New York’s Changing Family Law

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

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

New York's changing family law

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

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

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

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

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Estate Planning Basics for Gay Couples

What are the estate planning basics that all gay couples need to know? This article will give you the information you need to take those first steps toward protecting your family.

Some of the most common errors that gay couples make regarding estate planning basics can be corrected fairly easily. Before we discuss these, it is important to know that over half the American public, regardless of orientation, do not have a Will. The number one reason I hear is, “I don’t have anything so why do I need a Will?” The truth is that most people, when they know what the state requires when someone dies without a Will, realize that they have more than they think and that they want to decide what happens when they die.

tips for estate planning
Maximizing non-probate assets – The rule of estate planning basics is to know what assets a Will passes to your desired beneficiary. Wills cover probate assets, or assets held solely in your name. Examples include real property, bank accounts and personal belongings. Personal belongings are key because many people do not like the idea of a distant relative rooting through their most cherished items after death. Wills do not pass non-probate assets, or assets held jointly with someone else, assets held in trust for someone else or any asset that has a designated beneficiary, like an insurance policy, a 401(k) or an IRA retirement plan.

Property ownership – The most valuable asset for many people is a home, condominium or cooperative apartment. If you own that property jointly as a married couple (Tenants by the Entirety) or with someone you are not married to (joint tenants with right of survivorship), then that property will pass directly to the surviving co-owner. If, however, you are not married and own the property with another person and the title to the property simply states both names, without the words, “joint tenants with right of survivorship,” then your half interest in the property must pass through your Will. This form of ownership is called “tenants in common.” One of the most estate planning basics is to verify on your title document exactly how you own that property with another person.

Documents everyone should have – While marriage provides some very important protections for gay couples, it is always advisable to have a comprehensive estate plan to make sure that you have control over you body and your assets. The top 6 document list of estate planning basics include the following:
• Last Will and Testament – A Last Will and Testament allows the drafter of the document to control the distribution of their assets upon death.
• Durable Power of Attorney – This document allows the drafter to authorize another person to make financial decisions for them. It authorizes, among other things, payment of debts, collection of payments, redistribution of assets, withdrawal of assets from a bank account and the sale of property.
• Designation of Guardian for Property Management and/or Personal Needs – If a person were to be judicially declared incompetent or incapable of managing their property or themselves, the court would appoint a guardian for that purpose. The guardian is usually a family member. This document allows the Principal to designate who that guardian would be.
• Living Will – A Living Will states exactly what measures a person wants or does not want if certain critical and specifically outlined medical conditions arise.
• Medical Power of Attorney / Health Care Proxy – This document allows a designated person to have access to medical records and make specified medical decisions for the Principal.
• Priority Visitation Directive – A Priority Visitation Directive specifies who the Principal prefers to have priority visitation privileges, usually over family members. This is particularly important if you are no married.
• Affidavit of Burial or Cremation – This document ensures that a funeral director or funeral home administrator follows the instructions given them by the person designated in the affidavit.

Without estate planning basics – If you are married, now that marriage equality is the law of the land, certain protections are guaranteed. Your assets will pass to a surviving spouse, and you children, in defined percentages according to the state in which you live. Your spouse will be allowed to make medical decisions for you, however, financial decision making requires an executed Durable Power of Attorney. If, however, you want to make sure that specific items go to anyone other than your spouse and/or children, you must have a validly executed Last will and testament.
When you are considering the estate planning basics that all gay couples, and individuals, should have, please consider me a resource. For more information the basics for estate planning for gay couples, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Parental Rights battle in Michigan: When law doesn’t call you mom

Lesbian couple who used artificial insemination to have kids fight over parental rights now that they’ve split up.

For the last eight years, Jennifer Zunk’s life has been filled with motherly duties.

Changing diapers. Pediatrician visits. Making lunches. Doing laundry.

The kids call her mom. But the law doesn’t.

In a thorny custody case involving a lesbian couple who used artificial insemination to have a family, Zunk is in the fight of her life to protect her parental rights with two children she has raised since birth. She and her partner of 15 years broke up last year, and her ex-partner is now trying to terminate Zunk’s guardianship of their 8-year-old daughter and 6-year-old family law

But Zunk is fighting back as she faces what could best be described as a medical and legal conundrum — a difficult situation in which the law and technology are out of step. Technology allowed the two women — one a doctor; the other a teacher — to have and raise children together. But the law doesn’t recognize them both as parents.

That’s because of another legal snafu: The women broke up before same-sex marriage was legalized in the U.S., so Zunk couldn’t adopt the children because Michigan didn’t allow it. As it stands, the law only recognizes one parent: Her ex-partner — 47-year-old urologist Carin Hopps of Monroe, who delivered both children after being impregnated using in vitro fertilization. She is the biological parent of the daughter, who was conceived using a sperm donor. But she’s not biologically related to the son, who was conceived using a donor egg and a donor sperm.

Both women have been in the children’s lives since birth. Both entered into agreements to use egg donors. Both have paid for their upbringing. And the kids, who have hyphenated last names for each parent, call them both mom.

Welcome to America’s latest custody battle — a new and even more complicated fight over parental rights involving same-sex couples who used artificial reproductive technology to have babies and raise them together, but then break up with one parent then claiming “they’re mine.” Family law experts say the law isn’t exactly clear on how to handle this scenario, which has left parents like Zunk wondering: Will I lose my children?

“It’s the wild, wild West out here,” said Zunk’s attorney, Dana Nessel, who believes Michigan has outdated custody laws that are costing same-sex spouses their parental rights. “It’s not a disaster waiting to happen — there are disasters which occur on a regular basis, needlessly. Other states are literally light-years ahead of Michigan in this regard.”

Detroit Free Press, by Tressa Baldas, March 20, 2016

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New Jersey Court Awards Three Parent Custody to Family

In a first-impression ruling breaking new ground for New Jersey, Superior Court Judge Stephanie M. Wauters created three parent custody in her ruling in D.G. & S.H. v. K.S., 2016 WL 482622, 2015 N.J. Super. LEXIS 218 (N.J. Super. Ct., Ocean County, Aug. 24, 2015, approved for publication, Feb. 5, 2016), stating that a child’s birth parents, a gay man and a straight woman who conceived the child through assisted reproductive technology, should share joint legal custody together with the father’s same-sex spouse, who was found by the court to be a psychological parent of the child.

In the same ruling, Judge Wauters held that the mother could not relocate with the child to the west coast in order to live with her boyfriend, as the child would be adversely affected by the impact of such a move on her relationship with her fathers. However, Wauters ruled, while treating the biological father’s husband as a joint residential custodian parent, she could not declare him a legal parent of the child, since New Jersey’s law on parentage adheres to the traditional paths to that status of genetic contribution, gestation or adoption, and none of those methods of attaining parental status were presented in this case.

lgbt family law

The child, identified in the opinion as O.S.H., was born in 2009. D.G. is her biological father, and K.S. is the biological mother. S.H. is D.G.’s husband. The much-simplified story of the case is that D.G., S.H. and K.S. began in the fall of 2006 to discuss the possibility of conceiving a child together and raising the child with a tri-partite parenting arrangement. They decided to use D.G.’s sperm because he and K.S. had been long-time friends. They decided not to use a doctor’s assistance, instead following directions in a book on the “Baster Method,” by which they accomplished insemination at home, although K.S.’s first pregnancy ended in a miscarriage. After O.S.H. was born, D.G, S.H. and K.S. shared parenting responsibilities. The child mainly lived with her mother with frequent visitation with the fathers. D.G. operated a business (with flexible hours) at the Jersey Shore, and S.H. was employed as a New York City high school teacher. K.S. worked in a New Jersey restaurant owned by her parents. The men shared an apartment in Manhattan as their primary residence. The parents spent most of the summer after O.S.H. was born in a small house in Point Pleasant Beach owned by K.S., and at the end of the summer the men decided to rent their own home in Point Pleasant Beach for ease in shared parenting of the child. Parenting time fluctuated depending on the work commitments of the various parents. K.S. owned a home in Costa Rica where she would spend part of the winters with the child, and where the men occasionally visited. After Superstorm Sandy in October 2012 damaged the New Jersey coastal homes, the child spent more time with her fathers in New York City.

By Art Leonard, March 7, 2016 –

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