Federal Court to Re-Hear Same-Sex Couple’s Challenge After Louisiana Refuses to Respect Out-of-State Adoptions

 Lambda Legal, January 14, 2011

Five-year-old son raised by two fathers still without accurate birth certificate.

(New Orleans, January 14, 2011) – The full 16-member U.S. Fifth Circuit Court of Appeals will hear oral arguments on Wednesday, January 19, 2011, regarding the New York adoption of a Louisiana-born baby boy by a same-sex couple.

Lambda Legal represents Oren Adar and Mickey Smith in their case against Louisiana State Registrar Darlene Smith. Adar and Smith are a gay couple who adopted their Louisiana-born son in 2006 in New York, where a judge issued an adoption decree. When the couple attempted to get a new birth certificate for their child, in part so Smith could add his son to his health insurance, the registrar’s office told him that Louisiana does not recognize adoption by unmarried parents and so could not issue it.

Lambda Legal filed suit on behalf of Adar and Smith in October 2007, saying that the registrar was violating the Full Faith and Credit Clause and Equal Protection Clause of the U.S. Constitution by refusing to recognize the New York adoption judgment because the child’s parents are unmarried.  The Constitution requires that judgments and orders issued by a court in one state be legally binding in other states. Further, a state may not disadvantage some children over others simply because the child’s parents are unmarried. The Louisiana attorney general disagreed, and advised the registrar that she did not have to honor an adoption from another state that would not have been granted under Louisiana law had the couple lived and adopted there. In 2009, U.S. District Judge Jay Zainey ruled against the registrar and issued a summary judgment ordering her to issue a new birth certificate identifying both Oren Adar and Mickey Smith as the boy’s parents, saying her continued failure to do so violated the U.S. Constitution. In 2010, a three-judge panel of the Fifth Circuit Court of Appeals agreed and affirmed the judgment. The attorney general requested a rehearing by the full Court of Appeals, which was granted.

WHO:          Kenneth Upton Jr., Supervising Senior Staff Attorney for Lambda Legal

WHAT:        Oral Arguments, Adar v. Smith

WHERE:          John Minor Wisdom U.S. Court of Appeals Building
                600 Camp St.
                New Orleans, Louisiana

WHEN:        Wednesday, January 19, 2011
                9:00 a.m.

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

An End to Gay Adoption Bans?

July 28, 2010, 11:26 am – New York Times –

By LISA BELKIN

Data drives policy. Or, at least, it should. In recent months there have been several studies suggesting that children raised by same-sex couples are certainly no worse off (and in some ways are arguably better off) than children raised by heterosexual couples.

Now, in an article titled “Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?” in the August issue of the journal Applied Developmental Science, researchers go one incremental but important step further. Rather than simply letting the research speak for itself, they conclude that their new findings should lead to the end of existing bans on adoption by same-sex couples in the United States.

“From a policy perspective, our results provide no justification for denying lesbian and gay adults from adopting children,” Rachel H. Farr and Charlotte H. Patterson, of the University of Virginia, and Stephen L. Forssell of George Washington University write.

At the moment, three states — Florida, Mississippi and Utah — explicitly prohibit gay couples from adopting, and a similar law is being challenged in the Arkansas courts. Twenty-nine states, plus the District of Columbia, on the other hand, explicitly permit such adoptions, and the remainder have imprecise language in their adoption statutes. The reason most often given by opponents of single-sex adoption is that children do best with a mother and a father.

Over the past year, a parade of studies have all set out to test that assumption. What makes this latest one different was that, for the first time, research on the social development and psychological health of children was not based on the opinions of their parents alone but also of outside observers (teachers and care givers.) And, also for the first time, a control group of heterosexual families was used. The University of Virginia and George Washington researchers studied preschoolers who were adopted at birth by 27 lesbian couples, 29 gay male couples and 50 heterosexual couples. (Yet another groundbreaking aspect to this study was the number of gay men who were included; to date most of the research has been on lesbian mothers.)

What did they find? That it’s the quality of the parenting that creates a psychologically healthy child, not the sexual orientation of the parents.

The implication: From a public-policy stance, the study suggests there is “no justification for denying lesbian and gay prospective adoptive parents the opportunity to adopt children,” Patterson, the lead researcher, said.

Which could, and should, but probably won’t, put this question to rest.

in Adoption / Second Parent Adoption  by Anthony Brown 0 comments

Obama Recognizes Gay Dads

  • By Candace Chellew-Hodge – 6.21.10

  • When President Obama issued his statement this past weekend in recognition of Father’s Day, he mentioned one class of fathers that no other president before him has acknowledged: gay dads.

    Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a stepfather, a grandfather, or caring guardian.

    His acknowledgement of the labor of love two men may put into their relationship with their children drew quick reaction from the “pro-family” but anti-gay set. Christian Broadcasting Network White House Correspondent David Brody tsk-tsked the president, warning he’s alienating religious folks:

    First of all, by putting “two fathers” in your proclamation you are really running the risk of alienating networks of pastors and church goers who may buy into the President’s overall but draw the line when it comes to traditional marriage. You put these normally supportive pastors in a tough situation because the fact of the matter is the whole ‘two fathers’ scenario DOES NOT play well in most Churches in America. And that is completely understandable.

    My first reaction to that concern was, “welcome to our world.” The LGBT community has been alienated from most of the world for the majority of history, so pastors and churchgoers who balk at the president’s words can enjoy, just for a moment, our reality. Alienation is something we’re familiar with — kicked out of our families, kicked out of our churches, fired for being who we are, denied housing for being who we are, denied the rights and responsibilities of marriage. You want alienation? Mr. Brody, the line starts behind me.

    Of course, Brody’s reaction is tame compared to Peter LaBarbera over at Americans for Truth about Homosexuality who gives his usual rant about how gay men are promiscuous (because no straight men are, right?).

    But even if two homosexual men keep their disordered relationship “faithful,” homosexual parenting would not be worthy of celebration, LaBarbera said: “It is wrong to force children into a situation where they have two men modeling immoral behavior — condemned by God and all major religions — as the most important role models in their lives.”

    Aside from the “scare quotes” around the word “faithful,” LaBarbera makes no sense here. What “immoral behavior” is he talking about? Does he really believe gay dads have sex in front of their children? Do LaBarbera and his wife do “immoral” things in front of their children? Or, perhaps, LaBarbera believes it’s immoral for kids to see their gay dads go to work every day, take out the trash, and instruct their children to clean their rooms and make their beds. What horrible fathers!

    There is not a shred of proof that gay men are worse fathers than

    straight men. In fact, a recent study, quoted in the Advocate, showed that “gay fathers were more likely to scale back their careers in order to care for their children. Another difference was that gay fathers also saw their self-esteem and relationships with their extended families greatly improve when they had children.” Far from being “immoral” it seems that fatherhood is good for gay men, just as it is for straight men. But, LaBarbera and his “pro-family” cohorts won’t ever let facts get in the way of a good scare tactic.

    Even if President Obama has, by and large, disappointed our community since his election with his foot-dragging on issues like Don’t Ask, Don’t Tell, the Employment Non-Discrimination Act (ENDA), and the Defense of Marriage Act (DOMA), it feels good to be acknowledged, even in a boiler-plate proclamation. It feels good to have the leader of your country acknowledge not just your existence, but your humanity — your extreme normalness.

    If that makes the religious right feel alienated, it really shouldn’t. It simply means that we finally have a commander-in-chief who can acknowledge the reality of the American family and see the humanity of everyone, even if politics prevents him from fully enacting a fairer agenda.

    A belated Happy Father’s Day, Mr. President.

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

Lesbian Couple Sue Iowa Officials Over Birth Certificate

Advocate.com May 15, 2010
By Advocate.com Editors

A lesbian couple are suing Iowa state officials for printing on their daughter’s birth certificate that she has only one parent and was born out of wedlock.

Heather Lynn Martin Gartner, 38, and Melissa McCoy Gartner, 39, filed suit against two state health department officials on behalf of their daughter Mackenzie, who was born in September, because her birth certificate lists only Heather as the mother.

The Iowa Department of Public Health rejected the couple’s request for a birth certificate with both their names in March, according to the lawsuit, claiming Melissa had not legally adopted Mackenzie and was not biologically related.

Though same-sex marriage is legal in Iowa, birth certificate laws “expressly recognize the biological reality that women and men each play a distinct but equally necessary role in human reproduction and have corresponding rights, duties and obligations to their child,” according to the Department of Health letter cited in the lawsuit.

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

N.Y. Court Expands Rights of Nonbirth Parents in Same-Sex Relationships

May 4, 2010 – New York Times – By JEREMY W. PETERS

ALBANY — New York State’s highest court somewhat expanded the rights of gay and lesbian parents on Tuesday in a narrow ruling that said nonbiological parents in same-sex relationships should be treated the same as biological parents.

But the high court, the Court of Appeals, declined to resolve two cases involving lesbian parents and instead sent both back to lower courts, saying that the question of whether nonbiological parents should be given full parental rights was up to the State Legislature.

In one case, the court found that a lesbian who had given birth while in a committed relationship was entitled to seek child support in Family Court from her former partner. The ruling was 4 to 3.

In the other case, which legal experts said had broader implications, the court ruled that a woman seeking visitation rights from her former partner, who gave birth to a child conceived by artificial insemination after the two had entered into a civil union in Vermont, was a legal parent of that child.

The decision, by a 7-to-0 vote, said the woman, identified in court documents as Debra H., could ask a court for visitation and custody rights because New York confers parental rights to both parents in a same-sex relationship if the couple has a civil union.

Though the court did not specifically address the parental rights of gays and lesbians who are not birth parents but have other legally sanctioned unions, like a marriage performed in a jurisdiction that allows same-sex couples to wed, the case provides them a legal claim to parenthood.

“In many ways this is a real breakthrough in New York,” said Susan L. Sommer, who argued the case before the Court of Appeals and is senior counsel and director of constitutional litigation for Lambda Legal, a gay-rights advocacy group.

“But there’s also a lot more work that needs to be done, because the decision stops short of bringing New York into line with the growing trend in other jurisdictions,” Ms. Sommer added.

Some legal experts said they were dismayed by the ruling because it effectively established two sets of standards for children of same-sex couples: one set for those born to couples with a legally recognized relationship, and another for those born to couples without legal recognition.

“A distinction between whether one is a parent or is not a parent based on whether a couple is in a civil union or not in a civil union — that should not matter,” said Nancy Polikoff, a law professor at American University. “From the child’s point of view, he or she has two parents.”

The court declined to establish criteria for parenthood in relationships in which one partner or spouse is not the biological parent, saying a more flexible standard could invite claims of parental rights by people who have no business raising them.

“Parents could not possibly know when another adult’s level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party,” Judge Susan P. Read wrote in the opinion.

Other jurisdictions have amended their laws to grant nonbiological parents broad legal rights. Colorado, Indiana, Minnesota, Texas and the District of Columbia have all established criteria under which people other than biological parents can claim to have parental rights.

The Court of Appeals said nothing prevented the Legislature from following that lead.

Sherri L. Eisenpress, the lawyer for the biological mother involved in the case stemming from the Vermont civil union, who is identified only as Janice R., said the case was never about broader issues. Instead, Ms. Eisenpress said it was about following established family law in New York, which states that anyone who is not a biological or adoptive parent lacks standing to seek custody or visitation rights.

“Her goal in this case was never to establish some precedent or to make any broader statement other than that she expressly declined to allow this woman to adopt her son because she did not want to co-parent with this person,” Ms. Eisenpress said.

Though the case presents a twist on the traditional American family, in one sense it is conventional. Explaining why she entered into a civil union, Janice R., according to the decision, said, “to put an end to (Debra H.’s) nagging.”

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

Debra H. v. Janice R. – An affirmation of Second Parent Adoption

May 4, 2010

By Anthony M. Brown, Esq.

The New York Court of Appeals issued their ruling today on what had been considered to be a potentially landmark case, Debra H. v. Janice R.  In their ruling, the court allowed the plaintiff, Debra H., access to her non-biological child with whom she had been denied visitation from the biological mother, Janice R.  That sounds great, right?  Wrong.

In doing so, the court allowed to stand the precedent  notion that a biological parent can deny access of a mutually planned on, conceived and raised child, or children, to a non-biological parent.  In essence, the court relied solely on the fact that the parties had entered into a Vermont Civil Union to establish parental rights between Debra H. and her child.  That in itself has many repercussions for the dissolution of Vermont Civil Unions in New York, as well as other parents who have not undergone a Second Parent Adoption, which was specifically authorized by this very same court in 1995. 

The court today said that without a Vermont Civil Union in this particular case, there would be no relief for a non-biological parent seeking visitation with a child who may be seriously hurt by the denial of access to both parents.  Only a Second Parent Adoption would secure those rights.  The court steered clear of addressing the best interests of children in such a precarious position, which seems disingenuous as the best interests of the child have always been the touchstone of family law in New York State.

This decision opens the door to challenges based on marital status, but may require couples to have lived in a jurisdiction that honors their marriage before honoring it here in New York.

The reality of this decision is that the court has punted the issue of having family law catch up to modern families to the Legislature.  If past is prologue, we have an uphill battle ahead of us and the only lesson to take from this decision is to do everything you can to secure your rights to any children born into a nontraditional family through Second Parent Adoption after a child is born, and through marriage or civil union prior to the birth of any children.  That said, the court’s decision fails to protect male litigants as their parental rights cannot be effectively established through marital status.

in Adoption / Legal / Legislation / Parenting / Second Parent Adoption / Surrogacy  by Anthony Brown 1 comments

Colorado gay couples OK’d to adopt. New legislation allows joint adoption of children by unmarried couples.

Tue, 05/15/2007 – 9:36am by Community Editor @ ProudParenting.com

Colorado Governor Bill Ritter recently signed legislation that allows same-sex couples to adopt.

The Colorado Springs Gazette.com reports that House Bill 1330 by Majority Leader Alice Madden, D-Boulder, allows the joint adoption of children by unmarried couples, including gays and lesbians, unmarried heterosexual partners and relatives seeking to help single mothers.

Colorado becomes the 10th state in the country to allow such second-parent adoption.

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

Birth certificates to reflect New York state gay-marriage move

Sat, 12/13/2008 – 12:29pm by Jeff of ProudParenting.com

The AP reports that New York state officials will now let married same-sex couples list both their names on their children’s birth certificates.

The decision, which echoes similar provisions in states that allow gay marriages or civil unions, is one of many changes since Gov. David Paterson ordered state agencies in May to respect out-of-state gay marriages.

The state Health Department said Friday it had agreed to the change, which came after a lesbian couple who are expecting a baby filed a lawsuit. The change would apply statewide except in New York City, which is considering revamping its own birth certificate forms to accommodate same-sex couples.

Under state law, a woman’s husband is automatically deemed a parent of a child the pair conceives through artificial insemination, whether or not he is the genetic father. Gay couples have complained about having to jump through legal hoops to secure equivalent parental rights.

Carolyn Trzeciak and Nina Sheldon Trzeciak of Ulster County, who got married in Canada in 2006, sued last month. Nina Sheldon Trzeciak is carrying their first child, conceived through in vitro fertilization.

The couple argued they both should be designated as parents under Paterson’s directive. The governor told state agencies to make sure policies and regulations treat married same-sex couples equally, saying a recent court ruling suggests they would otherwise risk discrimination claims.

Gay couples may be able to secure a second parent’s rights through adoption. But having their names on a child’s birth certificate immediately gives both spouses such rights as nursery visits and information on the child’s medical condition, the lawsuit said.

“That gives them equal treatment,” said the Trzeciaks’ lawyer, Melissa B. Brisman of Park Ridge, N.J.

The Health Department said in a statement that it had been exploring how to apply Paterson’s directive to birth certificates for some time but arranged a quick resolution for the couple because the baby was due Friday.

Massachusetts is now the only U.S. state that allows gay marriages; California briefly did until voters banned it last month. Some other states let same-sex couples enter into civil unions that offer some of marriage’s legal advantages.

States that allow gay marriage or civil unions have made provisions for birth certificates to list both partners’ names, said Susan Sommer, senior counsel for the gay rights advocacy group Lambda Legal. It was not involved in the Trzeciak case.

While the group urges couples to cement both parents’ rights through an adoption or other court order, Sommer said getting the names of both parents on the birth certificate is a great help to the children.

The Alliance Defense Fund, a conservative legal organization based in Scottsdale, Ariz., is challenging various attempts to extend spousal rights to gay couples in New York. In September, a Bronx judge threw out the group’s challenge to Paterson’s directive; the organization is appealing.

The alliance argues that only the Legislature, not the governor, has authority to recognize out-of-state gay marriages.

in Adoption / Estate Planning / Second Parent Adoption  by Anthony Brown 0 comments