Georgia appeals court upholds a second-parent adoption on narrow grounds and expresses doubt about whether such adoptions are allowed in Georgia

July 24, 2012 – Beyond (Straight and Gay) Marriage by Nancy Polikoff

It’s another lesbian-behaving-badly case, this one entitled Bates v. Bates.  In 2007, a lesbian couple, Nicole and Tina Bates, successfully petitioned a Georgia trial court for a second-parent adoption that made Tina a legal parent of the child Nicole gave birth to after conception through donor insemination.  Three years later, after the couple split up, Nicole went back to the same court and asked for the adoption to be set aside.  (Even after all these years, and everything I know, I cannot write this last sentence without screaming inside.)  The court denied the motion, finding that Georgia law did not allow an adoption to be challenged after six months.  Nicole unsuccesfully petitioned to appeal that order.
Meanwhile, Tina had filed for custody in a different county.  After Nicole lost her initial attempt to void the adoption, she moved to dismiss Tina’s custody action by arguing, again, that the adoption decree was not valid.  The judge granted Nicole’s motion to dismiss and so threw out Tina’s custody petition.  The trial judge found that Georgia does not allow second-parent adoption.  It also ruled that it could not adjudicate custody of the child because the Georgia Constitution prohibits courts from ruling on the “respective rights arising as a result of or in connection with [a relationship between persons of the same sex].”
Tina appealed, and in the Bates decision issued two weeks ago, the Court of Appeals of Georgia, Third Division, ruled in her favor.  But it did so on the narrow ground that Nicole had had her shot at claiming the adoption void and had lost.  Having lost once, she could not relitigate the same issue in a different court. (This legal doctrine goes by the Latin term res judicata.)  In the process of ruling for Tina, however, the court expressed skepticism about whether Georgia does, in fact, allow second-parent adoption.  It suggested Nicole’s argument had “merit,” and called the practice of second-parent adoption in Georgia “doubtful.”   The court therefore sent Tina’s custody petition back to the trial court.  The court noted that adjudicating the custody of the child arises out of the adoption decree and not the relationship between Tina and Nicole and therefore does not run afoul of the state constitution. There is no indication in the opinion about when Tina last saw her child.

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in Legal / Second Parent Adoption  by Anthony Brown 0 comments

Answers to Frequently Asked Questions for Same-Sex Couples From IRS

The following questions and answers provide information to same-sex domestic partners, same-sex individuals in civil unions and same-sex couples whose marriage is recognized by state law (for convenience, these individuals are referred to as “same-sex couples” and each individual is referred to as a “same-sex partner” in these questions and answers). Below this information are questions and answers for same-sex couples who reside in community property states and are subject to their state’s community property laws:

Q. Can same-sex partners who are legally married for state law purposes file federal tax returns using a married filing jointly or married filing separately status?

A. No. Same-sex partners may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as married for federal tax purposes.

Q. Can a taxpayer use the head-of-household filing status if the taxpayer’s only dependent is his or her same-sex partner?

A. No. A taxpayer cannot file as head of household if the taxpayer’s only dependent is his or her same-sex partner. A taxpayer’s same-sex partner is not one of the related individuals described in the law that qualifies the taxpayer to file as head of household, even if the same-sex partner is the taxpayer’s dependent.

Q. If a child is a qualifying child under section 152(c) of both parents who are same-sex partners, which parent may claim the child as a dependent?

A. If a child is a qualifying child under section 152(c) of both parents who are same-sex partners, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

Q. Can a same-sex partner itemize deductions if his or her partner claims a standard deduction?

A. Yes. A same-sex partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction. Although the law prohibits one spouse from itemizing deductions if the other spouse claims the standard deduction (section 63(c)(6)(A)), same-sex partners are not spouses as defined by federal law, and this provision does not apply to them.

Q. If a same-sex couple adopts a child together, can one or both of the same-sex partners qualify for the adoption credit?

A. Yes. Each same-sex partner may qualify to claim the adoption credit on the amount of the qualified adoption expenses paid or incurred for the adoption. The same-sex partners may not both claim credit for the same qualified adoption expenses, and neither same-sex partner may claim more than the amount of expenses that he or she paid or incurred. The adoption credit is limited to $13,360 per child in 2011. Thus, if two same-sex partners each paid qualified adoption expenses to adopt the same child, and the total of those expenses exceeds $13,360, the maximum credit available for the adoption is $13,360. The same-sex partners may allocate this maximum between them in any way they agree, but the amount allocated to a same-sex partner may not be more than the amount of expenses he or she paid or incurred. The same rules generally apply in the case of a special needs adoption. The total credit for such an adoption is limited to $13,360, but the amount that each same-sex partner may claim is not limited by the amount of expenses paid or incurred.

Q. If a taxpayer adopts the child of his or her same-sex partner as a second parent or co-parent, may the taxpayer (“adopting parent”) claim the adoption credit for the qualifying adoption expenses he or she pays or incurs to adopt the child?

A. Yes. The adopting parent may claim an adoption credit to the extent provided under the law. The law does not allow taxpayers to claim an adoption credit for expenses incurred in adopting the child of the taxpayer’s spouse. However, this limitation does not apply to adoptions by same-sex partners because same-sex partners, even if married for state law purposes, are not treated as spouses under federal law.

Q. Do provisions of the federal tax law such as section 66 (treatment of community income) and section 469(i)(5) (passive loss rules for rental real estate activities) that apply to married taxpayers apply to same-sex partners?

A. No. Like other provisions of the federal tax law that apply only to spouses or married taxpayers, section 66 and section 469(i)(5) do not apply to same-sex partners because federal law does not treat same-sex partners as married for federal tax purposes.

Q. Is a same-sex partner the stepparent of his or her partner’s child?

A. If a same-sex partner is the stepparent of his or her partner’s child under the laws of the state in which the partners reside, then the same-sex partner is the stepparent of the child for federal income tax purposes.
in Legal / Parenting  by Anthony Brown 0 comments

Protecting Kids and Families in North Carolina

By James Esseks, Lesbian Gay Bisexual Transgender & AIDS Project June 13, 2012

We’ve just filed a new federal case in North Carolina to ensure that kids being raised by lesbian or gay parents can have legally protected relationships with both of the parents who are raising them. North Carolina bans second parent adoption – which is the name for that kind of protection – and the stories of two of our plaintiff families illustrate just how harmful the ban is.

Crystal Hendrix and Leigh Smith are raising two children together, 2-year-old Quinn and Joe, their baby. Crystal carried each of them and of course is recognized as their mother. But Leigh, the stay-at-home mom, can’t become a legal parent because of the ban on second parent adoption. Crystal’s parents have never accepted the women’s relationship, so both Crystal and Leigh have a real concern about what would happen if Crystal were to die or become legally incapacitated, with Leigh remaining a legal stranger to the kids.

Click here to read the entire article.

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

What today’s US Supreme Court ruling in Astrue v. Capato might mean for children of LGBT parents

May 21, 2012 – by Nancy Polikoff – Beyond (Straight and Gay) Marriage

 

In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines “child” for purposes of receiving survivor’s benefits when a covered employee dies.  Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert.  The twins were conceived by IVF after Robert’s death using semen he had frozen before this death specifically for that purpose.
Karen claimed the children were entitled to benefits because they inherently met the definition of “child” since they were the biological children of married parents.  The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits.  Under the law in Robert’s domicile at the time of his death  — Florida — children conceived post-death do not inherit without a will, so the twins were not Robert’s children for purposes of receiving benefits.
In Astrue v. Capato, the Supreme Court ruled in favor of the SSA.  Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels.  First, Karen’s claim was that the children were so obviously Robert’s children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition.  Why was this so obvious? Because, Karen argued, they were the biological children of married parents.  I took great pleasure in Justice Ginsburg’s criticism of that argument.  Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should “eliminate the intestacy test only for biological children of married parents.” (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between “children whose parents were married and children whose parents’ liaisons were not blessed by clergy or the State.”

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

Same-Sex Parents Lobby Congress For Equal Rights

NPR.org by 5.17,2012

On the edge of the National Mall on Thursday, dozens of moms, dads and kids pose for a group photo framed by the U.S. Capitol. They’re just some of the approximately 700,000 same-sex families across the country, despite laws in some states that make raising children difficult for gay couples. Now, they’ve come to Washington to ask lawmakers to make their lives a little easier.

“Today in the United States, there’s kind of a patchwork of state laws,” says Jennifer Chrisler, herself a same-sex parent and executive director of the Family Equality Council, which organized the lobbying day. Chrisler says public policy toward same-sex families is out of sync with reality.

“The 12 states where [same-sex] couples are most likely to be raising kids are states like Mississippi and Montana and Kentucky and Louisiana,” she says. “And those are the states that actually have some of the worst policy.”

In fact, the highest share of same-sex couples is in Mississippi, which bans gay adoption altogether.

Click here to read the entire article.

in Legal / Legislation / Parenting  by Anthony Brown 0 comments

The Real Lesson of North Carolina’s Amendment 1

ColorLines.com by Kenyon Farrow, May 11, 2012

President Obama’s public support of same-sex marriage helped upright the frowns of many LGBT marriage activists. The president’s endorsement came the day after North Carolina voters passed a constitutional amendment to ban recognition of any form of relationship that is not a legally married hetereosexual couple. While the passing of Amendment 1 may seem like a big blow to same sex-marriage activists, the grassroots organizing that came together to fight it may actually be the most important win for North Carolina, and a sign that activists in the state are building a better social justice infrastructure for the future.

What’s most important for the gay marriage advocates to remember is that Amendment 1 was never just about same sex marriage—that was already illegal in North Carolina. The bill was written and heavily promoted by Alliance Defense Fund, a right-wing legal advocacy group, and bans all legal protections for unmarried people. It ends people’s ability to get health insurance under domestic partnership plans. The bill even threatens the rights of unmarried parents to visit their children.

While this has been true in many of the now-30 constitutional amendments at the state level, the LGBT organizations have failed, in their desire to win “marriage equality,” to get ahead of the right-wing message to really paint it for what it is: a religious conservative policy agenda to remove anything resembling state support for “inappropriate” gender, romantic or sexual relationships. That includes, but is not limited to, same-sex marriage.

Click here to read the rest of the article.

in Legal / Legislation / Parenting / Personal Stories  by Anthony Brown 0 comments

A Watershed Move, Both Risky and Inevitable

May 9, 2012
New York Times

President Obama’s endorsement of gay marriage on Wednesday was by any measure a watershed. A sitting United States president took sides in what many people consider the last civil rights movement, providing the most powerful evidence to date of how rapidly views are moving on an issue that was politically toxic just five years ago.

Mr. Obama faces considerable risk in jumping into this debate, reluctantly or not, in the heat of what is expected to be a close election. The day before he announced his position, voters in North Carolina — a critical state for Mr. Obama and the site of the Democratic convention this summer — approved by a 20-point margin a constitutional amendment banning same-sex marriage. It was the 31st state to pass such an amendment.

As George W. Bush demonstrated in 2004, when his campaign engineered initiatives against gay marriage in a series of swing states, opponents are far more likely to vote on these issues than supporters. Mitt Romney, the probable Republican presidential candidate, was quick to proclaim his opposition to gay marriage after Mr. Obama spoke. And however much national attitudes may be shifting, the issue remains highly contentious among black and Latino voters, two groups central to Mr. Obama’s success.

Yet as Mr. Obama has clearly come to recognize, the forces of history appear to be changing. The president was at risk of seeming politically timid and calculating, standing at the sidelines while a large number of Americans — including members of both parties — embraced gay marriage. That is a particularly discordant image, many Democrats said, for the man who was the nation’s first black president.

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

GLAD Publishes Transgender Family Law Book

Mombian.com May 3, 2012

Gay & Lesbian Advocates & Defenders (GLAD) has just announced the publication of Transgender Family Law: A Guide to Effective Advocacy, “the first book to comprehensively address legal issues facing transgender people in the family law context and provide practitioners the tools to effectively represent transgender clients.”

Co-editor Jennifer Levi, director of GLAD’s Transgender Rights Project, called the book “a road map for transgender individuals and their attorneys to navigate the family court system in this evolving area of law.”

To read more, click here!

She explained, “Some of the most heartbreaking stories I have heard in my career as an LGBT legal advocate involve transgender people in family courts. The rights of transgender people—as parents, spouses, and simply as human beings—are often trammeled in family court because of pervasive bias and misunderstanding. ”

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

U.S. Senate passes LGBT-inclusive Violence Against Women Act reauthorization bill

National Gay and Lesbian Task Force – April 26, 2010

The Task Force applauds the U.S. Senate’s passage by a vote of 68-31 today of the Violence Against Women Act (VAWA) reauthorization bill, which for the first time includes explicit protections for lesbian, gay, bisexual and transgender (LGBT) survivors of domestic violence.

The 1994 federal law provides funds to enhance investigation and prosecution of violent crimes such as domestic violence and sexual assault, and it bolsters victim services programs. The Task Force Action Fund, along with a broad coalition of organizations including the National Coalition of Anti-Violence Programs, has been lobbying for inclusion of sexual orientation and gender identity in the law.

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If ‘Forever’ Doesn’t Work Out: The Same-Sex Prenup

March 23, 2012
New York Times
By LOUISE RAFKIN

WHEN Ellen DeGeneres married Portia de Rossi in 2008, people wanted to know two things: What did they wear? And was there a prenup?

Regarding the first question, the couple wore Zac Posen.

The second question — Ms. DeGeneres’s representatives did not respond when asked if she had a prenup or not — has become important for many other same-sex couples, who have discovered that all the new opportunities to marry are accompanied by a gloomy companion that hangs silently over every prospective newlywed: the possibility of divorce.

“The old adage ‘with rights come responsibilities’ comes to mind,” said Frederick Hertz, an Oakland, Calif., lawyer and an author of “Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions” (Nolo Press, 2009).

Having mediated ugly same-sex breakups, both for those legally married and in domestic partnerships, Mr. Hertz is a staunch advocate of the prenuptial contract; he has worked on more than 100 in the last five years. Yet Mr. Hertz’s unscientific guess is that less than 20 percent of same-sex couples talk to lawyers before reciting vows.

Lisa Padilla, 49, a Manhattan lawyer, and Allison Drew Klein, 55, a sales representative for Pitney Bowes, met during Rosh Hashana at their synagogue in 2010. In a matter of weeks, they formed a strong bond.

For both women, previous long-term relationships had ended badly, and in Ms. Padilla’s case, the problems involved finances. Ms. Padilla, who owns her own law firm, said she made far more than her previous partner and paid for most of the couple’s expenses.

After a giddy three months of dating, Ms. Padilla and Ms. Klein moved in together. They had been sharing costs equally, so when Ms. Padilla broached the subject of a prenuptial agreement, Ms. Klein was taken aback.

“It was unsettling, and took some of the romance away, “ she said. “I read Lisa’s insistence for a prenup as a lack of trust.”

Both women had considerable assets, including apartments and investments. “I really wanted the assurance that if we were making a mistake, we could extricate ourselves easily,” Ms. Padilla said.

Ms. Klein thought the issue was moot. After all, this was supposed to last forever.

For months, the question languished and the prenuptial document that Ms. Padilla had drafted lay untouched.

Both women hired lawyers, and the process was nerve-racking, more so — curiously — for Ms. Padilla. “I was skip-happy in love, but scared, too,” she said. “I could see how the opportunities for misinterpretation abounded — both between the two of us and among our friends.”

“We were looking ahead,” she added, “but we didn’t have anything on paper.”

Eventually, Ms. Klein agreed to sign.

“In my opinion, Lisa had been taken advantage of in other relationships,” she said. “I wanted her to be able to feel safe in this one.”

The women were married in Manhattan last December. “For the first time, I feel like I’m with an equal partner,” Ms. Padilla said. “My primary purpose with the prenup was to take finances off the table and engage in the relationship with our hearts.”

Michele Kahn, the lawyer who represented Ms. Klein, strongly advises those thinking about marriage to grasp all the ramifications, saying, “During breakups, it’s everyone for themselves.”

She says most often it is not the cost of the agreement ($2,000 to $5,000) that short-circuits the process, but the complicated questions that can arise over, say, alimony; compensation for a stay-at-home parent; and retirement accounts, which for same-sex couples cannot be divided without penalties and tax consequences.

Same-sex marriages are not federally recognized, which can make things messier, especially if a couple moves to a state that does not acknowledge their union. “If the second state follows the rules of the first it probably will be binding, but some states have looser standards and if it’s not written according to those looser standards, it might not be binding,” Mr. Hertz said.

Prenuptial agreements were originally established to protect family wealth. That notion is sometimes cloudy in same-sex relationships.

“In the gay community there is a lot of socializing among people with large discrepancies in both income and family wealth,” said Jooske Stil, a marriage and family therapist in Oakland. “Romance often blooms before there’s full disclosure about economic backgrounds and family inheritances.”

Click here to read the complete article.

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