Step Parent Adoption; Married still need one?

Step Parent Adoption; Marriage means I don’t need one?

Step Parent adoption is still a must to secure your family, even after marriage equality.  Marriage equality was a long fought battle and a much celebrated victory for gay and lesbian couples across the country. Now that it is the law of the land, many people mistakenly believe that their marriage alone will secure their family. Unfortunately family law has not caught up to the realities of how we create our modern families.

For both gay and lesbian couples, securing the legal rights of a non-biological parent is crucial to create the kind of emotional, and legal, security that most other families take for granted. The legality of both parents relationship to their child is often assumed. Parents are parents, regardless of the biological connection to your child. In New York State, the law doesn’t agree.

Married lesbian couples in many states, New York included, can list a non-biological mother name as a parent on a child’s birth certificate if they are married at the time of the birth of the child and they use an anonymous sperm donor. While a name on a birth certificate is an important goal, it in itself does not create a legal relationship, only through step parent adoption can they be acheived.

Step Parent adoption is still a must to secure your family, even after marriage equality.

In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically.  The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.”  Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

While it is true that many states have what is called a “martial presumption of parentage,” the truth about this is that it is applied differently in different states.  For instance, in New York State, where I practice, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples.  That case is called “Matter of Paczkowski v. Paczkowski.”  In that case, the appellate division of the Second Department of New York, the state’s intermediate appellate court, held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child.  While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through an adoption order, and in some states, a parentage order.  Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that. 

Surrogate Options & Known Donors Complicate the Legalities of Chosen Families

One further compounding variable is that many lesbian couples are now choosing known sperm donors. While the desire for a child to know their biological heritage and have a father figure makes sense to many couples, adding another potential parent into the mix can create problems if an adoption does not take place to terminate the donor’s rights to the child and create the intended, non-biological parent’s rights to their child.

For male couples who want to have biologically related children, surrogacy is the only real option. Surrogacy is an emotionally, and financially, exhausting process.  It is a true leap of faith.  Couples considering surrogacy must juggle a myriad of concerns, the least of which being the cost.  With gestational surrogacy tabs running as high as $180,000.00, budgeting is a must.  Lawyer’s fees are often lumped together in surrogacy accounting statements, and some agencies do not include the cost of a second or step parent adoption in order to keep the numbers low.  Often, the cost of a pre-birth order is less than a second parent adoption.

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In some cases, depending on where your surrogate mother gives birth, her name may be removed from the child’s original birth certificate by a proceeding called a pre-birth order.  Some states do not provide for pre-birth orders.  Those that do may or may not replace the surrogate’s name with that of the non-biological intended parent.  California, for instance, does offer the ability to include the non-biological parent’s name on the child’s original birth certificate, and that very significant step is often mistakenly viewed as a replacement for a second parent adoption, which is the only definitive way to establish parental rights between a non-biological parent and a child born through surrogacy.

In order to understand why a second parent adoption is vital if you have a pre or post-birth (or parentage) order, you must understand what that order is, and what protections it provides.  Pre and post-birth orders are court orders that are obtained by filing a petition in the appropriate court in the state in which the child will be born.  Often, these petitions are not filed in the county where the carrier lives, but in a county which has a judge who understands the importance of these orders and grants them upon the motion of an attorney representing the intended parents.  This in itself may create a problem.

Some states may not recognize the relationship created by the pre-birth order because of the lack of a full judicial process attendant to a parentage order.  For an issue to be precluded from challenge, for instance the issue of a non-biological parent’s relationship to a child born through surrogacy, the court looks at the process by which that issue has been established.  The reason why adoption orders from one state are valid in every state, regardless of the gender of the parents, is because the judicial process of the adoption.  The state, for all intents and purposes, becomes and “adversary” to the adoptive parents in the adoption process.  The state performs background checks, it orders that fingerprints be taken, mandates that a home study is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies all adoption requirements submitted by the petitioning parent, or parents.  The adoption order is the product of a fully litigated judicial process.  Because this rigorous process is not part of a parentage order proceeding, states which do not offer such orders may not recognize a relationship created in one.

Furthermore, some courts, through a parentage order, will add the name of the non-biological parent to the original birth certificate if that person is married to the biological parent.  For same-sex couples, this can present an issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that resists same-sex marriage.  These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

Protecting our families may seem like navigating a ship through a sea of legal, financial and emotional waters.  But what is more important than the security of knowing that every child has a legal relationship with their parents that cannot be challenged for whatever reason. Every parent deserves that security as well.

by Anthony M. Brown – September 16, 2015

Anthony M. Brown, Esq. currently is an associate with the law firm of Albert W. Chianese & Associates heading their Nontraditional Family and Estates Law division serving unmarried individuals, couples and families in Manhattan and on Long Island.  Anthony is the Executive Director of The Wedding Party and has been a Board member since its inception in 1999.   The Wedding Party is a non-profit educational organization that educates the public about marriage and its importance to all citizens through outreach programs and strategic media placement. Anthony is the founder of TimeForFamilies.com, a web environment dedicated to assisting gay and lesbian couples create their own families. Anthony is the Board Chairman of Men Having Babies, a non-profit organization created to assist gay men looking create families through surrogate options and is a legal consultant for Family By Design, a co-parenting information and matching website.

 

 

in Adoption / Anonymous/Known Donation / Featured Articles / Known Donor / Legal / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Adopted Kids: From Guatemala,Complicated Legacy!

Adopted Kids: For US adoptees from Guatemala,

It’s A Complicated Legacy!

 

Scattered across the United States are more than 29,000 adopted kids born in Guatemala and adopted by U.S. families before that troubled Central American nation shut down international adoption in 2008 amid allegations of rampant corruption and baby-selling.

Today, as adopted kids come of age, many want to know about their birth mother and why she gave them up and wonder about the murky circumstances of adoption. Some have traveled to Guatemala to investigate.

“Guatemala was all I could think about,” said Gemma Givens, a 25-year-old adoptee in California, who has made two trips to the country to learn what she could.

“I was just a mess,” she said, “the questions, the wondering, the pain, the desire to heal and to figure it out.”

International adoptions from Guatemala began to surge after a 36-year-civil war ended in 1996. Tens of thousands of civilians disappeared or were killed during the conflict, leaving legions of children without care. Orphanages overflowed, and American families seeking to adopt soon learned there was a vast supply of infants being made available.

By 2006, more than 4,000 Guatemalan children annually — about 1 of every 100 babies — were being adopted by American families, and the small country became the second-largest source of adoptees after China. Huge sums were at stake — American families routinely paid $30,000 or more to Guatemalan lawyers to arrange an adoption.

Then, as evidence of corruption mounted, the pipeline closed. Adoptions to the U.S. dropped to 27 last year.

Roughly half of all the adoptions by Americans entailed some type of impropriety — from outright abduction of infants by Guatemalan racketeers to baby-selling to various types of coercion and deception that induced mothers to relinquish their children, according to Carmen Monico of Elon University. The professor of human service studies has conducted extensive research on adoption in Guatemala.

Monico expressed empathy with adopting families, saying, “They had their hearts in the right place.” But she also has documented the experiences of Guatemalan mothers who believe their children were abducted to meet the demand.

“Some of these women have been searching for their children for years,” Monico said. Uncertainty also has weighed heavily on adoptive parents.

“After we brought our son home, I became more and more concerned,” said Laura Hernon of Seattle, who with her husband adopted a boy from Guatemala in 2008, just before the shutdown. She wondered, “Is there a mom who was duped out of her baby?”

The couple investigated, and determined anew that the adoption was legitimate.

Click here to read the entire article.

 

September 6, 2015 – by David Crary – TheNewsTribune.com

NEW YORK

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Adoption Rights: The next frontier for Alabama

Adoption rights: The next frontier for gay Alabama couples two months after marriage ruling

For a handful of Alabama’s family-minded gay couples, first came love, then came marriage, then came bureaucratic headaches, legal bills and months of waiting. Adoption rights are the next frontier for gay Alabama couples two months after marriage ruling.

They’re not looking to become the state’s first gay divorcees, though that milestone is likely not far off if it has not already been reached. These couples are instead looking to take the traditional next step of expanding their families now that their weddings and honeymoons are in the rear-view, and they are specifically interested in adopting a child.

Even a year ago, the idea of gay Alabamian couples embarking on the path toward married parenthood would have been inconceivable for many Alabamians.

But the Supreme Court cleared the path for achieving that goal with its landmark gay marriage ruling less than two months ago, and a number of gay Alabama couples are facing the myriad challenges that all couples seeking to adopt must overcome, in addition to some that are specific to would-be adoptive parents of the same gender.

Newlyweds Clay Jones and Joe Babin are at the vanguard of the small but growing list of gay Alabama married couples seeking to adopt an infant. As of last month the Irondale residents have passed the background checks, screenings, physical examinations, financial assessments and other evaluations required of all couples of any sexuality hoping to adopt, and now they are “just waiting on a baby,” according to Babin.

Jones, 41, and Babin, 39, say that they are at a stage in their lives mentally, emotionally and financially where they are ready to have a child, and that the timing just seems to be right given their circumstances, their age and the political developments of the past year.

“We’re ready to go. We kind of made the decision that we were ready and we knew we financially and mentally had some stability to offer, that we were going to try to do it. So then we were at the point where we can now, and then we got married. So I mean I feel good that it’s going to happen,” Jones said. “[With] what’s happening in the south of the United States and what’s happening in Alabama, it’s time. I feel like it’s time that it will happen.”

Click here to read the entire article.

 

 

by Connor Sheets, AL.com, August 16, 2015

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Same Sex Couples Challenge Adoption Ban

Mississippi Ban on Adoptions by Same Sex Couples Is Challenged

When Mississippi adopted a one-sentence law forbidding adoptions by same-sex couples in 2000, it was not so surprising: For decades, gays and lesbians in several states had run into roadblocks when they sought to adopt or foster children. So it was a potent marker of how fast laws and attitudes on gay rights issues have changed on Wednesday when civil rights lawyers filed suit in federal court challenging the law.

Mississippi’s ban is now the only one of its kind in the nation. And legal experts said that in the wake of the United States Supreme Court’s decision upholding same-sex marriage it was highly unlikely the state’s ban could hold up in court. The lawsuit was filed by the Campaign for Southern Equality, the Family Equality Council and four Mississippi same-sex couples.

“We’ve come so far here just recently, it’s pretty amazing the speed of the change,” said Janet Smith, a plaintiff in the case, who is seeking to adopt the 8-year-old daughter, Hannah Marie Phillips, she is raising with her wife, Donna Phillips. Because of the adoption ban, Ms. Smith has no official status in Hannah’s life, Ms. Phillips being her only legal parent.

“We’ve had no problem, but I am in the military, so I could be called or activated at any time, and we are concerned about the legal aspects for Jan if something happened,” said Ms. Phillips, who is a captain in the Mississippi Air National Guard.

At one point, they tried to find someone who would do the home study that would be a requirement for adoption, but could not find anyone who would come to their home to do it. Both women are cautiously hopeful that the lawsuit will quickly change their situation. “It seems like it’s just the logical next step, but oftentimes Mississippi doesn’t take the logical next step,” Ms. Smith said.

29% of same sex couples raising children

Last year, 29 percent of Mississippi’s same-sex-couples were raising children under 18 in their households — the highest percentage of any state in the nation, the complaint said.

“The Mississippi Adoption Ban writes inequality into Mississippi law by requiring that married gay and lesbian couples and parents be treated differently than all other married couples in Mississippi, unequivocally barring them from adoption without regard to their circumstances,” the complaint said. It called the ban “an outdated relic of a time when courts and legislature believed that it was somehow O.K. to discriminate against gay people simply because they are gay.”

Neither the governor’s office nor the state attorney general’s office returned messages Tuesday afternoon, asking whether the state would fight to uphold the ban against the challenge.

Roberta Kaplan, the New York lawyer handling the case, said that after the Supreme Court ruling, it seemed obvious to her and her clients that “the time was right to challenge the adoption ban and get it cleaned up.”

That the case now seems more likely to be a mop-up operation than an all-out legal confrontation is an indicator of just how swiftly the social change has taken hold.

Click here to read the entire article.

New York Times, August 12, 2015 by Tamar Lewin

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Same Sex Adoption Ban Struck Down

Mexico Supreme Court Strikes Down Same Sex Adoption Ban

Mexico’s Supreme Court ruled Tuesday that a 2013 law in the southeastern state of Campeche that forbids same sex adoption of children is unconstitutional and struck it down. The challenge to the ban was filed by the state’s human rights commission. Supreme Court Judge Margarita Luna announced her intention to present the motion on a federal level in early July. Gay marriages and adoption laws are largely legal in the country’s heartland, though several far-flung states witness more opposition.

The state law was struck down in a 9-1 ruling. Presiding Judge Luis Maria Aguila said the decision was made keeping in mind the protection of adopted children. “I see no problem for a child to be adopted in a society of co-existence, which has precisely this purpose. Are we going to prefer to have children in the street, which according to statistics exceed 100,000? We attend, of course, and perhaps with the same intensity or more, to the interests of the child,” Aguila said, according to Latin American news network TeleSUR.

In June, the apex court also ruled that it was unconstitutional to deny marriage to people of the same sex — a ruling that came shortly before a similar one from the U.S. Supreme Court. The Mexican court ruling does not legalize same-sex marriage nationwide, but opens the door to couples seeking marital recognition to pursue injunctions against states.

In Mexico, gay marriages were first legalized in the capital Mexico City in 2009, in a ruling that was upheld by the country’s highest court. Same-sex couples who married under the city’s law have been adopting children since 2010. In addition, same-sex marriage rights are fully recognized in the states of Chihuahua, Coahuila, Guerrero and Quintana Roo.

Click here to read the entire article.

International Business Times – August 12, 2015 By  

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A Mexican Judge Wants to Allow Same-Sex Couples to Adopt Children Nationwide

July 15, 2015 – towleroad.com via The Global Post – By Ioan Grillo

MEXICO CITY — The Mexican capital’s churches have a new challenge: where to seat same-sex parents during their adopted child’s baptism.

Traditionally, the father sits on the right, the mother on the left. But since a law reform in 2009, various same-sex couples have brought their adopted children to be baptized.

“It creates confusion. So we normally seat them in the order of how they appear on the register,” says the Rev. Hugo Valdemar, spokesman for the archdiocese of Mexico City.

The Roman Catholic Church is against same-sex marriage and opposes adoption by gay and lesbian couples. But it will not refuse to baptize any children.

That baptism seating dilemma could soon be shared across this very big country.

Mexican Supreme Court Judge Margarita Luna announced on July 6 that she will present a motion to make it unconstitutional to deny adoption to same-sex couples.

This would make adoption laws already approved in the Mexican capital, a heartland of socially liberal reforms, effective throughout the country, including in much more conservative states.

In June, Mexico’s high court also ruled it unconstitutional to deny marriage to people of the same sex — shortly before the US Supreme Court did exactly the same thing.

Under a leftist city assembly, Mexico City became the first place in Latin America to legalize gay marriage with the 2009 reform. Adoptions by couples who married under this law have been taking place since 2010.

The northern state of Coahuila, which borders Texas, also legalized gay marriage, in September 2014. And last month, two women became the state’s first same-sex couple to adopt a child.

Still, nationwide, Mexico is not exactly the bastion of liberalism it may sound like. Eighty-two percent of Mexicans identify themselves as Catholic, according to the census. And more staunchly conservative parts of the country are pushing in quite a different direction from Coahuila and Mexico City.

Click here to read the entire article.

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Alaska issues first birth certificates to same-sex parents

KTVA.com, July 7, 2015 by Shannon Ballard

ANCHORAGE–   Like most people who haven’t lived in Alaska long, Amanda and Pam Bowers learned quickly to get outdoors.

On Tuesday they went for a walk around Kincaid Park. Amanda carried their 8-week-old daughter Ellie Lou Bowers strapped to her chest.

“She was born in Alaska so we have to get her out there to see as much as she can,” Amanda said.

The couple has been legally married since 2008. Amanda gave birth to Ellie but both of the new moms say motherhood feels so natural, which is the reason the Bowers want each of their names on Ellie’s birth certificate.

“Even though I didn’t carry her, she’s my baby, she’s my daughter,” Pam said.

However, Alaska statutes didn’t give that option. If a mother is married when she gives birth, the father’s name would appear on the birth certificate, according to Alaska’s laws. That didn’t apply to the Bowers’ case, as well as several other same-sex couples.

“What would happen is we’d have to go through second parent adoption procedures, which involve getting a lawyer and thousands of dollars,” Pam explained.

But now all that has changed. Acting State Register Andrew Jessen says the statute has been reworded: the word “father” has been replaced with “spouse.”

Click here to read the entire article.

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Supreme Court gay marriage decision could end debate over children’s well-being

Mashable.com June 21, 2015 by Rebecca Ruiz

Matthew Mansell and Johno Espejo are like most American parents. They juggle work and family, try to keep up with household chores, and spend weekends with their two children, Wyatt, 8, and Elyse, 7.

Saturday nights are a special occasion. Mansell’s mother, who lives with the family in their Placentia, California home, treats everyone to dinner at a local restaurant. They come home, pile on the couch, and watch a movie selected by one of the kids. Most recently, Elyse chose the animated children’s movie ParaNorman.

It would all be rather ordinary — except for the fact that Mansell and Espejo are plaintiffs in Tanco v. Haslam, which has been consolidated with four other lawsuits under Obergefell v. Hodges, a landmark case before the Supreme Court challenging same-sex marriage bans in Michigan, Tennessee, Ohio and Kentucky. (The couple lived in Tennessee when they filed the original suit.)

While the case disputes the constitutionality of gay marriage bans, it also raises emotional questions about whether children of such couples are somehow worse off than the offspring of straight couples. An estimated 122,000 same-sex couples in the U.S. are raising more than 200,000 children, according to the Williams Institute, a think tank at the University of California, Los Angeles.

Though decades of research show no emotional or psychological harm, opponents of same-sex marriage argue the possibility of such a thing is a compelling reason to prohibit gay unions. This line of reasoning is central to the defense of Michigan’s ban.

When the Supreme Court rules on the case in the coming weeks, its opinion could very well render that argument irrelevant. Mansell would welcome such a decision, but doesn’t need the Supreme Court to say what he already knows.

Click here to read the entire article.

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Michigan Legislation Allows Adoption Agencies to Reject LGBT Parents

Reuters via New York Times – June 10, 2015

(Reuters) – Adoption agencies in Michigan would be able to refuse service on religious grounds to homosexual couples who want to adopt children under three bills that the state’s Republican-controlled Senate passed on Wednesday.

The bills, which must be signed by the governor to become law, say child-placing agencies shall not be required to provide adoption services under circumstances that conflict with their sincerely held religious beliefs contained in a written policy or other document. The agencies are private, but receive state funding.

While the bills do not specifically mention lesbian and gay couples, they are viewed as narrow versions of religious freedom acts passed in a number of states to shield businesses that want to refuse service to same-sex couples from discrimination lawsuits.

Supporters say the acts protect religious freedoms, while others say they are licenses to discriminate. With 37 states now allowing same-sex marriage, the Supreme Court has taken up the issue this year and conservative groups are turning toward backing religious-freedom laws from fighting recent battles on gay marriage.

Click here to read the entire article.

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

Gay adoption ban stricken from Florida laws after 4 decades

AP via The Tampa Tribune

TALLAHASSEE – The nearly four-decade-old law that prevents gays from adopting children will disappear from Florida’s statutes on July 1.

Republican Gov. Rick Scott signed a bill today that removes the language – though the ban hasn’t been enforced for the past five years.

The bill signed by Scott also promotes adoption, but the original language was changed to include a provision removing the gay adoption ban from state law.

While conservative Republicans objected to the idea, others said that it simply changes the law to reflect reality.

A judge ruled five years ago that the state’s ban was unconstitutional.

Click here to read the entire article.

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