New York’s Changing Family Law

New York’s changing family law finally appears to be catching up to the realities of LGBT families, at least incrementally.

A series of decisions from various New York courts is informing New York’s changing family law in ways never before imagined. Currently, in Manhattan, a court is struggling with how best to protect a child born in Ethiopia, which would only allow a single mother to adopt, now that his lesbian parents have split up.  Another recent decision out of the Kings County Family Court is one of the first to acknowledge the complexities of how we create our families, and offers sage advice as to how best we can protect them.

 

This new line of cases comes hot on the heels of the New York Court of Appeals case known as The Matter of Brooke S.B., which I have written about extensively.  Up until this decision, many lesbian parents who had not adopted the biological children of their partners or spouses were considered legal strangers to the children that they had raised since birth.  They were blocked by the court from seeking custody and visitation when their relationships faltered.  The Matter of Brooke S.B brings New York’s changing family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

The court in Brooke S.B. was careful not to expand the definition of parentage beyond the facts of each specific case, which means that we will be seeing more and more litigation attempting to address situations that do not fall squarely in the fact pattern of Brooke S.B., like the current case in Manhattan.

In a move to address confusion created by a 2013 decision from Kings County Surrogates Court, where Judge Margarita Lopez Torres denied a lesbian couple a step parent adoption because she held that a marital presumption of parentage existed when a  child is born to a married couple, Brooklyn Family Court has offered its opinion.  New York’s Appellate division, Second Department held the opposite of Lopez Torres (Paczkowski v. Paczkowski, — N.Y.S.3d —- (2015)), creating much confusion for the LGBT community.  Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), then second parent adoptions are the best way to secure those families from this uncertainty.

The bottom line of New York’s changing family law is that with each new case that tests the limits of the court’s definition of family, hundreds of thousands, if not millions, of dollars will be spent to “make new law,” when there already exists a remedy that is affordable and is respected across the country and around the world, second and step parent adoption.  The process may be time consuming but the benefit is priceless and I believe that JHO Ross understood this and made New York’s changing family law easier for us all to grasp.

For more information, please email anthony@timeforfamilies.com.

in Anonymous/Known Donation / Assisted Reproductive Technology / Featured Articles / IVF / Known Donor / Legal / Second Parent Adoption / Step Parent Adoption / Surrogacy  by Anthony Brown 2 comments

Arizona Appeals Court ruling: Birth mom’s same-sex ex has parental rights

The same-sex spouse of a birth mother is entitled to the same legal parental presumptions and rights as if she were a man, the Arizona Court of Appeals ruled Tuesday.

PHOENIX — In the first case of its kind in Arizona, the judges rejected the arguments by the biological mother of a child that the Arizona laws determining who is legally presumed the parent of a child only apply when that other person is a male. That, however, undermines the historic 2014 U.S. Supreme Court ruling that same-sex marriages are entitled to the same legal protections as traditional heterosexual unions, Appellate Judge Philip Espinosa said.lesbian family law

What makes that important is that Arizona law spells out that a man is presumed to be the father of a child if he and the mother were married at any time within 10 months immediately preceding the birth. Tuesday’s ruling, unless overturned by the Arizona Supreme Court, means that while the law was written with a father in mind, judges now have to read it to apply regardless of the other parent’s gender.

The case involves Kimberly McLaughlin and Suzan McLaughlin, who were legally married in 2008 in California.

The couple agreed to have a child through artificial insemination using an anonymous sperm donor, court records show. Kimberly McLaughlin became pregnant in 2010.

Tucson.com, by Howard Fischer – October 12, 2016

Click here to read the entire article.

in Anonymous/Known Donation / Assisted Reproductive Technology / In the News / Legal  by Anthony Brown 1 comments

Considering Known Sperm Donors

Lesbian couples are choosing known sperm donors in increasing numbers for a variety of very important reasons. Your choice now can make a big difference in your child’s life.

Known sperm donors are a much more viable option for lesbian couples today than they have ever been.  What greater decision can there be than the biological parent of your child? Choosing an anonymous sperm donor used to be the norm.  There are many reasons why known sperm donors are becoming the preference for lesbian couples and this article explores some of the most important ones.  But first, make sure you know the law.

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child.remarkable parenting

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Known sperm donors in many states, New York included, must surrender their parental rights to a child born with their genetic material after the birth of that child.  And if the mother is a single parent by choice, the known donor in many states may not surrender their parental rights at all.

In New York, as in most states, the best interest of a child is considered when allowing a genetic parent surrender their parental rights. If a known donor is surrendering his parental rights to the spouse or partner of the mother, then the court will authorize that surrender.  If, however, there is no other parent who will be assuming parental rights, the known donor cannot surrender their parental rights and will be able to sue for custody and visitation.  The mother will also be able to sue that known donor for child support.  This is the most important reason why single mothers by choice should use an anonymous donor.

One reason why lesbian moms are choosing known sperm donors is for the emotional health of their children later in life. Many studies show that the more a child knows about their biological background, be they adopted, a child through surrogacy or through known or anonymous sperm donation, the better adjusted they are as adults.  These same studies also show high satisfaction levels in the mothers who have chosen known sperm donors.

One other consideration in choosing a known sperm donor is where they live. If you envision a known donor as a parental figure in your child’s life with a more active role, the donor must be geographically able to fill that role.

Finally, many mothers choose between known and anonymous donors because of the degree of control they wish to have over their family formation. Choosing a known donor can be tricky and many mothers prefer to maintain the kind of parental control over their family that can only be experienced with an anonymous donor.

Whether you are considering known sperm donors to help you create your family or whether anonymous donors are right for you, the most important part of this decision is that you and your spouse or partner are comfortable with it and on the same page. And please make sure you know the law! For more information about known sperm donation and the legalities surrounding our families, contact Anthony@timeforfamilies.com or visit www.timeforfamilies.com today.

in Anonymous/Known Donation / Featured Articles / Known Donor / Legal / Parenting / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 1 comments

Same-Sex Couples and Their Children Speak Out: ‘My Family Is Just as Good as Anyone Else’s’

First comes love, then comes marriage—same sex couples and everyone knows what happens after that.

Children are the expected outcome of matrimony. Now that gay marriages are legal, the kids of their unions are subject to even more scrutiny, on top of the years of criticism from socially conservative groups like Focus on the Family and Americans for Truth About Homosexuality.

But according to a recent study in the Journal of Developmental and Behavioral Pediatrics, the kids are more than just all right; many of them are thriving. While the study focused on the biological children of lesbian households, there’s been tons of research—73 studies, meticulously reviewed by other social scientists—proving that stable same-sex partnerships, just like heterosexual ones, produce physically and emotionally healthy kids. The Root spoke to four same-gender families about the three factors they believe fuel their success.

Family Planning

According to LGBTQ-advocacy organizations like the Family Equality Council, successful gay families are often especially deliberate about planning for children. And many of those families are multiracial, with white parents raising kids of color. Gary Gates, retired research director of the Williams Institute, UCLA School of Law, a research center focused on sexual orientation and gender-identity law and policy, found that among white long-term couples raising children under age 18, 17 percent of single-sex couples have at least one nonwhite child, compared with 3 percent of different-gendered couples. In fact, single-sex white couples are more than five times more likely than their different-gendered counterparts to be raising nonwhite children.more gay couples are embracing surrogacy

Race mattered not for white-and-Latino couple Eva Smith, 44, and Liz Fuentes, 46, of South Orange, N.J., who are using pseudonyms to protect their African-American children’s privacy. Parenting was an essential part of becoming a family, as was careful planning.

“As a woman, [wanting children] was almost innate for me,” says Smith, who has been with Fuentes for 20 years. “I wanted to be a mom, and there are so many children out there who need loving families—we weren’t concerned with the genetics.”

Ten years ago, the couple began the adoption process of their two black sons, Peter and Adam, both age 10. After completing nearby New York’s rigorous process of workshops designed to prepare parents for adoption, which includes extensive background checks, a home study and home inspection, Smith and Fuentes were matched twice by the state with foster children they eventually adopted. The family have since relocated from the busy streets of Brooklyn, N.Y., to the quieter New Jersey suburbs to give their children the best possible quality of life and access to competitive schools that could address the boys’ developmental delays.

Sometimes a child’s geographic upbringing can be both a help and a hindrance. Growing up in rural Maine, for instance, gave Family Equality Council Co-Interim Executive Director Brent Wright, who is white, a quiet life, but left his desire to be a father “a dream deferred” because he’d never seen any gay families. As his community evolved and changed, so did his prospects for parenthood. He and his husband, Sandis, who have been together for 25 years and live in Andover, Mass., with their two black daughters, went forward with adoption after months of classes and meetings with clergy, mentors with social services experience and people of color.

“[We] had a really good grounding in the importance of cultural respect and understanding what it means to transracially adopt,” says Wright. Their girls, Olivia and Noelle, are 7 and 2 and participate in gymnastics, theater and ballet.

lesbian family law

drawing of a happy couple of lesbians and adopted child

Honest Conversations

Though today’s climate for LGBTQ families is stronger than in years past, parents must prepare themselves and their children for the realities of intolerance and hatred of all kinds. Yvonne and Rebecca Johnson, both 33, are a black lesbian couple raising their sons, Raphael, 12, and George, 14, who are Yvonne’s biological children. They live in Columbus, Ga., where their closest neighbor has a Confederate flag proudly on display. (The family’s names have been changed to prevent personal and professional backlash in their conservative hometown.)

“When the kids were young, we explained to them that people might say or do hurtful things [because of our family],” says Yvonne Johnson.

George, a ninth-grader with a passion for acting, is grateful for the confidence instilled by such conversations.

by Tamika Anderson, May 17, 2016 – TheRoot.com

Click here to read the entire article.

in Adoption / Anonymous/Known Donation / Known Donor / Legal / Parenting / Recently Added  by Anthony Brown 0 comments

As a Gay Woman, I Thought I’d Never Have Kids – but I Was Wrong

We had some challenges, but we got a happy ending.  A lesbian mom journeys toward family.

I’d always wanted a baby or two (or more). For me, a lesbian mom, it just wasn’t a question of if I get pregnant but when. In my daydreams, I’d see myself picking my son and daughter up from the school bus to walk our treelined block until we reached our Colonial-style home. I’d open the gate of the white picket fence, they’d rush in, drop their backpacks and the smell of freshly baked chocolate chip cookies would greet them as they entered.

All of that.

But I’m gay.parent adoption

When I came out at the age of 16, those fantasies weren’t so realistic anymore. I just didn’t think getting pregnant could happen for me. The desire was still in my heart, but I was unsure if it would — or could — become a reality. I was missing one super obvious and important ingredient in the baby-making process: sperm.

I met my would-be wife when I was 26. On our first date, I told her of my lifelong dream to get pregnant and have kids. She told me she vaguely thought about adopting a child — and only one child. When we got married three years later, I told my wife how quickly I wanted us to try to conceive. She needed longer to settle into the idea. For her, things were moving quickly. Not to mention, we would have to finance the pregnancy.

We started to talk about getting sperm from a known donor versus an unknown donor.

For us, the best option was to go with the recommendation of our friends — fellow lesbians who were either trying to conceive, or who had just finished or had started but had never had a successful pregnancy. They recommended reputable sperm banks long before my wife and I actually ever walked into our reproductive endocrinology clinic. Luckily, our newfound clinic recommended the same sperm bank as our friends, and we eased into the process of searching for a donor. When we were seriously looking, we created a user profile. Doing so, I felt, made the process real to me.

Even so, we still contemplated going with a known donor. We thought, Hey, wouldn’t it be great if our kid could have access to the knowledge of his/her biological make-up? But our doctors reminded us of all of the legal issues which could ensue if our friend (potential known sperm donor) decided he wanted rights to his child. We didn’t want to go to court nor did we want to subject our own mental health or the livelihood of our family to the ramifications of such a decision.

Our decision to go with a donor who chose to be anonymous was our ultimate decision. This meant that any child we conceived in the in vitro process would never get to know his or her biological father. If we went with a known sperm donor from the cryobank, that child would have the legal right to meet him once they reach the age of 18. With my wife being Sri Lankan and I African-American, we knew we wanted a Sri Lankan donor since I’d be the one to carry our child.

Once we decided on the cryobank, we had access to so much information about the sperm donor. We knew his ethnicity, height, weight, and even his astrological sign — all of this information is available before making the expensive purchase of sperm.

Cosmopolitan – By , Apr 29, 2016

Click here to read the entire article.

in Anonymous/Known Donation / Known Donor / Parenting / Recently Added  by Anthony Brown 0 comments

Two Moms Talk About Second Parent Adoption

Not all LGBT parents in the U.S. can put both parents’ names on their children’s birth certificate.  Second Parent adoption can help.

And even if they can, many lawyers still advise that gay couples go through a second parent adoption as a means to protect their parental rights to their children.

Brandy and Susan from The Next Family discuss their second parent adoption experience so other LGBT parents can gain some insight.

The moms explain the importance of second parent adoption by providing the example of traveling internationally to countries that don’t recognize same-sex marriage or families. By going through the process, step parent adoptions give both parents the same rights to their children thus protecting them in the U.S., overseas, and even in custody cases.second parent adoption

“And at the end of the day, I think it’s wise to do it,” Brandy said.

Though she does share her displeasure with the entire process that LGBT parents have to go through that straight parents do not:

“We fight so hard for our LGBT rights and we’ve gotten to this point and this place in our country…and [step parent adoptions] sort of takes you back. Like, really?”

Brandy and Susan explain the process that their family went through when it came to their step parent adoption. It involved finding a good lawyer, filling out an adoption application, and speaking with a social worker.

When speaking about the social worker experience, Brandy said, “They were asking us sort of ridiculous, in my opinion, parenting questions.” She also adds that you should prepare yourself for this experience which may be uncomfortable: “I think it was really insulting to me that they were asking her these questions and me these questions and I had had this child and we had together made this decision together to have this child.”

Following the social worker meeting, families will have to go to court to complete the adoption process.

For Susan’s court date, the judge asked her, “Why should I grant you this right to adopt this child?” Susan said she responded quite awkwardly with, “Well, I’m kind of doing a lot of mother things.” She was happy though with how the judge responded, “You’re the mother and that’s why I’m doing it.” Susan said she could tell that the judge thought that the entire process was also a “silly precursor” to establish her parental rights.

Click here to read the entire article.

By Alex Temblador – TheNextFamily.com – April 15, 2016

in Anonymous/Known Donation / Family Stories / Legal / Personal Stories / Recently Added / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Lesbian Moms Give Tips on Picking a Donor

Brandy and Susan describe the process of picking a donor and give tips to lesbian moms about known donors vs anonymous as well as things to watch out for.

The Next Family is a diverse community where modern families meet. It is the start of an on-going, open-minded and sincere dialog between urbanite families, adoptive families, in vitro parents, interracial families, same sex parents, lesbian moms, gay dads, single parents and so on. It is a way to remind people that the Next Generation of families already exists in larger numbers than the old model of a “family unit”.

 

Click here for more information on your path to parenthood.

in Anonymous/Known Donation / Known Donor / Videos  by Anthony Brown 0 comments

Anonymous Sperm Donors threatened by growth of genetic testing

The rise of personal genetic testing and growth of international DNA databases could put an end to anonymous sperm donors and anonymous egg donation as donor-conceived individuals may unintentionally discover biological relatives, according to UCL researchers.

 

The paper, published today in the journal Human Reproduction, reinforces the need for parents using  anonymous sperm donors and anonymous egg donors to be fully informed that their children’s DNA will identify that they are not the and that they should be encouraged to disclose their use of . Anonymous sperm donors should also be informed that their anonymity is not guaranteed, irrespective of whether they are donating in a country that practises anonymous donation or not.

Over 3 million people have already used direct-to-consumer genetic testing, often via online companies without the input of healthcare professionals, to find out information about their ancestry and health and many are participating in international genetic genealogy databases that will match them with relatives.Surrogacy Abroad

Professor Joyce Harper (UCL Institute of Women’s Health) explained: “DNA tests are increasingly being used to solve unknown parentage cases for adoptees and donor-conceived persons. People are finding half-siblings and even biological parents in online databases that are open to the public. A sperm donor does not have to be in the database to be identified as identification can be made from matches with other close relatives such as second or third cousins.”

Using these genetic databases, donor-conceived adults who have not been informed of their status may find out that they are donor-conceived, which may lead to traumatic breakdown of trust with parents.”

Recently, there has been a concerted effort within the scientific community and more widely to foster greater openness about genomic data. These developments indicate that many more healthcare clients are going to know information about their genomes in the future. The situation is further complicated by the fact that different countries, even with the EU, have different laws surrounding gamete donation, donor anonymity and parental disclosure.

by Rowan Walker, MedicalExpress.com, April 14, 2106

Click here to read the entire article.

in Anonymous/Known Donation / Egg Donation / Ethics / Known Donor / Recently Added  by Anthony Brown 0 comments

Adoption For Gay Couples is Still the Best Answer – The Message of Matter of Kelly S. v. Farah M.

Does this case render adoption for gay couples as unnecessary or is it simply an affirmation of another state’s more progressive parentage laws?

There has never been a stronger case for adoption for gay couples than Matter of Kelly S. v. Farah M.  I reported this week about a case out of the Second Department Appellate Division in New York affirming a Suffolk County Family Court decision granting visitation to a non-biological lesbian mother. At first glance, this appears to create new law in New York, doing away with previous NY law holding that a non-biological mother does not have standing to seek custody or visitation.  But on further inspection, its true message is that the only way to avoid costly and bitter court battles is through adoption for gay couples.

adoption for gay couples

Facts of the case – Kelly Steagall and Farah Martin met and entered into a relationship in 2000 and became registered domestic partners in California in 2004. They were legally married there in 2008.  Ms. Martin conceived two children through artificial insemination who were born in March of 2007 and April of 2009.  The couple used the same known donor for each child and, instead of using a doctor or fertility clinic to assist with the insemination, they privately inseminated at home.  After moving to New York in 2012, the couple separated in 2013 and Kelly moved to Arizona.  Kelly filed a visitation petition in Suffolk County New York in 2014.

Ms. Martin objected to Ms. Steagall’s status as a legal parent stating that New York law did not support her position and, in what the court saw a self-serving move, sued the known donor to establish that he was the other “true” parent.

What the court said – Appellate division Judge Roman, in her affirmation of the lower Family Court’s ruling, stated that because the couple was in a registered domestic partnership and subsequent marriage in California when the children were born, California law, which is far more progressive that New York family law, should govern and therefore, Ms. Steagall’s parentage could be recognized under California law.

New York Law – 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…”.

This case essentially relies on a marital presumption of parentage. In California, a registered domestic partnership at the time was viewed for all intents and purposes as a marriage.  While it is true that many states have what is called a “martial presumption of parentage,” it is applied differently in different states.  In New York State, 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 same court that decided the Matter of Kelly S. v. Farah M., 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 adoption for gay couples, 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.

How does this case affect Gay couples? – The take away from this case may not be what many of us in the LGBT legal community want, particularly in New York. While the language in the decision is expansive and is certainly heading in the right direction, it does not change the law in New York.  Had Kelly Steagall and Farah Martin lived in New York, conceived and gave birth to their children in New York, the outcome of this case could have been vastly different and Kelly Steagall would still, under current New York law, have had to fight in the courts for visitation to the children she had helped to raise since their birth.  No one factors into their family equation to emotional and financial costs of fighting to see the children to whom they area  parent, nor should they.  But the reality of the situation is much more nuanced.  If you are a New York resident, second or step parent adoption for gay couples is the best and only way to ensure that the emotional and financial costs of litigation can be avoided.

Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at Anthony@timeforfamilies.com.

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

NY Appeals court: Divorcing lesbian mother has parental rights

A state appeals court has upheld a Suffolk Family Court decision finding that two women who are divorcing are the legal parents of their children, including the one who did not give birth to them.

The unanimous decision for the Appeals court, Appellate Division’s Second Department, written by Justice Sheri Roman, finds that Kelly Steagall, 47, now of Arizona, has the right to seek visitation of the children born during her marriage to Farah Martin, 40, who grew up in Nesconset.

As in last year’s ruling by Suffolk Family Court Judge Deborah Poulos, Roman noted that the issue is affected by many factors, including the validity of California law in New York, whether a sperm donor who was a friend to the couple has any parental responsibilities and how the two women raised the children when they were together.

Steagall and Martin had three kids together. Steagall gave birth to the first one, and Martin carried the other two.

The couple later moved to Long Island and then separated. Martin went to Family Court seeking to deny Steagall’s parental rights to the younger two children, arguing that because Steagall never adopted them, an informal artificial insemination process left the children’s legal parentage in doubt.

Roman’s decision said that makes no difference.marriage equality

“The parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California and, later, while legally married in that state,” Roman wrote. “Additionally, the children were given [Steagall’s] surname, [Steagall] was named as a parent on each birth certificate and the parties raised the children from the time of their births … until the parties separated.”

Steagall said she is grateful for the decision, but worries the protracted legal battle and her inability to see her children regularly has damaged her relationship with them.

“There was borderline parental alienation going on, and I feel that’s still going on,” she said. “My kids will barely speak to me on the phone.”

Steagall’s appellate attorney, Christopher Chimeri of Hauppauge, said the ruling now enables Steagall to have a fair fight for visitation. He said courts are going to see more such cases.

“The law is, in effect, catching up to how families are formed and maintained,” he said.

by Andrew Smith, April 8, 2016 – newyorknewsday.com

Click here to read the entire article.

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