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Denial of ‘Second Parent’ Adoption Puts Same-Sex Couples Parental Rights in Jeopardy

BY RICHARD VAUGHN and ARI EZRA WALDMAN

Earlier this month, in a ruling that rocked the worlds of same-sex couples and attorneys alike, a Brooklyn court denied the non-biological mother of a child born to a married lesbian couple the right to legally adopt her child.

VaughnThis seemingly arcane quadrant of family law matters because this process of adoption has, traditionally, been the only legal tool protecting gay families when they travel to marriage discrimination states. A biological parent has parental rights, obviously. But her non-married cohabitant, which is how marriage discrimination states look at same-sex spouses, is not considered a parent. She is considered a stranger even though she helps feed, raise, and care for the child.

But in a world of marriage equality, this form of adoption seems unnecessary. Brooklyn Surrogate’s Court Judge Margarita López Torres reasoned that New York recognizes the couple’s marriage and the names of both mothers appear on the child’s birth certificate. Thus, the judge wrote in her decision, the non-biological mother is already the legal parent of her child.

The “purpose and effect" of adoption is “…to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor…is it available to reaffirm, an already existing parent/child relationship.”

That makes sense. But, as we discuss below, the decision represents ideals over reality and endangers families run by same-sex couples.

CONTINUED, AFTER THE JUMP...

Lopez-torresIn her decision, Judge López Torres acknowledged the couple’s purpose in seeking the second-parent adoption—to establish the non-biological mom’s parental relationship to the child should the family travel to places where same-sex marriage is not recognized and same-sex couples are not recognized as parents. She was even “mindful of the uncertainty occasioned by the tectonic shifts occurring in the geography of our culture’s definition of ‘family.’”

In fact, the concern is more than theoretical to the mothers. According to a New York Times report, the non-biological mom, Amalia C., has family in Florida and Nicaragua, neither of which recognize same-sex marriage. Were birth mother Melissa C. to be incapacitated or killed while the family was visiting one of those locales, Amalia’s parentage of and right to make decisions for their child might very well be called into question or denied.

The couple’s concerns are among the reason that most family law and fertility attorneys advise same-sex couples to obtain a court order of parentage, even if both their names are listed on their child’s birth certificate, even if their marriage is legal and fully recognized in their home jurisdiction. It isn’t overkill; it is a necessary layer of protection in a discriminatory world.

NyJudge López Torres questioned whether a jurisdiction that refused to recognize a New York-sanctioned same-sex marriage would honor a second-parent adoption granted a same-sex partner. Her concern is misplaced. In the United States, even in jurisdictions where same-sex marriage or parentage orders are not recognized, adoptions are afforded full faith and credit under the law. Marriages are not. So, even marriage discrimination states are likely to recognize adoptions. And that is why it remains essential that same-sex parents be offered the “supplemental” protection of adoption.

A court order of adoption provides legal protections to both parents and child. A second-parent or step-parent adoption order serves to document the child’s parentage in the event a couple later separates and one partner seeks to be relieved of his or her obligation to provide financial support to the child.

Judge López Torres appears to have based her decision on a heart-felt conviction that married same-sex couples should be treated just like any other married couple, and on the long-standing legal presumption that a child born into a marriage is the legitimate child of both partners. It is a compelling and egalitarian argument, an affirmation of equal rights for LGBT people. Problem is, we’re just not there yet. There are too many places where LGBT people do not have full equality, and where same-sex relationships are denied any legitimacy; indeed, places where whipping out your same-sex marriage certificate might even land you in jail or put your life in danger.

In our increasingly mobile and globalized world, to expect a family to huddle in place in a jurisdiction that grants them legitimacy, never venturing to other states or countries, would be a true denial of equal rights. In seeking to affirm their equality, Judge López Torres’ decision instead denied the Brooklyn family the legal protection and security they deserve and that, until we gain full continuity in the law, in the U.S. and internationally, we must continue to advise same-sex parents to seek.

***

Follow me on Twitter: @ariezrawaldman

Richard Vaughn is a lawyer and Co-Founder of the International Fertility Law Group. Along with his husband, Tommy Woelfel, the proud father of twin boys (pictured, in top photo) through surrogacy and egg donation.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. if both of their names are on the birth certificates, both are legal parents, even if one did not give birth to the child. my male partner and i are both listed on our daughter's birth certificate and although our relationship is not recognized by the state of ohio, our legal co-parent roles are. not sure i clearly understand the plaintiff's intent here - how do you adopt when your name is already listed as co-parent on a birth certificate?

    Posted by: pc | Feb 3, 2014 8:13:41 PM


  2. The problem lies in jurisdictions that make a distinction between biological parents and custodial ones (or step parents) on the birth certificate. In most states, if the marriage breaks up, the step father is no longer responsible for his unrelated step children if his name is not on the bc.

    Posted by: freak | Feb 3, 2014 9:08:57 PM


  3. @Freak: "The problem lies in jurisdictions that make a distinction between biological parents and custodial ones (or step parents) on the birth certificate. In most states, if the marriage breaks up, the step father is no longer responsible for his unrelated step children if his name is not on the bc."

    OK. But in the case described, both partners' names are on the birth certificate.

    Posted by: Topol | Feb 3, 2014 9:40:01 PM


  4. This case is overkill. Both parents' names are on the birth certificate and under the law of the state of birth there was a parent-child relationship established for each parent. For another state to say that in crossing state lines, the child loses one parent would be an egregious ruling that violates several parts of the US Constitution (equal protection, due process, privileges and immunities, "right to travel" per "Shapiro v Thompson", etc etc). Although Justices Scalia and Thomas (and maybe even Alito) might find that the travel had stripped the child of one parent, it's inconceivable that at least 5 Supreme Court Justices would have that view -- and it would be highly improbable that Chief Justice Roberts, who has two adopted children, would agree that any child would be stripped of one parent as the result of crossing state lines. Perhaps the other state does not want to recognize the marriage, but that is different from refusing to recognize that the child has two separate parents.

    Let's see any state dare to take that step -- and see what the US Supreme Court does. It would create a firestorm.

    Posted by: MiddleoftheRoader | Feb 3, 2014 9:56:01 PM


  5. It's weird to me how this story is about two women, and yet the picture is of gay men. As a gay man myself, I do kind of wonder if gay men are a bit over represented...

    Posted by: Brian | Feb 3, 2014 10:24:03 PM


  6. @Middleoftheroader - You have far more faith in the recognition of legal documents than many of us do. While I understand that it's a completely different set of circumstances, try working your logic on Janice Langbehn, the widow of Lisa Pound, who had the complete and necessary legal documents needed to be treated decently and legally by the authorities in a state not her own, and yet...she and her children weren't.

    Until marriage equality is recognized evenly under all U.S. jurisdictions, these "supplemental" spit and paste legal remedies may be our only hope.

    Posted by: MrRoboto | Feb 3, 2014 10:34:26 PM


  7. It breaks my heart when babes like the dude in the purple polo decide to throw their lives away and become damaged goods by raising children.

    Posted by: FFS | Feb 3, 2014 11:22:40 PM


  8. @MRROBOTO - First, I agree with your comment that the ultimate solution is to recognize marriage equality in all US jurisdictions, and until then these "spit and paste remedies" make sense.

    Second, I agree that the Judge's ruling in the Langbehn - Pound case was unfair, lacked compassion, and may be even legally questionable. But the facts of that case seem to indicate the same result would have occurred if an opposite-sex couple was involved in that tragedy. That's because one has to read the rationale for the ruling -- the judge said that "medical personnel" have the "discretion" based on consideration of "medical needs" to refuse ANY family member's visitation request to see a patient who is in a trauma unit or receiving emergency treatment (in fact he said that visitation was permitted -- too late, of course -- when Ms. Pound was transferred to a non-trauma room). But in any event, it can be said that the judge went overboard to allow "doctor discretion" to trump "family rights" -- a questionable legal call. Also, the judge did not question that Ms. Pound was the legal mother of her young adopted children; instead, he said that NO "minor child" has the right to be informed of a parent's medical status -- only another adult relative may have such right. And in that regard, he said that once the Health Power of Attorney arrived by fax at the hospital (45 minutes after Ms. Pound was admitted), the hospital provided ongoing information to her partner and consulted her about health decisions -- until Ms. Pound passed away. The judge gave a further example of where a common-law spouse had no right to visit and obtain information about her husband (then a prisoner) while he was dying. THE POINT HERE IS that this is a terrible decision by the judge -- but it was more about the "power of the medical profession" and the "power of hospitals" and less about anti-gay conduct. I would not try at all to justify what the judge did -- it should not have happen to Ms. Pond's family and it should never happen to any family.

    Third, my main point in my earlier posting was that there is no way that the US Supreme Court is going to say that a child suddenly loses a parent-child relationship with either parent -- and that either parent loses a parent-child relationship -- when the birth certificate lists both parents as legal parents under the law where the certificate was issued and the children were born. Perhaps some trial courts and appellate courts might go there, but that kind of case would be a slam-dunk win if appealed to the US Supreme Court compared to the Windsor case (which was decided 5-4). There are many grounds (due process, equal protection, privileges and immunities, right to interstate travel, etc). And this is one way to attack and eliminate the remaining part of DOMA -- just waiting for some state to take away parental rights of a parent and/or of a child when the married couple crosses state lines.

    Let's hope for the day when all of this legal mumbo-jumbo gets relegated to the trash pile where it belongs. Sometimes major court decisions happen quickly, and sometimes step-by-step. This is one situation where, if the matter ends up in the Supreme Court before national marriage rights are decided, the child-parent relationship is going to be protected regardless of the parents' location.

    Posted by: MiddleoftheRoader | Feb 3, 2014 11:39:59 PM


  9. Adoption "is not utilized for, nor…is it available to reaffirm, an already existing ... relationship."

    OK. What about marriage? Explain to me all the marriages that happen country-to-country, and state-to-state, for already-married couples. That's just as unnecessary, yet it's also regular.

    Why is it just this particular adoption that can't proceed? It seems like obstruction for obstruction's sake.

    Why should families like this have to be put at risk, just so we can dare a state to harm them (which they will)?

    "married same-sex couples should be treated just like any other married couple"

    That necessarily includes how they are treated by other states. To the extent the home state can reduce discrimination in other jurisdictions, I think it is obligated to do so (and indeed, I'd go so far as to say the adoption process should be automatic).

    Posted by: Randy | Feb 3, 2014 11:49:49 PM


  10. From the comments here, it seems that there is a difference between recognizing same-sex marriage and recognizing parents who are co-signatories on a birth certificate.

    In other words, one is not needed for the other. It seems that the judge is saying that all states recognize the parents on birth certificates. This seems right to me.

    Does anyone know for sure before condemning one side or the other?

    BTW, the Langbehn/Pond case had to do with visitation rights at a hospital, not birth certificates.

    Posted by: Topol | Feb 4, 2014 1:17:52 AM


  11. A birth certificate is not a judicial decision. The Full Faith and Credit Clause of the U.S. Constitution does not require that every act by a state or its instrumentalities be recognized by any other state. In fact, the clause has been interpreted to give far more deference to judicial judgments. So, a birth certificate listing two fathers or mothers does not have as much value under the Constitution as does a judicial act of adoption.

    When we had our son via surrogate, we got a court order ordering the hospital to list both the non-biological and biological fathers on the birth certificate AND a judicial order that acted as the equivalent of an adoption under state law. That is about as strong as you can get right now. Hopefully that will change. But it's inadvisable to just rely on the birth certificate.

    Posted by: Theoden | Feb 4, 2014 3:50:43 AM


  12. Why are there two gay dads pictured when the story is about lesbian mothers?

    Posted by: Gigi | Feb 4, 2014 8:57:17 AM


  13. It may seem like overkill and is certainly a burden not required of hetero married couples, but same sex couples with children who have this concern should prepare a packet of family documents with copies of anything and everything that might be relevant should there be an emergency in an jurisdiction that isn't as friendly to LGBT people. I'm talking about copies of marriage certificates, birth certificates, passports, immunization records, copies of household bills with both names on them, family pictures, anything. If there are multiple copies of this information packet, it should be simple to throw one into the carryon bag when traveling and then be able to completely document your relationship with each other and with your child(ren) at a moment's notice if need be. It's sad that we need to do this, but it's certainly better than an alternative that involves being separated from your spouse or child for even a few minutes in an emergency.

    Posted by: Jere | Feb 4, 2014 9:42:42 AM


  14. It seems like the judge is legally correct. In a legal marriage, when a woman gives birth she is automatically and legally the parent and so is her legal spouse. It doesn't make any more sense for the second mother in this legal marriage to adopt her child than it would a husband in a hetero marriage. My question is, now that legal same sex marriages are recognized by the Federal Government, wouldn't federal law override a discriminatory state law used as a reason to remove a parent's legal status simply because the family has traveled there?

    Posted by: Boone68 | Feb 4, 2014 12:04:36 PM


  15. FFS: hilarious!

    The gay dads have been on Towleroad before and the trophy husband/GDILF has been in more than a few underwear ads.

    Posted by: kipp | Feb 4, 2014 12:09:22 PM


  16. I think we should be concerned about this ruling. How would it work with a male couple who father a child via surrogacy? One male's name may appear on the infant's birth certificate as the biological father but marriage laws to my understanding do not permit a non-biological parent to be on the marriage certificate. The only way the partner, the non-biological father, could be 100% assured of his parental rights would have to be through legal adoption. Maybe I missed something but birth certificates are a completely different matter under the law when recognizing the actual parentage of a child.

    Posted by: jamal49 | Feb 4, 2014 12:16:45 PM


  17. I'm confused here. If I were to theoretically marry a pregnant woman, I wouldn't presume that my name would be on the birth certificate when the child was born. I'd have to formally apply through adoption for that status. Right?? Correct me if I am wrong here.
    How does a non-biological parent get listed on a birth certificate whether in an opposite sex or same sex marriage? I wouldn't seem to hold much water if the biological second parent wanted to fight for parental rights. I'd think that adoption is the only way to ensure rights and stability for the family in either opposite sex or same sex marriages with a child that is only biologically related to one of the two spouses.

    Posted by: MIke | Feb 4, 2014 1:43:32 PM


  18. There are two dads in the photograph because one of the dads is the co-author of this post. And the kids are his and his partners. I am unaware if one of them is also an underwear model.

    Posted by: Charlie | Feb 4, 2014 8:12:11 PM


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