Parentage Orders New York

Parentage Orders in New York have just become an easier option for lesbian families.

Parentage orders in New York are a reality after the passage of the Child Parent Security Act, a long-awaited statute that acknowledges how gay and lesbian couples and individuals have families and offers a direct course to legal parentage.  As of February 15, 2021, New York has joined the legion of states that not only legalize gestational surrogacy, but also recognize how gay and lesbian couples and individuals have families and assist them in protecting those families with a direct pathway to parenthood.parentage orders New York

Parentage Orders in New York are now a reality.  Before February 15, 2021, the only clear way of establishing parentage in New York was through second or step-parent adoption.  Many couples still choose to establish parentage through the adoption process because it is the gold standard of parentage.  There is Supreme Court precedent for the recognition of adoption orders when the court refused to hear a case challenging the validity of an adoption order for a gay couple.  There are still specific indications when adoption is preferred over a parentage order, however, if you are not a couple that travels Internationally or if you have no plans to move to a gay-unfriendly state, the New York statute will provide the protection your family deserves.

The process for a parentage order differs slightly between Counties, but there is some regularity that you can count on.  First, the question of jurisdiction remains one that hinges on the cost of the process.  If you choose to file in Supreme Court, you will receive an Order from that court that will most likely result without a court appearance.  There are some costs associated with this method.  When you file in Supreme Court, one of the procedural elements is the filing of a Request for Judicial Intervention (RJI), which comes with the cost of a $350.00 filing fee.  When you file in Family Court, the case is heard by a Support Magistrate.  There is no filing fee, however, there may be an appearance required. 

parentage orders new yorkIf COVID-19 restrictions apply, appearances are virtual.  This means that you will not have to go to court but log in to a virtual hearing online.  COVID-19 will at some point in the future be an issue of the past.   Families will have to weigh the costs of filing and the costs of appearing in court. 

The specifics of filing will include a Petition, which collects the necessary information the court needs to process the request.  The court also wants to hear from either the clinic that facilitated the pregnancy, the anonymous provider of sperm or the petitioners if they used home insemination to get pregnant.  The Court wants to make sure that all Parties who should be notified of the proceeding are accounted for.   The Petition verifies that the petitioning couple has lived in the State of New York for the last six months, that they consented to the Assisted Reproduction, the proposed name of the child and when the child is due to be born, or when they were born. 

For couples who have their families with the assistance of an anonymous sperm donor, the court will require a letter from the sperm provider to affirm that the donor was indeed anonymous and has no legal parentage rights to the child.  For couples who work with a known, or directed, donor, the court will view a Known Donor Agreement as proof that the donor does not intend to be a parent.  If there is no Agreement in place, your Attorney will have to draft an Affidavit that the Donor would sign to affirm their intentions to the court.  The Support Magistrate hearing the case may also request that your donor appear at your hearing.

Parentage Orders New York

The fact that we now have Parentage Orders in New York is a huge step forward for LGBTQ families.  While some couples will still choose to create legal parentage through second or stepparent adoption, we have another, lower cost option.  Parentage Orders in New York are a simple, straightforward way to affirm a family’s legal status and are available in many States across the Country.  Thanks to The Child Parent Security Act, our families are more secure and the Courts are learning more about how we have our families and protect them from challenge.

 

By Anthony M. Brown, June 1, 2021. www.TimeForFamilies.com

 

 

in Anonymous/Known Donation / Assisted Reproductive Technology / COVID-19 / Featured Articles / IVF / Known Donor / Legal / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

Couple Forced to Adopt Their Own Children After a Surrogate Pregnancy

Tammy and Jordan Myers will have to adopt their twins after two Michigan judges denied them parental rights because the children had been carried by a surrogate.

The nursery in the home of Jordan and Tammy Myers in Grand Rapids, Mich., is painted in shades of gray, white and midnight blue for the couple’s newborn twins. Their 8-year-old daughter, Corryn, can’t stop talking about how excited she is to finally be a big sister.compensated gestational surrogacy

But before the state of Michigan will recognize the couple as the babies’ legal parents, the Myerses will have to adopt them.

That’s because the babies were not carried by Ms. Myers, and Michigan law does not automatically recognize babies born to surrogates as the legal children of their biological parents. As a result, the birth certificates for the twins, a boy named Eames and a girl named Ellison, list the surrogate and her husband as the parents, not Jordan and Tammy Myers.

Twice, judges have denied their requests to be declared the legal parents of the twins, even though a fertility doctor said in an affidavit that the babies are the couple’s biological children. In separate affidavits, the surrogate and her husband have agreed that the Myerses are the parents of the twins.

The Myerses have started the adoption process, which will entail home visits from a social worker, personal questions about their upbringing and their approach to parenting, and criminal background checks. They said they have already submitted their fingerprints.

Being forced to prove they are fit to adopt their own children is “offensive,” said Mr. Myers, 38.

“We have successfully raised a loving and caring 8-year-old child and that’s not taken into account when you’re going through this process,” he said.

Instead of looking forward to leaving the hospital with the twins, who were born eight weeks premature on Jan. 11, the couple must get reference letters to send to the state. Ms. Myers said they needed “temporary permission” from the surrogate, Lauren Vermilye, to bring the babies home.

NYTimes.com, by Maria Cramer, January 31, 2021

Click here to read the entire article.

 
in Ethics / In the News / Legal / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments

The Hidden Costs Of Starting A Family When Queer

The Hidden Costs Of Starting A Family When Queer

The Hidden Costs Of Starting A Family When Queer – Jac Ciardella sat at his kitchen table in New Jersey and inserted a syringe into a navel orange. His hand flexed as he squeezed the plunger, pushing water into the fruit’s rind. He needed the practice. He was about to inject fertility drugs into his wife, Candice Ciardella, and he wanted to get it exactly right. He knew how painful it could be. gay money
 
Just a year earlier, in February, 2017, the spouses’ positions were swapped: Candice, now 37, was administering the shot for Jac, who’s 40. Jac is a transgender man, and both he and his wife have undergone in vitro fertilization (IVF) in order to have a child.
The couple’s fertility journey started in 2015. The original plan had been to use donor sperm to impregnate Candice. But after six unsuccessful attempts at intrauterine insemination (IUI), they decided to try IVF on Jac, with the idea that Candice could carry one of his fertilized eggs. Candice began giving her husband shots of the hormone human chorionic gonadotropin (hCG), to make him produce extra eggs. 
 
“For years, needles were just part of the routine for us,” Candice says. “I think we had more empathy for one another because we both knew what it felt like. When it comes to the shots and the appointments, not many spouses can say: ‘I know exactly what you’re going through.’ We can.”
 
The process was emotionally taxing for both of them, but especially for Jac. “Someone’s head is between your legs, and it’s awkward for anyone — but, being transgender, it’s extra awkward,” Jac says. “Mentally, I’m feeling like I’m not supposed to be in that position. For me to feel comfortable going through IVF while still keeping my sanity and my integrity was huge.” 
 
Three cycles of IVF weren’t successful, and testing revealed no clear issues that would cause infertility. So in 2018, the Ciardellas decided to try IVF again, on Candice this time. 
 
“It was emotionally defeating. If you can survive IVF and infertility, your marriage should be able to survive just about anything else,” Jac says.  “It’s humbling and debilitating and cruel.” Adding to their stress was the financial strain. The Ciardellas were acutely aware that each failed cycle of IVF and IUI was costing them — big time. “You’re talking about tens of thousands of dollars going out the door,” he says. “It takes toughness.”
Jac and Candice’s story is unique, but the financial burden they faced is not. Most LGBTQ+ couples who want children have to confront the fact that starting a family will be expensive. Adoption, fertility treatments, and surrogates are all costly, often lengthy processes.
 
The Ciardellas say their insurance only covered their testing for issues that could cause infertility, such as blocked fallopian tubes. They had no financial help with the sperm, the IUIs, or the rounds of IVF. All told, over the course of three years, the couple would spend about $120,000 on four IVF cycles, $20,000 on fertility drugs, plus over $10,000 on IUI. “I got those numbers imprinted on my brain,” Jac says. “We always knew that to be parents, we’d need to be cutting into a good chunk of change — but we didn’t expect it to be quite that much.” 
 
Sandy Chuan, MD, a fertility specialist at San Diego Fertility Center, confirms that the costs of conceiving via fertility treatments can be shockingly high for LGBTQ+ couples. 
 
She says sperm samples can cost $600 to $900 per vial. One IUI attempt without insurance costs about $700 to $1,000, plus the donor sperm. “I usually tell my clients to ballpark around $1,500, but they might need to do three to six rounds,” Dr. Chuan explains. If IUI is unsuccessful, the next step is IVF, which Dr. Chuan says can cost as much as $15,000, plus $4,000 to $5,000 for medications to stimulate egg production. The price point for procedures can vary by state and market.
 
Refinery29.com, by Molly Longman, June 15, 2020
 
Click here to read the entire article.
in Assisted Reproductive Technology / Egg Donation / IVF / Recently Added / Science / Step Parent Adoption  by Anthony Brown 0 comments

Effect of COVID-19 on LGBTQ Family Planning

The Effect of COVID-19 on LGBTQ Family Planning is evolving and far reaching.  It is also temporary.

The Effect of COVID-19 on LGBTQ Family Planning – The COVID-19 pandemic has affected us all in ways more numerous to describe.  Those of us with families have had to learn about home schooling, some the hard way (me).  Everyone has had to adjust to what essentially has become a home quarantine situation and the emotional effects of social isolation.  And we are all witness to the world going through a major change which will create a new reality for everyone when we emerge on the other side.  But we will emerge on the other side. effect of COVID-19 0n LGBTQ family planning

While I myself have experienced the loss of a friend due to the virus, as well as the infection of a family member, I know that we all are doing our best to maintain a sense of normalcy and peace within.  Practicing this type of self-care will help mitigate the effects of COVID-19 on LGBTQ family planning.

The effects of COVID-19 on LGBTQ family planning are very real.  I have said in the past that there are no accidental pregnancies in the LGBTQ community.  Everything is carefully thought out and planned in advance.  However, the COVID-19 virus has created specific and real-world disruptions to our ability to create families.

For example, those were using, or planning to use, an IVF clinic for either surrogacy, artificial insemination (AI), intrauterine insemination (IUI) or in vitro fertilization (IVF) procedures have experienced an actual shut down of normal operations.  The clinic administrators that I have spoken with are optimistic that once the virus is contained, or at least the infection curve has flattened, that they will resume normal operations.  For the time being, they are following ASRM guidelines.  But they will also be dealing with backlogs of patients and procedures that may cause further delay in your family building timeline. 

effect of COVID-19 0n LGBTQ family planningFor lesbian couples who have thoughtfully chosen to use a clinic to assist in insemination, this delay is not only frustrating, it can also change the projected timeline of their families.  Even those couples who choose anonymous sperm donors will most likely have to wait an indefinite period of time to undergo AI or IUI procedures.  For those who choose known sperm donors, the essential DNA testing that is a prerequisite for clinic inseminations will also be on a delayed time schedule.

Gay male couples who are considering surrogacy are facing an even more complicated challenge.  First, there will inevitably be a delay in the embryo creation aspect of the beginning of their journey due to IVF clinic shutdowns.  If an intended parent already has embryos created, perhaps from a previous surrogacy journey, they may be in a better position.  However, they will also experience a delay in embryo transfer until restrictions on IVF clinic activities are lifted.  A silver lining is that they will be able to match with surrogates sooner, thereby shortening the time to pregnancy once those IVF restrictions are lifted.

Lesbian couples who choose a known sperm donor and home insemination may be the only group in our community who might not experience the delays discussed above.  However, these types of inseminations will not have the benefit of genetic testing.  Nor are they technically “legal” in some states (Missouri, Georgia, Oklahoma and Colorado) because they are not performed by a licensed professional.  It is key that if you are considering home insemination that you consult with an Assisted Reproductive Technology (ART) attorney in your area and, for the safety and security of all parties, must have carefully prepared legal agreements in place and a second or stepparent adoption plan incorporated into that agreement.

For those in the midst of a surrogacy journey, perhaps awaiting their carrier to give birth, the effects of COVID-19 on LGBT family planning can be particularly frustrating due to travel and hospital restrictions.  Many hospitals are restricting the number of people who can be in a delivery room, particularly if they have traveled from an area that has been severely affected by COVID-19, like New York, Washington or California.  Be prepared for snags in the road and lots of patience.  You will go home with your child!  You may have to be flexible in your travel plans, i.e. be prepared for long drives instead of air travel.

For lesbian couples and gay men with surrogates who are pregnant, there is a limited study from Wuhan China showing that babies of mothers with the virus were not effected, meaning that there was no vertical transmission.

Couples considering adoptions are also at a bit of a standstill depending on where they live in the US.  Most state court systems have closed to all but “essential” proceedings.  While I would argue that adoptions are essential, the courts have determined that they are not.  I have several cases now awaiting the scheduling of finalization hearings that are simply on hold until the pandemic subsides.  This includes private placement adoptions and step or second parent adoptions.  This does not mean that making connections with birth parents must be put on hold, but the legal work that is required to effectuate the adoption may be delayed, causing additional anxiety.Effect of COIVD-19 on LGBTQ family planning

You may be asking what you can do to mitigate the effects of COVID-19 on LGBTQ family planning.  I know that I am.  Here are a few options that you can consider now.

  1. Make sure that your Estate Plan is in place and up to date. Ask yourself, “Do I need a Will?”  If you have named guardians for children in your Wills, please review to make sure that they are current and correct.  If you have not created an Estate Plan, now is a good time to do the work to ensure that you have prepared for the unexpected.  Here is a list of the documents you should be considering for your estate plan.  We have also seen a relaxation of Notary laws allowing for online notarizations.  This can make the execution of documents much easier in certain states.
  2. If you have been thinking about creating your family, now is a great time to do more research. Men Having Babies is a great resource for surrogacy.  “If These Ovaries Could Talk” is a wonderful podcast for all LGBTQ family planning.  This should include speaking with your friends who have had children to get their perspectives on the process.  It is also a really good time also to start thinking about the financial implications of having a family.  Many of us will be irreparably financially harmed by the COVID-19 pandemic.  Many of us will have to rethink the timelines we had anticipated would apply to our family planning journeys.  You may want to meet with a financial professional to discuss the best way to get your family plan back on track.
  3. Practice self-care! Whether you have children or not, staying calm and finding peace in your heart will help you get through this.  While you might feel alone, you are not alone.  Reach out and find solace in your friends and family if you can.  Take walks if you can and get outside.  Remind yourself of what will be on the other side of this experience.

If you have specific questions about how to address the effects of COVID-19 on LGBTQ family planning and estate planning, and you think I can be of help, please do not hesitate to reach out to me.  Thank you for taking the time to read this and remember to breathe.

in COVID-19 / Featured Articles / IVF / Legal / Science / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Anthony M. Brown Featured on the Podcast, The Mentor Esq.

The Mentor Esq., a new legal podcast, recently featured Anthony M. Brown, founder of Time For Families Law, PLLC.

The Mentor EsqThe Mentor Esq. was founded by Andrew J. Smiley, the famed personal injury attorney in New York City, to help younger attorneys, and seasoned attorneys, to learn more about specific areas of the law and about the profession of law itself.  Episodes of The Mentor Esq. cover such topics as civil rights work to women in the law, as well as the ABCs of trial work, from opening statements to cross examination.

This is the first season of The Mentor Esq. and Andrew is currently planning for season 2.  While there are numerous areas of the law, and attorneys, that he could focus on, I am grateful that Andrew allowed me to tell my story and share my concerns for the future of LGBTQ law in New York, as well as in the Country.

Anthony’s Start in The Law

Andrew reached out to Anthony to join The Mentor, Esq. podcast to discuss two separate issues.  On episode four of the podcast, Anthony discusses how he came to the law after a career as an actor and a medical massage therapist.  Andrew asked Anthony about how he started his practice and who guided him along the way.  Click here to listen to Anthony talking about his pathway to the law.   Younger attorneys will find this episode particularly interesting because Anthony discusses new ways to look at your career, especially at its inception, by thinking outside of the box and planning ahead for what you want your legal practice to focus on and how it intersects with your personal life.

LGBTQ Family Law

Andrew asked Anthony back to the podcast to discuss more specific topics such as LGBTQ family formation and the current state of surrogacy in New York.  With current legislation in New York up for a vote very soon, Anthony discusses the specifics off The Child Parent Security Act – the pending law which would legalize compensated surrogacy and provide for parentage orders, which would allow for lesbian couples with known sperm donors to avoid the second parent adoption process altogether.  The Child Parent Security Act would bring New York’s family law into the 21st century.

If these issues mean something to you, it is definitely worth your time to check out The Mentor Esq.  A full episode list can be found here.

Anthony M. Brown, November 26, 2019

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

in Anonymous/Known Donation / Assisted Reproductive Technology / Personal Stories / Politics / Recently Added / Second Parent Adoption / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Disappointed Gay Dad Asks Supreme Court to Overturn Key New York LGBT Family Law Precedent, Brooke S.B.

Disappointed Gay Dad Asks Supreme Court to Overturn Brooke S.B., aKey New York LGBT Family Law Precedent

In Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), the New York Court of Appeals overruled a 25-year-old precedent and held that when there is clear and convincing evidence that a same-sex couple agreed to have a child and raise the child together, where only one of them will be the child’s biological parent, and both of the parties performed parental duties and bonded with the children, the other parent would have the same rights as the biological parent in a later custody dispute.overturn Brooke S.B.

Now a gay biological dad who lost custody of twins to his former same-sex partner by application of the Brooke S.B. precedent asked the U.S. Supreme Court on May 10 to rule that his 14th Amendment Due Process rights have been violated. Frank G. v. Joseph P. & Renee P.F., No. 18–1431 (Filed May 10, 2019); Renee P.F. v. Frank G., 79 N.Y.S.3d 45 (App. Div., 2nd Dep’t, May 30, 2018), leave to appeal denied, 32 N.Y.3d 910 (N.Y.C.A., Dec. 11, 2018).

Frank G. and Joseph P. lived together in a same-sex relationship in New York and made a joint decision to have a child. Joseph P.’s sister, Renee, had previously volunteered to be a surrogate for her gay brother, both donating her eggs and bearing the resulting child or children. Renee became pregnant through assisted reproductive technology using Frank’s sperm. The three entered into a written agreement under which Renee would surrender parental rights but would be involved with the resulting child or children as their aunt.

After the twins were born, both men participated in parenting duties. Joseph sought to adopt the twins under New York’s second-parent adoption rules, and he remembered completing paperwork that Frank was supposed to complete and submit, but that never happened. The men were not sexually exclusive and eventually arguments about Frank’s sexual activities led to Joseph moving out. He continued to have regular contact with the children until Frank suddenly cut off contact after another argument. Frank subsequently moved with the children to Florida in December 2014. Frank did not notify Joseph or Renee of that move. When they found out, Joseph filed a guardianship petition. (Under New York precedents at the time, he did not have standing to file a custody petition.)

As lower court rulings were questioning the old New York precedent, Joseph withdrew his guardianship petition and both he and Renee filed custody petitions. Renee clearly had standing to seek custody as the biological mother who had remained in contact with the children.

Frank moved to dismiss the custody lawsuit, but the trial judge, Orange County Family Court Judge Lori Currier Woods, rejected the motion, holding that both Joseph and Renee had standing to seek custody and ordering temporary visitation rights for Joseph and Renee while the case was proceeding. Frank appealed to the Appellate Division, 2nd Department. While his appeal was pending, the Court of Appeals decided Brooke S.B.. Applying that case, the Appellate Division affirmed the trial court’s standing decision in favor of Joseph and Renee and returned the case to Judge Woods.

After a lengthy trial, which the trial court’s unpublished opinion (reprinted in the Appendix to the cert petition) summarizes in detail, the trial court awarded custody to Joseph, with visitation rights for Frank. Frank appealed again. The Appellate Division affirmed the trial court’s order. Frank unsuccessfully sought review by the New York Court of Appeals.

Frank is represented on the Supreme Court petition by Gene C. Schaerr of the Washington, D.C. firm of Schaerr/Jaffe LLP. Schaerr, a Federalist Society stalwart and a Mormon from Utah, where he graduated from Brigham Young University’s Law School, was prominently involved in the marriage equality battle, representing the state of Utah in defending its ban on same-sex in federal court, and he submitted an amicus brief to the Supreme Court in Obergefell v. Hodges on behalf of conservative legal scholars who argued that allowing same-sex marriage would be harmful to the institution of marriage, presenting social statistics from Europe purporting to show that the adoption of same-sex marriage in some countries caused rates of heterosexual marriage to fall. Social scientists have contended that the downward trend in marriage rates in Europe was well under way long before the countries in question extended legal recognition to same-sex relationships, and causation was not shown. In other words, Schaerr is an anti-LGBT cause lawyer, and the slanting of facts recited in the Petition for Frank as compared to the detailed fact findings summarized in the trial court’s unpublished opinion, which is appended to the cert Petition, is striking.

Family law is primarily a matter of state law, but the U.S. Supreme Court occasionally gets involved in family law disputes that raise constitutional issues. Since early in the 20th century, the Supreme Court has ruled that a legal parent of a child has constitutional rights, derived from the Due Process Clause, relating to custody and childrearing. The Petition argues that the rule adopted by the New York Court of Appeals and the appellate courts of some other states, recognizing parental status for purposes of custody disputes between unmarried same-sex partners, improperly abridges the Due Process rights of the biological parents.

Some state courts have issued decisions similar to Brooke S.B., while others have refused to recognize standing for unmarried same-sex partners to seek custody. There is definitely a split of authority on the issue, but it is not necessarily the kind of split that would induce the Supreme Court to take a case. The Supreme Court is most concerned with variant interpretations of federal statutes or of the U.S. Constitution, but the state court cases addressing the issue of same-sex partner standing have generally not discussed constitutional issues and have reached their conclusions as an interpretation of their state custody statutes. Although it is true that same-sex partner parental rights vary as between different states, this does not necessary create the kind of patchwork as to federal rights upon which the Court would focus.

TheMedium.com, by Art Leonard, July 12, 2019

Click here overturn Brooke S.B. to read the entire article.

in Legal / Recently Added / Step Parent Adoption / Supreme Court  by Anthony Brown 0 comments

Legal Basics for LGBTQ Parents

It’s never been easier for LGBTQ people to become parents.

We can now adopt and serve as foster parents in every state in the country. Thanks to advancements in assisted reproductive technology, otherwise known as ART, and innovative co-parenting and known-donor arrangements, we’re also having biological children in greater numbers. llgbtq parentingDespite this progress, a complex network of state laws, regulations and restrictions affect many of our most common paths to parenthood, meaning would-be LGBTQ. parents can face a far more complicated legal landscape than our straight counterparts. 

Legal concerns for LGBTQ people are generally impacted by three factors: the state you live in, your preferred path to parenthood and your relationship status. To gain a better understanding of each, I interviewed four experts at some of the country’s top LGBTQ legal and policy organizations.

THE GIST

  • Know the laws in your state; your legal outlook can vary widely depending on where you live. 
  • Your preferred path to parenthood (donor arrangements, adoption or fostering) will present you with a specific set of legal considerations. 
  • Other legal concerns arise depending on your relationship status: whether you’re single, in an unmarried relationship or married.
  • If you are not biologically related to your child, legal experts recommend taking steps to protect your legal status as a parent, even if you’re married to your child’s biological parent. 
  • Parenthood for LGBTQ people doesn’t always come cheap — but there are some ways to offset the costs. 
  • If you encounter obstacles, don’t give up. An experienced family lawyer is often familiar with legal workarounds, even in states with unfavorable laws for the LGBTQ community.

NYTParenting.com by David Dodge, May 7, 2019

Click here to read the entire interactive article.

in Anonymous/Known Donation / Assisted Reproductive Technology / Known Donor / Legal / Parenting / Recently Added / Second Parent Adoption / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments

Kentucky Appellate Court Rejects Lesbian Co-Parent Custody/Visitation Claim, Reversing Family Court

kentucky
Not So Welcome

Adopting a narrow construction of the Kentucky Supreme Court’s historic same-sex co-parent ruling, Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald, and ruled that Teri Whitehouse, the former union partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship.  From comments in concurring opinions, it seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights.  The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.

The case is Delaney v. Whitehouse, 2018 WL 6266774, 2018 Ky. App. Unpub. LEXIS 844 (Ky. Ct. App., Nov. 30, 2018).  The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court.  The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.

The opinion for the panel by Judge Robert G. Johnson (whose term expired after he wrote the opinion but before it was released by the court) accepts Judge McDonald’s factual findings, but disputes their legal significance.  McDonald found that the parties were in a romantic relationship and participated jointly in the decision to have a child, including the insemination process.  “The parties treated each other as equal partners and clearly intended to create a parent-like relationship” between Whitehead and the child, found Judge McDonald, who also found that “they held themselves out as the parents of this child since before conception.  They engaged in the process of selecting a [sperm] donor together, they attended appointments prior to insemination together, [Whitehouse] was present for the birth, and she has been known to the child as Momma.  The parties participated in a union ceremony, after the birth of the child, and they held themselves out as a family unit with friends and family.”

by Art Leonard, artleonardobservation.com, December 8, 2018

Click here to read the entire article.

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

BUT, I’M ON THE BIRTH CERTIFICATE!

Why a Birth Certificate Alone Is Not Sufficient Protection for Your Legal Parentage Rights

A common misconception among LGBT parents is that being listed as a parent on a birth certificate is all that is needed to establish one’s legal parentage to their child.  If only it were so simple.birth certificate

I’d like to give you an example to illustrate the issue more queerly.  Close your eyes and hearken back to the days of yore… It’s late 2013, and the Supreme Court has required the federal government to recognize same sex marriages from the states that allow them.  Nevertheless, we were in a legal enigma: what happened to those marriages when they crossed state lines from a marriage equality state to a non-marriage equality state? Lauren Beth Czekala-Chatham and Dana Ann Melancon can tell you what happened to them…the state no longer recognized their marriage.  So, when they moved from California to Mississippi and decided to get divorced, they were in a bit of a pickle. Mississippi decided that their marriage was against the state’s public policy, and therefore, the divorce and division of marital assets that they sought was not available to them.

“How could this have happened?”  You may ask. “What about the Full Faith and Credit Clause from the US Constitution?”  Doesn’t it require that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”?  Well, the Supreme Court has held that the Full Faith and Credit Clause is meant to apply to judgments and court orders from one state to the next, but it does not hold the same requirements for laws or administrative records, like marriage certificates.  So, their valid marriage certificate in California was worth the paper it was written on when they moved to Mississippi. Fast forward to Obergefell, and marriage equality is now the law of the land, and the Supreme Court has held that marriage cannot be denied to same sex couples, but that was an issue of individual rights under the Constitution, and not an issue of recognition of administrative records across states.  

So, the issue that existed for marriage certificates a few short years ago still exists for birth certificates today.  You and your co-parent may both be on the birth certificate in your child’s birth state. But, what happens if you get into a car accident on a cross country road trip in a state that decides that your birth certificate is against public policy and therefore need not be recognized?  Seems like a pretty tragic time to be left out in the cold and unable to make medical decisions for your child, especially if your co-parent is not with you or is incapacitated.

by Amira Hasenbush, LGBTBar.org, October 15, 2018

Click here to read the entire article.

in Known Donor / Legal / Recently Added / Second Parent Adoption / Step Parent Adoption  by Anthony Brown 0 comments

The Anthony Kennedy Retirement  – a Death Knell for LGBT Rights in the Court?

The Anthony Kennedy retirement was a shock to many, as was his pro-LGBT legacy.  Whether the Kennedy legacy will live on with a new Supreme Court remains to be seen.

Supreme Court Senior Associate Justice Anthony Kennedy was responsible for the first pro-LGBT Supreme Court decision in 1996, when Colorado, by voter ballot, amended its state Constitution to prohibit the state from protecting gay people from discrimination.  This decision, Romer v. Evans, started a conversation among the Justices that would continue on through the marriage cases and beyond the Anthony Kennedy retirement.Anthony Kennedy retirement

Anthony Kennedy laid that ground work for marriage equality by decriminalizing sodomy in the Lawrence v. Texas case, decided in 2003.  I had the privilege of working at Lambda Legal, the attorneys for Petitioner Lawrence, while preparing for that case.  Sodomy was a crime only for gay people in Texas and a conviction of the crime of sodomy was used as an excuse for employment discrimination, removal of children and much more.  This landmark ruling laid the foundation upon which much of our current LGBT jurisprudence rests.

Kennedy authored the Windsor case in 2013 and the Obergefell case in 2015, both of which solidified marriage equality and the federal recognition thereof.  But he also joined the majority siding against LGBT issues in several cases, most recently in the Masterpiece cake shop case.

In order to predict the future of a post-Kennedy Supreme Court’s treatment of LGBT rights, we need to dispense with a few misconceptions.  First, the Republican senate will not hold themselves to the same standard they held President Obama in his attempt to fill the Scalia vacancy.  If they did, they would wait until after the 2018 midterm elections to allow a new, possibly democratic, senate the right to vote on President Trump’s next pick.  Do not hold your breath, but do call Susan Collins and Lisa Murkowski!

Second, the Anthony Kennedy retirement will not move current right-leaning Justices to the left in order to preserve the very delicate balance between the conservative and progressive wings of the court.  Roberts, Thomas, Alito and Gorsuch have made their opinions clear on previous LGBT matters before them and another conservative voice on the court will tip the balance against progressive protection of LGBT rights for generations to come.

Finally, there are real and relevant conflict of interest issues which may directly affect criminal and civil prosecutions directed at the very president that would be nominating Supreme Court Justice who would be hearing them.  If there were ever a “litmus test” issue, it is not abortion or LGBT rights, it is the potential ability of a sitting president to be indicted or prosecuted.

Anthony Kennedy retirementWhat is most troubling about Anthony Kennedy’s legacy is what he did not do.  Kennedy was a wordsmith, much to the chagrin of many in the legal community.  He never clearly defined what level of legal scrutiny gay people deserved in equal protection cases.  The equal protection clause of the 14th Amendment to the US Constitution provides for different levels of protection depending on which category the discriminated class falls into.  The legal scrutiny that a class receives often determines whether the discrimination is permissible or not.  The key indicators of whether a case deserves heightened scrutiny were, perhaps purposefully, left out of Kennedy’s written decisions regarding LGBT litigants.  He shied away from describing gay people as a “subject classification.”  

Kennedy did not discuss whether a “compelling state interest” existed to justify the discrimination, another word indicator of common equal protection analysis.  My fear is that the absence of a clear direction for equal protection scrutiny will now be left in the hands of a decidedly more conservative court.  Make no mistake; they will not speak around the issue as Kennedy was accused of doing.

The Anthony Kennedy retirement will, and should, cause LGBT individuals, couples and families to reevaluate their own legal affairs.  The good news is that the most important issues, such as estate planning, second and step adoption protections and anti-discrimination policies are state based.  This cuts both ways if you live in a state which does not provide adequate protections for LGBT Americans. 

While it is unlikely that the Supreme Court would overturn their 2016 decision in V.L. v. E.L., a case which required states to recognize the second parent adoptions of other states, of particular interest to gay couples moving to less LGBT friendly states, a newly conservative court may take the opportunity to allow a state to deny recognition of a pre or post-birth order for a gay male couple establishing parentage after surrogacy from another state.  While this fact pattern has not yet arisen, it is foolish to deny that anti-LGBT organizations will be looking for ways to chip away at the protections we have fought so dearly for.

If the Anthony Kennedy retirement can teach us anything, it is that being proactive in the creation and protection of our families is no longer optional, it is imperative.  Create your estate plan if you do not have one.  If you have been putting off your second parent adoption, don’t!  Give to Lambda Legal, the ACLU, NCLR and GLAD.  If the senate allows Trump to nominate and appoint a new Justice to the Supreme Court, we, as LGBT Americans, will be living with that choice for the next generation.  That is the sad and simple reality. 

By Anthony M. Brown, June 29, 2018

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

in Estate Planning / Featured Articles / Legal / Second Parent Adoption / Step Parent Adoption / Surrogacy  by Anthony Brown 0 comments