent of the couple’s children, making decisions thereafter for the child or children could be difficult if adoption proceedings have not been completed.

 

Why do we need co parent adoption if we are married and started our family together?

The only way in which a same-sex couple doesn’t need to go through a co parent adoption procedure is if they petitioned jointly to adopt their child or children. Until the Supreme Court decision of June 2015, the option of joint adoption by same-sex couples varied state to state. If the child is one parent’s biological child, as in the case of a surrogate or sperm donation, the other parent will still need to go through the co parent adoption process.

 

The adoption process can be an overwhelming endeavor. Whether you have already started the great adventure of parenting or are just beginning the process of starting your family, it’s important for same-sex parents to make sure all the legalities are both understood and taken care of. As the head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown specialises in co parent adoption and is here to help you navigate the ins and outs of same-sex legal issues and adoption. If you have any questions, don’t hesitate to call 212-953-6447 or drop me an email.

in Adoption / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments