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.

step parents adoption, step parent adoption, adoption step parent, adoption for step parents

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

LGBT Families: Parenting & Second-Parent Adoption

LGBT Families: Parenting and Flaming Hoops of Second-Parent Adoption

LGBT Families and their personal stories are both moving and informative when planning your own family as a gay couple. At 30 weeks pregnant, my favorite time of each day is the moment when I lie down in bed and watch my stomach curiously shift as my daughter turns and rolls beneath the surface. “Look! Look!” I tell my wife when I can feel a movement is imminent, and she will place her hand on my belly, eager to make some early connection with the little creature that will be the center of our lives in ten short weeks. Each day we talk about how excited we are to meet our daughter — to see her, to feel her, to learn about her personality and if you’re my wife you will talk elatedly about teaching her how to throw a football.

In the midst of this excitement about our new family, we are beginning another new process — a second-parent adoption, so that my wife can also be recognized as our daughter’s legal parent. Although my wife’s name will be listed on our daughter’s birth certificate, and although we are legally married in New York State, and although we carefully chose our sperm donor together and although she will change a thousand poopie diapers and fall asleep reading Dr. Seuss books to our daughter one day — she will not have legal status as a parent to our child until we complete an extensive and expensive adoption process. Straight couples sometimes also choose to do second-parent adoptions, but this typically only occurs among unmarried straight couples when one is not the biological parent of the child. However, for the thousands of married same-sex couples like ourselves who have chosen to start a family and have children together, marriage or parental names on the birth certificate are not enough to secure our families.

LGBT Families of all kinds have second parent adoptions

We began researching second-parent adoptions for same-sex couples once we found out I was pregnant. We weren’t entirely convinced it was necessary; we live in and mostly travel to states with marriage equality laws in place and it seemed far-fetched that we would find ourselves in an unfriendly hospital where my wife would be barred from visiting me or making decisions on behalf of our daughter. And yet, all of our LGBT parent friends have gone through the adoption process, and even our LGBT friends without kids — including lawyers, nurses, activists and policymakers have encouraged us to do it. Only my moms, two lesbians who raised me and my siblings in New England years before any state recognized gay marriage, questioned the necessity of a second-parent adoption. “Listen honey, if you are ever in an emergency — you will find a way. Nothing will keep you guys from your child,” was my mother’s trusting advice. Yet LGBT families have faced these types of challenges for years and will continue to face them as long as there aren’t federal protections in place.

Despite last year’s momentous Supreme Court decision finding the Defense of Marriage Act’s (DOMA) ban on same-sex marriage unconstitutional, LGBT families still face what is often referred to as a “patchwork” of laws and regulations across the United States, including those that can prohibit a “non-recognized” same-sex parents from covering their child on their health insurance plan, visiting a sick child in a hospital, or from consenting to necessary medical care. In the worst of cases, a child could be removed from the family home if the legal parent dies and there’s no second-parent adoption in place.

In states that do allow LGBT parents to petition for second-parent adoptions (and at the time of this writing only 14 states and D.C. allow this), the adoption process can vary regionally, and even from judge to judge. This type of arbitrary consideration for a child’s “best interest” is likely to happen more with the passage of any federal legislation such as the recently introduced bill which would allow adoption and foster care service providers to “refuse to work with families with whom they have personal, religious, or moral objections.” As the attorney who is working on our adoption told us, “Less than half the states currently recognize same-sex marriages. If you were to leave NY for any purpose, there could be issues. Although you and your wife are in concert on this, if you were in another state and became disabled or died, she might have to deal with interfering relatives or an unfriendly Child Protective Services, medical or court system. A birth certificate is not proof of parentage and not entitled to full faith and credit in all states. A court order is your best protection.”

Click here to read the entire article.

 

by Allison Auldridge, huffingtonpost.com, August 15, 2015

in Legal / Parenting / Second Parent Adoption  by Anthony Brown 0 comments

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

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

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  

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

Commercial Surrogacy: Thailand Bans It!

ibnlive.com, August 7, 2015

Bangkok: A new law banning commercial surrogacy has come into effect in Thailand, a destination popular with foreigners and gay couples looking for cheaper surrogacy services.

The law banning commercial surrogacy was passed in February and came into effect from this month.

The law came after outrage following an Australian couple last year leaving a surrogate twin boy who had Down Syndrome behind in Thailand, taking his healthy sister.

The controversy triggered an immediate backlash in Thailand, forcing commercial surrogate operators to shut down operations.

Under the new law, a couple, a man and a woman, to avail surrogacy must be legally married for at least three years with one or both holding Thai nationality.

The surrogate mother is required to be a sibling of the couple, but not the parents or the couple’s children. The surrogate woman must also have her own child and have her husband’s consent.

If the woman is not a relative of the couple, the woman needs to meet regulations laid down by the Thai public health ministry.

Public Health Minister Rajata Rajatanavin said foreign couples would no longer be able to seek surrogacy services in Thailand.

Click here to read the entire article.

in In the News / International / Legal / Surrogacy  by Anthony Brown 0 comments

Italy failing same-sex couples says European court

by Reuters – July 21, 2015

The European Court of Human Rights condemned Italy on Tuesday for failing to provide legal recognition to same-sex couples and said the country should introduce some form of civil union for homosexual couples.

Italy is the only major western European country that does not recognize either civil partnerships or gay marriage.

The country was taken to the Strasbourg-based European Court by three homosexual couples who all complained that Italy discriminated against them because of their sexual orientation.

In their ruling, a panel of seven judges said same-sex couples in Italy needed greater legal rights.

“The Court considered that the legal protection currently available in Italy to same-sex couples … not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable,” it said.

Italian Prime Minister Matteo Renzi said at the weekend his government would introduce a law on civil unions by the end of the year, convincing a junior minister to end a hunger strike he had started in early July to protest at the lack of legislation.

Click here to read the entire article.

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

India must regulate its booming surrogacy business and stop women being exploited as just a ‘womb for hire’

South China Morning Post, July 13, 2015 by Amrit Dhillon

Surrogate mothers in India are a sad lot, their lives wrapped in layers of exploitation. At the bottom of the social heap, poor and uneducated, they spend their days in drudgery either in an urban slum or a rural shack.

Poverty has forced these women to “willingly” rent their wombs to rich Indian and foreign couples. In practice, this often means that when the surrogacy contracts are being signed, they give their uninformed consent to all manner of procedures without understanding a word of what is written.

If this wasn’t bad enough, the findings of a new study on Delhi’s fertility clinics – by researchers at two Indian universities, University of Delhi and Jawaharlal Nehru University, and Aarhus University in Denmark – show that their situation is even worse, with doctors doing their utmost to please the commissioning couples, often at the risk of harm to the mother.

The study found that some doctors implant several embryos in the womb – sometimes up to five or six – to ensure a higher success rate even though medical guidelines say that transferring more than three embryos can pose a serious health risk to the mother. “In a majority of clinics, doctors alone made the decisions about the number of embryos to transfer. Some of them involved the commissioning parents but few involved the mothers,” one of the researchers said.

What is unconscionable is how the Indian government has let this billion-dollar industry continue for so long with little or no regulation.

As cases of exploitation began being reported, the government came out with the draft Assisted Reproductive Technologies bill in 2010. It provides surrogates with a range of safeguards and also lays down regulations for the thousands of fertility clinics in the country.

But, for five years, the bill has been in limbo as lawmakers are apparently too busy to discuss it.

Click here to read the entire article.

in Ethics / International / IVF / Legal / Surrogacy  by Anthony Brown 0 comments

Federal judge orders Utah to put same-sex couple on their child’s birth certificate

July 15, 2015 – Fox13Now.com

SALT LAKE CITY — A federal judge has ordered the Utah Department of Health to put a same-sex couple on their child’s birth certificate, ruling that the state is discriminating against them.

U.S. District Court Judge Dee Benson said that in light of the U.S. Supreme Court’s ruling on same-sex marriage, Utah would need to change its laws to reflect that new reality.

“I’m just still trying to see if there’s any way you can, now that same sex marriage is legal, tell me Utah has a rational basis in discriminating against this woman,” he told lawyers for the Utah Attorney General’s Office.

Kami and Angie Roe sued the state after health officials refused to list Angie as a parent of their child. The couple married after Utah’s ban on same-sex marriage was overturned. Kami is the birth mother of their child, Lucy. Angie Roe said she took the exact same steps that a man would if his wife used assisted reproductive services (such as a sperm donor), including signing the same paperwork. But the Utah Department of Health refused to issue a birth certificate with Kami and Angie Roe’s names on it.

Click here to read the entire article.

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

For Two Moms, a Battle to Be on a Birth Certificate

July 14, 2015 – Yahoo Parenting by Esther Crane

Spouses Keri Roberson and Molly Maness-Roberson of Texas, married in 2012, are now fighting for the right to have both of their names on their son’s birth certificate. (Photo: Facebook)

Most parents don’t give a second thought to filling out a new baby’s birth certificate. But for some same-sex spouses like Keri Roberson and Molly Maness-Roberson, who have been legally married since 2012, this routine state document has become a battleground.

Maness-Roberson gave birth to son Boston earlier this month; he was conceived from Keri Roberson’s egg, and donor sperm, according to the Dallas Morning News. Yet the Fort Worth–area couple’s bliss over Boston’s coming into the world was overshadowed by the fact that Texas law currently does not permit both women to be listed as Boston’s parents.

“It just really breaks your heart, that’s the only way I can describe how I felt,” Maness-Roberson told the Dallas Morning News. Roberson and Maness-Roberson did not respond to Yahoo Parenting’s request for comment.

Just like birth certificates in many other states, Texas’ birth document has one line for the name of a father and another line for a mother; there’s no line for two parents of the same gender. The recent Supreme Court decision affirming marriage rights for same-sex partners forced Texas to amend its marriage license — but an equally important document, a child’s birth certificate, still reflects a pre–marriage equality era.

Click here to read the entire article.

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

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.

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