Alabama appeals court denies Mobile woman right to adopt partner’s son

By Brendan Kirby – October 12, 2012 – AL.com

MOBILE, Alabama –€“ Cari Searcy considers herself the parent of 6-year-old Khaya in every important way, but an Alabama appeals court ruled today that legally, she is not.

The Alabama Court of Civil Appeals upheld a decision by Mobile County Probate Judge Don Davis to deny Searcy’s adoption petition. Although she has been with her partner, Kim McKeand, for 14 years – and legally married her in California in 2008 – the court ruled unanimously that Alabama law does not recognize same-sex unions.

“Of course, I was disappointed, but I guess we were kind of expecting it,” Searcy said this evening. “But you always hope for the best.”

Searcy said she and McKeand have discussed appealing the ruling to the Alabama Supreme Court or, perhaps, taking the case to federal court. But she said she has made no decisions.

Searcy’s lawyer, Vivian Beckerle, said the cost of an appeal is one of the factors her client will have to consider.

“It does begin to get expensive to carry it forward,” she said. “I’d like to see them do it, because it is something the state needs to confront head-on.”

This is the second time Searcy has tried to adopt the child. Davis denied an earlier petition in 2006, ruling that the adoption was not permissible because Searcy and McKeand were not married.

Contest paid for marriage trip to California

In 2008, the San Diego Convention and Visitors Bureau held a contest asking same-sex couples from other states to write about why they wanted to get married. Searcy, who owns a video production company, said she made a YouTube video chronicling her story and won a trip to the Golden State in September of that year.

Searcy also has told her story on a documentary entitled, “I am a Parent.”

After California voters made same-sex marriage illegal again in a hotly contested referendum, Searcy said, she and McKeand waited to see how the courts would treat marriages that occurred before the vote. Ultimately, the California Supreme Court ruled that those marriages would stand.

In Mobile, valid marriage license in hand, Searcy again petitioned to adopt Khaya.

“We’re not asking for the state to legally marry us,” she said. “I’m just asking for the right to legally adopt our son so I can make medical decisions for him, educational decisions, the normal parental things.”

It is not merely a theoretical exercise.

Click here to read the entire article.

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

Same-Sex Adoption Flip-Flops: The Unbearable Lightness of Mitt Romney’s Convictions

When will Mitt Romney get it?  The sheer number of contortions he has performed on the issue of adoption by gay and lesbian parents has earned him a gold medal for political flip-flopping. He’s morphed from the congenial former governor of blue-saturated Massachusetts, where gay adoption is both legal and supported by a majority of the populace, to the Republican candidate for president in a party that has lurched far right for a cuddle in the arms of anti-equality crusaders.

Apparently, behind the scenes at last month’s Republican National Convention in Tampa, there was quite a showdown between social conservatives and more moderate voices over whether or not to add language to the GOP platform condemning adoption by same-sex couples. Socially conservative members of the GOP platform committee attempted to wrestle their opposition to gay adoption into the formal document.  Insiders report that members of the committee belonging to the Log Cabin Republicans, a national political organization that represents gay and lesbian issues, torpedoed the attempt. As for Romney?  It seems he remained mute on the issue.

Currently, gay adoption laws vary widely across the United States.  Openly gay couples are legally permitted to adopt in just 13 jurisdictions (D.C., New Jersey, New York, Indiana, Maine, California, Connecticut, Illinois, Massachusetts, Oregon, Vermont, Florida, and Guam), and although single gay and lesbians are generally able to adopt, most states continue to ban adoption by gay couples.  (As a side note, Paul Ryan has sided with those who oppose equal parental rights for gays and lesbians, voting against allowing gay adoptions in the District of Columbia).

So, where is Romney on the issue?  Well, a better question might be: Where isn’t he?  Over the past several years he’s taken both sides of the issue and filled in each with shades of grey.

In 2006, while he was working to exempt religious organizations from allowing gay couples to adopt in Massachusetts, he told the Boston Globe, “I know that there will be some gay couples who will say that this could be discriminatory against us, except that there are many, many other agencies that can meet the needs of those gay couples, and I recognize that they have a legitimate interest in being able to receive adoptive services.”

Click here to read the entire article.

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

Gay dads, 12 kids are officially a family

by Karina Bland – Aug. 11, 2012 – The Republic

Steven and Roger Ham, gay men raising 12 children adopted from foster care,  were recently named to Esquire magazine’s list of the 10 best dads of  2012. But the two had no idea until it was pointed out to them.

They’re a little busy.

Steven spent six years at home taking care of the growing family. In January,  he went back to work full time now  that Olivia, the youngest, is 3 and eager to go to preschool like her  siblings.

Roger, who works as a school-bus driver and had the summer off, took 11 of  the kids on a three-week, 4,248-mile road trip that involved four DVD players,  three iPads, a 11/2-pound dog named Zeus and a tiny  orange kitten that Elizabeth, 13, found recently.

Vanessa, 17, the oldest, bailed out of the 15-passenger van at their first stop in  Las Vegas. She opted for a sibling-free visit with Steven’s brother and his wife  while the rest of the clan headed up the West Coast, camping near beaches along  the way to Washington state to visit family, and then back to San Diego.

The family appeared in a story last year in The Arizona Republic  chronicling the dads’ efforts to adopt in Arizona.

Roger and Steven, partners for almost 19 years, have pieced together their  large family here in Arizona, where two men can’t marry and where conservative  lawmakers have tried a half-dozen times to keep single people, including gays  and lesbians, from adopting foster children. Last year, lawmakers passed a bill  that moved married couples to the top of the waiting list for adoptions.

After the story, the pair got calls from journalists around the globe and  accolades from human-rights groups.

The publicity even garnered Steven, 44, and Roger, 48, two spots among 10  fathers “who showed us how it’s done” in an issue of Esquire dedicated to  fatherhood.

Amid all this, they also got a phone call from Washington state that would  bring their family even a little bit closer.

Click here to read the complete article.

in Adoption / Family Stories / Parenting / Personal Stories  by Anthony Brown 0 comments

First inscription of two fathers in Argentina

Tomorrow morning, in Buenos Aires, the first inscription of the birth of a baby with two fathers will be done in Argentina. Tobías is a boy who was born a few weeks ago in India after a surrogacy process. He’s now arrived to Argentina and both his fathers will be registered with no distinction between the biological one and the other one.

 

Although Marriage Equality Act states that no difference should be made between children of same or different sex couples, and besides the fact that many birth certificates with two mothers have already been made, it wasn’t easy to get to this point as the Civil Registry was at first reluctant to do it, but the work of the Legal Staff of the FALGBT made it possible. I want to recognize my colleagues at that point.

 

Moreover, a modification to Argentina’s Civil Code is being debated in the Congress which would made this kind of registrations standard in all the country. We’ll keep you up to date about this process.

 

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To adopt, or not to adopt… Really?

March 20, 2012 (See 2015 addendum @ the bottom of the article.)

Legal Surrogacy – To adopt, or not to adopt…???

adoptSurprisingly, that has been one of the most asked questions by parents of children born with the assistance of a surrogate mother.  In many cases, the carrier’s 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 carrier’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 legal surrogacy.

Legal 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 $150,000.00, 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 parent adoption in order to keep the numbers low.  Often, the cost of a pre-birth order is less than a second parent adoption.

In order to understand why a second parent adoption is vital, you must understand what a pre-birth order is, and what protections it provides.  Pre-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 pre-birth 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 pre-birth 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 homestudy is performed by a licensed social worker to ensure that the child’s prospective residence is safe and clean and essentially verifies that all adoption requirements 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 pre-birth order proceeding, states which do not offer pre-birth orders may not recognize a relationship created in such an order.

Furthermore, some courts, through a pre-birth 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 a fatal issue, particularly if the non-biological parent’s relationship to the child is being challenged in a state that does not recognize same-sex marriage.  These situations usually arise upon the dissolution of a relationship and during the custody/visitation/support aspect of that process.

In New York County, Legal Surrogacy Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian[i] 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, “that although [the] petitioner [non-biological parent] already has a legally protected parental relationship with Sebastian [through a marriage recognized in New York] and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time consuming methods of establishing one, 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…”.

The Matter of Sebastian case is an amazing confluence of family law, Constitutional law and reproductive law, with the ultimate conclusion that same-sex parents need to adopt to secure the non-biological parent’s rights to their children.  It is a broad and definitive statement that applies to all same-sex families, regardless of how their children were conceived.

While parents going through legal surrogacy must navigate financial and emotional waters, as well as an unsure legal landscape, the last step in the process, the second parent adoption, may seem like an afterthought.  It is, however, the only way to complete the process and ensure that each parent has a permanent and portable legal relationship with the child.

 

 

ADDENDUM (July 17, 2015) – It seems like ages ago when I wrote this piece, and the gay rights movement has literally transformed the world in those short 3 years.  While marriage equality is the law of the land in the United States, many people misinterpret this truly revolutionary civil rights gain as having the same transformative and direct effect on family law, specifically as it applies to the rights of a non-biological child to their bio parent’s spouse, even if achieved through legal surrogacy. 

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 (as echoed in “Matter of Sebastian” as mention in the body of this article) 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. 

In our ever evolving world where gay couples and, more particularly, gay families are becoming more common place and understood, there are still areas of the law that directly affect our lives that continue to fall short of protecting our families in the ways that they must be protected.  Creating family security is of the utmost importance and it is the responsibility of every gay parent to make sure that happens.

 

 

 

 

[i]  http://www.nylj.com/nylawyer/adgifs/decisions/041009glen.pdf 25 Misc.3d 567, 879 N.Y.S.2d 677 (N.Y. Co. Sur. Ct. 2009)

in Adoption / Featured Articles / Surrogacy  by Anthony Brown 0 comments

Gay adoption ban survives in Va. Senate

WAVY.com, February 17, 2012

RICHMOND, Va. (AP) – With little debate, a Senate committee has endorsed a House-passed bill allowing private child placement agencies to deny adoptions for gays or others who offend their religious or moral teaching.

The measure heads to the Senate floor after an 8-7 party-line vote Friday in the Republican-dominated Rehabilitation and Social Services Committee. The Senate has already approved a similar bill and sent it to the House.

Mindful of the earlier defeats and the inevitability of the same outcome, committee Democrats largely held their fire except for Sen. Mark Herring.

He told the bill’s patron, Del. Todd Gilbert, that it was a bad bill full of harmful consequences, both intended and unintended.

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Virginia: Bill Allowing Adoption Restrictions Advances

February 10, 2012
New York Times
By THE ASSOCIATED PRESS

The State Senate passed legislation on Thursday allowing private adoption agencies to deny placements that conflict with their religious or moral beliefs, including opposition to homosexuality. The mostly party-line vote virtually ensures the Republican-backed bill will become law. The House has an identical bill, and Gov. Robert F. McDonnell says he will sign it. Virginia would become the second state with such a law, which supporters modeled after North Dakota’s. Senator Jeffrey L. McWaters said his bill protected the religious rights of private child placement agencies, including dozens that contract with the state. Opponents say agencies that contract with the state should not be allowed to discriminate. Senator Adam Ebbin, the only openly gay member of the General Assembly, said the bill would endanger gay and bisexual children by letting agencies place them with parents opposed to homosexuality.

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Proposed bill would allow same-sex, live-in couples to adopt in Utah

Aaron Vaughn, Web Producer

FOX 13 News

11:24 a.m. MST, January 25, 2012

SALT LAKE CITY—
If passed, Sen. Ross Romero’s Adoption by a Co-parent Bill would allow gay couples, or any unmarried couple living together, to adopt.

“Some people may not want to marry or some people may not be able to marry, so this could apply with equal force if they were sisters,” says Romero, giving a hypothetical example. “One sister moved in with another sister and one of the sisters from a previous marriage had a child. They could not legally marry.”

The two could legally be parents to the same child if the bill passes. However, it may be a tough sell to the Utah Legislature given that the bill failed last session.

“I think it would be impossible of me to assume the intentions of the legislators who determine the fate of a bill like this one,” says Executive Director of Equality Utah Brandie Balken.
Balkan says the bill would have substantial impact on the state’s lesbian, gay, bisexual and transsexual community by allowing them to adopt. But Romero says the bill is more than just about LGBT rights, but about parental rights, gay or straight.

“What this bill says is ‘I know what is best for my child and it will be judged on what’s in the best interest of the child,'” Romero explains.

Romero says the parent could be able to designate a co-parent to raise the child, whether that person is a sister, brother, or significant other.

Although Romero is not convinced it will pass this year, he says it is important to keep the dialog going and believes one day it will pass.

in Adoption / In the News  by Anthony Brown 0 comments

Virginia To Consider Opposing Gay Adoption Bills

By On Top Magazine Staff
Published: January 22, 2012
Virginia lawmakers are set to consider opposing gay adoption bills, the AP reported.

Democratic Senator Adam Ebbin is the sponsor of a bill that would bar the state from funding adoption agencies which discriminate against foster or adoptive parents based on sexual orientation or gender identity.

“One major issue is whether charities that receive tax dollars should be able to discriminate,” Ebbin said. “Adoption is a public act that goes through state courts, and no government agent should engage in discrimination.”

Ebbin’s proposed measure would reinstate protections removed last month by the Virginia Board of Social Services. The board’s new regulations, which strip out protections against discrimination based on gender, age, religion, disability, sexual orientation and family status, take effect May 1.

A competing bill, however, would reinforce the board’s move.

Senator Jeffrey McWaters and Delegate Todd Gilbert’s proposal would allow adoption agencies to discriminate against prospective foster or adoptive parents who are gay, if doing so is supported by the organization’s religious beliefs.

“We just want to ensure that people can continue to abide by their religious beliefs and continue to provide services consistent with those beliefs,” said Gilbert, a Republican from Woodstock.

in Adoption / In the News  by Anthony Brown 0 comments

I.R.S. Denying Lesbians Legitimate Adoption Credit

New York Times
December 13, 2011
By TARA SIEGEL BERNARD

Since the federal government does not recognize same-sex marriage, such couples are viewed as strangers in many spheres of their financial lives. They need to file separate federal tax returns, for instance. And sometimes, that can come with certain advantages.

Take the adoption tax credit. If you adopt your spouse’s child, you cannot claim the credit. But since same-sex married couples are not considered spouses under federal law, they are permitted to use the credit — at least until their unions are recognized.

So when several lesbians seeking to adopt a partner’s child received letters from the Internal Revenue Service that said they could not use the credit, they couldn’t help but wonder: Is the government choosing to recognize our unions only when it’s to the government’s benefit?

As it turns out, the I.R.S. keeps close tabs on many refundable credits: The adoption credit is refundable in 2010 and 2011, which means that the credit reduces the amount of tax you owe, dollar for dollar. And if the amount of the credit exceeds your tax bill, you get to collect that extra cash. Because it’s such an enticing break, it’s also ripe for abuse.

As a result, the I.R.S. conducted more audits by mail last year, and required many couples — gay and heterosexual — to provide more documentation. (In fact, 68 percent of the nearly 100,000 returns on which taxpayers claimed the adoption credit were audited by mail, according to a report by the Government Accountability Office, which reviewed the I.R.S.’s strategy to ensure taxpayers were rightfully claiming the credit.)

But at least two of the reasons that the I.R.S. gave to the lesbians who it turned down were not rooted in the law, according to Patricia Cain, a professor at Santa Clara Law and an expert on sexuality and federal tax law, who blogged about the topic and has assisted some couples who were denied.

The most common explanation for the denial, she said, was that the birth mother did not terminate her rights as part of the adoption. And while it’s typical for many birth mothers to do so when her child is being adopted, that’s obviously not something a lesbian birth mom would do when her partner is simply performing a “second parent” adoption. Nor is there anything in the tax code that requires the termination of parental rights, Professor Cain said.

Another reason the I.R.S. provided for the denials: the adoptive mother is the domestic partner of the birth mother. But again, she said there is nothing in the tax code that says domestic partners cannot claim the credit. “Nobody thinks the adoption credit was created to help lesbian mothers,” Professor Cain said. “But they are certainly entitled to it as long as the clear meaning of the statute grants it to them.”

The report from the Government Accountability Office said that the I.R.S. didn’t adequately inform its tax examiners regarding certain aspects of the adoption credit. So you can argue that the I.R.S. probably didn’t give them specific instructions on how to handle adoptions with same-sex parents either. A spokesman for the I.R.S. said that they were aware of an isolated number of cases where they made a mistake, and that they corrected the errors after they were notified by the taxpayers. In a statement, the agency said that it regrets the inconvenience and that it has provided more training to the examiners on this issue.

The credit, which is for as much as $13,360 in 2011, can only be used once. So if two men, two women, or two other unmarried people adopt a nonbiological child, only one adoptive parent can claim the entire credit or they can split it.

If you or your partner receive any notices from the I.R.S. requiring more information during this coming tax season, send your response to the I.R.S. within the time period allotted. “Most taxpayers, after pushing back hard, have had the credit allowed,” Professor Cain added.

That is the result that Beth Jennings is hoping for. She said that her partner, Coleen Jennings, adopted her biological daughter, Hazel, in 2010, four months after she was born. A couple of months after filing her return, she received a letter from the I.R.S. stating that the adoption credit was under investigation.

After sending more documentation, her partner was denied the credit, a decision they are now appealing. And when they called the I.R.S., Ms. Jennings said the agent seemed confused about the reason for the denial, even though they provided all the required paperwork and went as far as having their lawyer sign an affadavit. “There is probably a place in the flow chart for the guy answering the phone, and it probably stopped or didn’t include this scenario,” Ms. Jennings said, referring to instructions on how to assist same-sex couples.

The I.R.S. said that any taxpayers who feel that they were improperly denied the credit should contact the I.R.S. And if you need more assistance, you can also contact advocacy organizations like the National Center for Lesbian Rights, which may be able to provide more guidance.

Have you or your partner (or spouse) encountered any problems with claiming this credit? If so, let us know in the comment section if and how you were able to resolve the issue.

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