Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Seattle University Law School professor Julie Shapiro had a interesting post this past weekend on why lesbians should think twice before using a known sperm donor.

Professor Shapiro points out what's unique about a California where a lesbian couple split up five months after one woman gave birth to twins. Now they fight for custody.

Smith [the non-birth mother] is not simply opposed by Quale [her former partner, the birth-mother] but also by Wallace [the sperm donor], and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.

It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household. 

I agree. While Smith, the non-birth mother, might have a legitimate claim to keeping parental rights, I doubt the court will do anything other than award full parental rights to the birth mom and dad. Especially since the the lesbian couple split up just five months after the twins were born.

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A lesbian mother that took care of a child was denied parental rights by an Ohio court, but a sperm donor that had almost no contact was given them. Here's what happened:

• Two women, partners, want a child.
• Male friend donates sperm. Signs contract giving up rights to child.
• Woman gives birth to baby girl.
• Couple splits up two years later.
• Birth mother moves out with child.
• Non-birth mother sues for custody rights. Denied.

In the court's opinion [PDF], the judge recognizes that that the non-birth mother acted as a parent while the couple was together, including the facts that the non-birth mother's name was on the birth certificate and that she had been able to make health and support decisions for the child.

Julie Shaprio, a professor at Seattle University Law, pointed out what happened to the sperm donor:

By contrast, the court found that [the sperm donor] was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life.   (This finding wasn’t appealed, so it isn’t discussed in the opinion.  It’s not clear to me why his written agreement is without force.)

So could this happen anywhere? No. I've talked before about how different states have different laws about the rights of non-birth mothers that separate from a relationship with the birth mother.  It's possible in this case that the non-birth mother wasn't given parental rights because, after finding that the sperm donor was a parent, the court didn't want to assign a third parent to the child.

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Shocker: not all the news in gay couples law this week is about the Perry trial.

A lesbian couple in Canada who used a friend's sperm to conceive a child is now taking their friend to court to prevent him from seeing their child. Their original arrangement was that their friend was not to have any parental rights, but after the child was born he nevertheless tried to fulfill the role of father.

The dispute raises numerous issues, including whether a child can have more than two legal parents, whether a man has parental rights to children conceived from his sperm, and whether you can contract away legal obligations to children.

In the U.S., each state makes its own laws about these issues. Usually the laws of the state where the sperm donation took place will apply.

Most states follow the Uniform Parentage Act, which says that men have no rights to children conceived from their sperm. But not all. Just last month, a Pennsylvania Superior Court ordered a sperm donor to pay child support, even though two others already paying. That meant three adults were legally obligated to support one child.

Will sperm donors get more rights in the future? Probably not--it's pretty well settled in most states that sperm donors won't have legal rights to their children. But Jacob Appel, a bioethicist and contributor to many academic publications, says that sperm donors will continue to seek parental rights through the courts, such as in this Canada case. In exchange, he says states should make laws that more clearly prevent sperm donors from claiming parental rights:

A generation of progressives -- women's rights advocates, gay rights advocates, supporters of artificial reproductive technologies -- have fought to transform the definition of "family" from one based solely upon molecular biology to one based upon love and mutual respect. In order to protect this progress, legislation is needed -- either at the state or national level -- to guarantee the rights of established families over the efforts of interloping sperm donors.

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A Texas state appeals court this month recognized the parental status of the non-biological mother in a lesbian relationship. The ruling came reverses a previous one by the same court that said the non-biological mom had no parental rights because she was not married to the biological mother.

Before the ruling, the non-biological mother, who had split from her partner, wasn't allowed to petition for custody or visitation rights to her ex-partner's child. Now she'll be able to.

Nancy Polikoff, a law professor at American University Washington, explained the court's reasoning:

The court ruled that K.V. [the non-biological mother] was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition [for custody and visitation rights]. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions.

Michelle O'Neil, the attorney for the non-biological parent, talked about the case earlier this month in the Dallas Voice. Michelle writes frequently about LGBT family law in Texas, so you should check out her blog if you're particularly interested in that state's issues.

The court's reversal comes just after a lesbian won the mayor's seat in Houston, giving Texas two recent steps forward in gay rights and legitimacy.

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Lesbian couples wishing to raise children can either (1) adopt a child or (2) have one of the couple give birth with donated sperm.

But there's risks with the second option. Depending on the state law in which the sperm donation occurs, the sperm donor may have legal rights to the child.

Julie Shapiro, a professor at Seattle University Law School, says there's two ways to prevent this:

In some states statutes provide that a donor is not a parent. (Washington happens to be one such state.) In such a state, the women can use a known donor, secure in the knowledge that he will not be a legal father.

Some states do not have a legal provision like Washington’s. Thus, a donor/provider might be a legal parent of the child by virtue of the genetic link between parent and child. In a state like this, the best way for the women to protect themselves from possible interference by the donor would be to use an anonymous donor. An unidentified and unidentifiable man could not threaten their family.

The risks are particularly great for lesbian couples because some state laws eliminating parental rights of sperm donors only apply if the woman receiving the sperm is married. Corey Whelan, contributor to the American Fertility Association Blog, explains:

In some cases, state law will mandate that a donor who provides his sperm directly to the physician performing the insemination cannot be the legal father, but if the sperm is provided to the potential mom directly that is not the case. If you are single or a lesbian it may be harder to protect yourself from the possibility of a known donor suing you in order to establish parental rights of paternity. In addition, current existing law may be contested by your donor later on if he has an established on going relationship with your child.

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Rosie O'Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more. Rosie and Kelli live in New York, but married in California.

Their split shows many of the issues that come up during a same sex divorce.

Getting Divorced

Only a few states and countries allow gay marriage. So a lot of couples take a trip to get married out of state and then go back to where they live.

But if their marriage doesn't work out, they may have trouble getting divorced.

As an example, Emma Ruby-Sachs, an attorney with Ruby & Shiller, writes at the Huffington Post about what would happen for a hypotethical Montana couple that goes to Toronto to get married:

As a resident of Montana, you cannot get a divorce in Toronto. Toronto, like most states with the exception of Nevada and a few others, has a year-long residency requirement for a divorce. In Montana, your relationship was never legally any different from two roommates. And so, you must complete a divorce, with all its entanglements and difficulties, without the assistance of the law.

Because Rosie and Kelli live in New York, they'll be able to get divorced. Though New York doesn't allow gay marriages, they do recognize them from other states for the purpose of getting divorced.

Custody and Visitation Issues

Rosie and Kelli have three adopted children and one child born to Kelli through sperm donation. If Rosie and Kelli had lived in a state that disallowed second parent adoption, only Kelli would have legal rights to the child she gave birth to.

Without being the legal parent, Rosie's visitation rights to Kelli's child would also depend on what state they lived in. In Montana, for example, the highest court

that non-legal parents do have visitation and decision rights to a child from a same sex relationship.

Alimony

When married straight couples get divorced, one person often has to give the other person spousal support payments. That way the person with less income doesn't suffer an immediate drop in lifestyle. Along with spousal support, the person with more income would also have to give child support if the other person keeps custody of any children.

But if a same sex couple can't get divorced, then the person with lower income will lose these legal protections. It's possible, for example, that someone who left their job to take care of the house and family will not get any help from their ex-partner to help maintain his or her lifestyle.

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The Montana Supreme Court on Tuesday upheld the parental rights [PDF] of the non-biological parent of a separated lesbian couple.

What Happened

The couple had raised their child together for three years. Yet because Montana, like many states, doesn't let same sex couples adopt a child together, only one of two women legally adopted the child. After the couple separated, the woman who legally adopted the child said that letting her ex-partner have parental rights would interfere with her own constitutional right to parent her legal child.

The Court disagreed. Instead, the Court said that parental rights should be based on the existence of a parent-child relationship, which both women had.

Why It Matters

Because many states allow single, but not joint, gay adoption, the Montana decision could eventually impact the parental rights of non-legal parents in these other states. While none of these states has to follow what Montana does, their high courts may still be influenced by what the Montana Court said. However, the particular laws of each state will more affect those courts than decisions from other states.

Further, while in this case the child was adopted, the decision could also affect the rights of a non-biological parent in a same sex relationship with a biological one.

Even in Montana, however, the decision does not give the non-legal parent in a same sex relationship the same parental rights as the legal parent.

Instead of equal rights, the Montana decision said that the non-legal parent has only a "parental interest." Julie Shapiro, a professor at Seattle University Law School, points out that a "parental interest" is vague:

I’m not sure what that is or what it means. Is [the non-legal parent now] a legal parent? She has an equal voice in decision making, which suggests some equality with [the legal parent]. But it simply isn’t clear to me.

I expect further litigation in Montana or elsewhere about the limits of "parental interests" of non-legal parents.

Finally, be careful what you read. Some political blogs have mischaracterized the decision as treating non-legal parents equal to legal parents. Look at Queerty's post, for example, titled, "Montana Supreme Court's Amazing Adoption Decision: Gays Are Equal Under the Law." It's important not to treat every pro-gay decision as a proclamation of equality or as an advancement of gay rights, because the effects of these decisions are often much more limited.

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Earlier this year, a Tennessee trial court said that a state law called a paramour clause disallowed a divorced woman with children from having her same sex partner of 10+ years sleep at her house when the children were home as well.

The paramour clause won't let a divorced person have children from the prior marriage at their house when an unmarried partner is sleeping there. Since gay couples can't get married in Tennessee, the divorced woman would have never been allowed to have her same sex partner sleep in the same house as her children.

But just two weeks ago, the Tennessee Court of Appeals reversed the trial court [PDF], saying that parenting rights should ultimately be based on what's best for the children:

While a rule such as [the paramour clause] can be instructive, it is subordinate to Tennessee public policy mandating that trial judges make decisions regarding residential parenting of children upon the basis of the best interest of the child.

The court did not say that the paramour clause itself was bad for children, but that it should only be enforced when its best for children. So, it's still possible that a trial court will later say that the divorced woman's children are best off if the paramour clause stays in place.

Certainly, the ruling is good for gay couples in Tennessee. But it should also remind people that changing discriminatory laws against same sex couples is usually a slow, repetitive process: the Maryland Court of Appeals made the same decision in a similar case back in 1998.

It took eleven years for Tennessee, a more conservative state, to get to the same point. Because changes in gay rights usually happen at the state level, it will typically take this long (or longer) for progressive changes to make their way across the country.

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In 2007 the Utah Supreme Court said that a lesbian woman who was the biological mother of a child could stop her former same sex partner from having any relationship with the child. The couple had raised the child together for years, but because the former partner did not adopt the child, the former partner had no rights.

The case was about gay parents. But now that same case has influenced the rights of straight parents as well.

Yesterday, the Utah Court of Appeals denied a stepfather the right to visit his former wife's biological child. The Desert News reports why:

In its ruling Thursday, the court of appeals cited the Utah Supreme Court case of Jones v. Barlow, in which justices concluded that a legally fit parent has the authority to refuse visitation of a non-parent, regardless if a court finds it is in the child's best interest.

Why didn't the stepfather do a second parent adoption to secure his legal rights to the child? The article explains:

Adoption of the children by a stepparent is an option, but [University of Utah law professor Linda] Smith said often the cost of hiring an attorney and paying legal fees puts that protection out of reach for many low-income people.

While Professor Smith raises an important point, I bet the stepfather now regrets his decision to save money by not doing a second parent adoption. Especially in same sex families, couples should not skimp when it comes to protecting their family rights.

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Dan Schwartz, publisher of the Connecticut Employment Law Blog, recently started a weekly feature that focuses on the basics of employment laws in Connecticut. Shamelessly stealing this idea, once a week I'm going to talk about the basics of same sex estate planning and family law. 

I hope this feature will help gay couples just starting to learn about how to protect their families and also refresh attorneys helping gay couples locally.

First up: second parent adoption.

What is it?

A second parent adoption is when an unmarried parent adopts her partner's biological or adoptive child. This adoption gives the second parent full legal parental rights.

Where can it be done?

Not every state allows gay partners to do a second parent adoption. Some states allow it completely, while in other states it varies by county. Check out the second parent adoption laws in your state [PDF].

Why is it important?

Some people in a domestic partnership assume that taking care of their partner's child gives them legal rights to that child. This is a mistake. The only sure way to secure these legal rights is through a second parent adoption.

Family Fairness, a popular blog about same sex family rights, explains why second parent adoptions are vital:

Adopting your partner's child is an important step for gay and lesbian couples to take regardless of your state's position on marriage or civil unions. . . . One should never assume that their relationship will have the same legal footing as their heterosexual friends'.

Same sex couples should think about a second parent adoption for three reasons:

1. To protect the original parent.
2. To protect the rights of the adopting parent.
3. To protect the rights of the child.

Without a second parent adoption, the original parent can't rely on the second parent's legal duty to provide for their child. This is especially important if the partners break up--a second parent adoption can make the second parent help provide for the child even after the divorce or domestic partnership dissolution.

Of course, this works both ways. The second parent will also feel more secure in his legal right to care for the child. If the couple breaks up, the second parent will still be able to have a relationship with the child.

Finally, the child herself is guaranteed the legal support of two parents, regardless of what happens to the couple's relationship.

How does it work?

Second parent adoptions work in one of two ways:

• Normal adoption procedures
  
• Stepparent adoption procedures

Most states follow normal adoption procedures. This means the adopting parent will be treated as an unrelated person. Expect things like home visits by social workers, parental fitness tests, court appearances, and lots of paperwork.

A few states treat second parent adoptions as stepparent adoptions (where someone adopts their legal spouse's child). These are a lot quicker, cheaper, and easier to get done, because the adopting parent is treated as the original parent's spouse.

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A Florida custody battle highlights why gay couples must consistently prepare for legal challenges to their family rights. A lesbian couple in Florida retained custody of their child after the child’s sperm donor, a gay man with a partner, sued for custody rights. The male couple was helping raise the child, but the lesbian couple wanted to move out of state and take the child with them.

The lesbian couple thoroughly documented their role as primary caregivers. The sperm donor and his partner did not. The lesbian couple won.

Gay couples cannot conceive a child on their own. Instead, couples that want to raise a child must choose from a small variety of alternative options. One of these options involves finding a sperm donor (for lesbian couples) or a surrogate mother (for male couples). This option appeals to gay couples because it lets one person in the couple be the biological parent.

But with that appeal comes risk. The sperm donor or surrogate mother may later sue the gay couple for custody or visitation rights. When straight couples raise children through sperm donation or surrogacy, the non-biological parent adopts the child through second parent adoption. Yet many states, including Florida, do not allow second parent adoption for gay couples. As a result, gay couples in these states should use alternative methods to protect custody of their child from potential legal attack from the other biological parent.

In the Florida case, the couple that won the lawsuit thoroughly documented their role as primary caregivers. Without the right to second parent adoption, their preparation allowed them to keep custody of their child.

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