New Hampshire & New York Courts Recognize Our Families

In two recent decisions – one from New Hampshire and the other from New York state courts of appeal – the reality of our families has been recognized by the judicial system.  In these two significant decisions, the judges looked beyond the historic legal precedents to establish new rights for lesbian and gay male couples.  There is no question but that the United States Supreme Court’s decision striking down all remaining bans on same-sex couples from marrying was the impetus to these decisions, empowering the judges to grant greater legal recognition than had previously been possible.

In the New Hampshire case, known as Matter of Deborah Munson and Coralee Beal, 2016 N.H. LEXIS 180, 2016 WL 4411308, the issue was one that is coming up in many same-sex divorces these days:  what is the duration of the marital relationship, when the couple was together for many years prior to when they could legally marry?  This couple lived together for fifteen years before they were able to register as civil union partners.  Their registration automatically was converted to marriage in 2001, and then they broke up a year later.  The dispute in their divorce was whether their marriage was only four years in duration, or nineteen years.  In view of the assets that one of them had accumulated, the answer to this question made a huge difference in the amount of money that would go to the lesser-asset partner.

Fortunately, the law in New Hampshire allows judges hearing divorce cases to take into consideration all factors relevant to the issue, and authorizes them to make decisions based upon equitable considerations.  The Supreme Court ruled that the fifteen year period of pre-registration cohabitation must be taken into account in allocating the assets of the spouses.

As a growing number of long-term same-sex couples break up, the legal issue of the duration of their marriage is certain to arise more often.  Some state courts will take a hard line approach and disregard the years of pre-marital cohabitation.  We hope that more courts will follow the lead of the New Hampshire Supreme Court and treat the pre-registration or pre-marital period as they should — as an integrated part of the marital relationship.

The New York case (Matter of Brooke S.B. v. Elizabeth E.C.C., NY SlipOpp 05903) involves the issue of who is a parent, where one of the partners did not obtain an adoption of the child born to her long-time partner.  New York state has been one of the most draconian in this area, holding tight to a decision from 1991 that established that when the couple breaks up, the second parent could not seek custody or even visitation of the child she had co-raised for years in the absence of a legal adoption or parentage established by the marriage of the partners.  Finally, the appellate court of New York State did the right thing, and ruled that where there was a clear intention by the parties to adopt or give birth to a child, and then, where the child was raised as the child of both parents, the court must allow the second parent to seek custody or visitation of the child in the event of a break-up of the parents’ relationship.

Here’s the rule established by this important decision:  “where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.”

Note: this decision does not address the related question of what happens when one partner has a child (or adopts a child) before the couple meets, and then the non-legal partner shares in the raising of the child.  This decision only extends protection to partners who were involved in the conception or adoption of the child from the outset.

 

 

 

 

 

 

 

Ethical Guidelines for Surrogacy Unveiled at Men Having Babies Conference

The non-profit organization “Men Having Babies” recently held its annual gathering in San Francisco, and it was quite an impressive event.  There were more than 200 guys in the audience, learning about the “journey” to obtaining a child through surrogacy.  The event included presentations by a wide range of surrogacy agencies, and presented information on how to evaluate agencies, how to choose an egg donor, and how to make prudent decisions about the choice of surrogates.  You can learn more about the organization at http://www.menhavingbabies.org.

In response to the criticism from various factions regarding the perceived unethical surrogacy practices – mostly involving overseas agencies – the organization has issued ethical guidelines for intended parents.  It’s currently a “proposed framework” and its available for review on the Men Having Babies website.   It’s a remarkable document – based in part on a parallel effort undertaken by a group in Israel – and it should be read by anyone involved in this process, either as a parent or an agency.

The Framework opens with a helpful glossary of terms, and follows with a general Statement of Principles.  The principles support surrogacy as an option that should be available to intended parents, and stresses that prospective surrogates should have autonomy of decision-making regarding the pregnancy, birth, and transfer agreements.  The emphasis is on informed decision-making without duress or undue pressure.   The principles also cover the touchy issue of compensation, striking a balance between the right to compensation by all parties -including agencies – with a concern for the negative impact of excessive fees.

The second section presents baseline “protocols” for providers, with details about medical screening, clear contracts, legal representation, and minimal standards for accommodations, compensation, and interpersonal relationships.

Whatever one’s position is on the ethical, political and legal aspects of surrogacy for gay men, it’s helpful to review these guidelines.   It’s an open question where to draw the line on these issues — either as parents, professionals, or legislators – but having clarity about the most crucial issues certainly helps in formulating our responses.

 

 

 

Quite an Amazing Year for our Community

This has truly been a landmark year for our community.  The marriage issue is fundamentally resolved in our favor.  Yes, there are a few lingering problems in a few states of resistance, but these are truly minor problems.  The biggest challenge for couples is aligning their personal situation with the legal changes.  For California couples, the big question for registered domestic partners is whether to marry, to obtain the federal benefits.  For most couples the answer will be a resounding yes, given the long term benefits that come from federal recognition.  The two areas to be particularly attentive to are (1) whether federal tax rules will result in higher income taxes and (2) whether being married will disqualify one of the spouses from an inc0me-based federal benefit.

The other aspect of the “clean up” task is to review beneficiary statements, account designations, and property titles, to be sure that they are in sync with your marital status.  For most couples who are already registered no changes would be needed, but some of these technicalities are complicated to be sure to check with an estate or benefits lawyer if you have specific questions.

There are still a nasty cluster of problems around parentage.  The presumption of shared parentage that comes from marriage is not being fully recognized in every state, and in some situations a second-parent adoption is still advised.   If one of you is not clearly a legal parent, talk with an attorney who is familiar with the rules in this area.

The California legislature has taken some bold steps to address many of the legal concerns facing same-sex parents.  Last year they enacted a comprehensive surrogacy bill that allows a couple to obtain a court order deeming them as intended parents before the child is born, which clarifies any issues of the legal status of the surrogate.  This year a comprehensive bill was enacted into law which allows a sperm donor to agree in writing that he’s not a legal parent, even if no doctor was involved in the insemination.  Even in the absence of such a written agreement, a court can determine that the donor and the mother had an oral agreement about parentage before the child was conceived.

The new law (AB 960) also allows an unmarried partner to agree that his or her partner is a legal parent.    California Family Code Section 7613.5 provides forms and further information on how to apply these new provisions to your family.

Best wishes to all of you in 2016!

Even Mississippi Now Grants Gay Divorce

One of the questions many of us were asking after the United States Supreme Court issued its landmark marriage equality decision this past summer was whether there would also be nationwide access to divorce for same-sex couples.  To most of us it was obvious that if the marriages were all valid, divorce should be a logical outcome of that ruling.  But there were concerns – mostly in the realm of politics, but also when it comes to how the Supreme Court ruling is interpreted.  If it were seen as retroactive, as most constitutional rulings are, then there would be no question as to the validity of the prior marriages. But if the ruling was seen as only prospective, some narrow-minded judges might contend that the earlier marriages somehow shouldn’t be recognized, thus leading to a refusal to grant a divorce.

The good news this week is that even Mississippi, known as one of the most conservative states when it comes to gay rights, is allowing same-sex couples to dissolve their out-of-state marriages in their home state.  The court’s ruling (linked below) managed to avoid reaching any principled discussion of the issue, instead relying on the state’s attorney general’s prudent decision to drop any opposition to the divorce, post-Obergefell.  And it’s disturbing to read that a few of the court’s justices questioned whether the United States Supreme Court’s ruling was binding on them. But the outcome is what counts, and it’s a positive ruling when it comes to equal access to divorce for same-sex couples.

http://southfloridagaynews.com/National/mississippi-supreme-court-narrowly-grants-same-sex-divorce.html

A Terrific New Resource from Europe

There’s a terrific new project based in Europe that is addressing the issues of same-sex divorce in new and creative ways.  Aptly titled “Litigious Love,” it’s headed up by Maria-Federica Moscati, who now teaches law in England.  Most significantly, they are focusing on the positive benefits of mediation when it comes to resolving same-sex break-ups.  They held a conference on the topic recently, and they’ve issued a handbook for mediators who are handling gay and lesbian divorces.  The Handbook is available on line for free.  They also have compiled a book of thoughtful essays on the topic.   Take a look at the website and read the Handbook!

http://www.litigiouslove.eu/

Welcome News from the United States Supreme Court

Yesterday was an epic day — and truly unexpected in many ways.   The United States Supreme Court, by a 5-4 majority, ruled that the Due Process and Equal Protection clauses of the United States Constitution requires the invalidity of the remaining bans on same-sex marriage.  In a nutshell, the Justices states that access to marriage – with the partner of one’s own choice – is an essential element of the right to autonomy and liberty, guaranteed by the Constitution.  The Justices also ruled that marriage is an essential right in our society, and then went on to say that marriage is the best way for families to be formed – for the protection of the family and the children.

Here’s a link to the ruling:

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

The decision is landmark in many respects.  It looked beneath the explicit language of the Constitution to make this ruling, and didn’t just search for explicit words in the text of the document to justify its decision.  The ruling also made it clear that distinguishing between straight and gay couples in legislation really has no lawful basis – which may lead to other positive legal rulings in the future.   It also reinforced the notion that gay couples really aren’t trying to change society – in fact, they stressed that the couples wanting to get married were upholding the most traditional values of American society.

The dissents made several points which are not so easily dismissed.  For the most part the dissenting opinions focused on the absence of any express provision in the Constitution that talks about the freedom to marry or the right to autonomy when it comes to choice of marital partner.  Technically they are correct – but from a political and moral standpoint, they are wrong in my opinion.  It is true that the Court reached beyond technical provisions of the Constitution, but that is what the Court is supposed to do!   Their second main point was that this decision should have been left to the legislatures of each state, not “dictated” by the Court.  The majority opinion tackled that issue correctly, by saying that when it comes to guaranteeing fundamental rights, claimants should not have to wait for the political process.   This issue goes to the heart of what the role of the Supreme Court should be.  And by the way, the same justices who authored these dissents often support quite radical rulings, vetoing legislative actions, when it serves their political purposes.

The big question now is what’s next.  There will likely be some minor skirmishes around the issue of providing services to same-sex couples – -the “wedding cake” conflicts.  In some arenas there may be some carve-outs; most likely any religious-oriented service or activities will be able to exclude same-sex couples, such as religious marriage halls or officiants.  At the other end of the spectrum are public facilities, which certainly cannot discriminate against gay couples.  In between are the small scale private providers of commercial services, such as cake and flower and photographic services.  Under the law in most states these providers cannot discriminate against any customer, but many states are trying to enact laws that give them that option.

But what’s more important is how this ruling affects our own community.  Will this open the door for further extensions of liberation – helping transgender folks, bullied youth in small towns and rural areas, LGBT refugees from other countries seeking a safe haven here?  Or, will it lead to a complacency amongst the mainstream gay organizations and donors, feeling that the battles have all been won and the troops can take a well-deserved rest?  Time will tell.

The Latest Cases on Access to Divorce and the Bisexual Remarriage

There’s a wonderful monthly compilation of LGBT legal developments: Lesbian Gay Law Notes http://www.nyls.edu/impact-center-for-public-interest-law/publications/lesbiangay_law_notes/ – edited by Professor Arthur Leonard.  This month’s issue tells of two recent cases that are illustrative of how the legal issues in our community are evolving.

On the hot topic of being “wedlocked” (being unable to get divorced because your home state doesn’t recognize your out-of-state marriage), the Florida 2nd District Court of Appeal recently reversed a trial court’s refusal to grant a lesbian couple a divorce of their Massachusetts marriage (Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051).  Even though Florida now allows same-sex marriages, this case arose prior to the invalidation of Florida’s DOMA law, and the Court rightly felt compelled to rule on the underlying legal issues.  To their credit, the judges understood that “access to divorce” is a basic right, and the Florida courts could not deny these Florida residence of this fundamental right.   The judges focused on the practical harm caused to the parties by not being allowed to process their divorce in their home state, pointing out that a divorce proceeding doesn’t really involve recognition of a marriage, as an ongoing relationship, but merely allows the couple to formally end their marriage.

If the United States Supreme Court rules favorably on either of the two questions before it (whether states have to allow same-sex couples to marry, and whether they have to honor out-of-state same-sex marriages), this problem will go away.  The good news is that an increasing number of states are realizing that denying access to divorce courts makes no rational or legal sense.  The better news will be when the Supreme Court renders this issue moot.

Once it is moot, we will be able to enjoy a new film in production — called Wedlocked.  It’s described as a comedic farce, telling the story of a lesbian couple unable to get divorced due to the hostile legal environments of many states.  Check out the website of the film in production: http://www.wedlockedthemovie.com

On a more discouraging note, a Kentucky appeals court has ruled that the former lesbian partner of a bio-mom could not challenge the adoption of their child by the bio-mom’s new husband.  The case of WRL v. AH, 2015 Ky. App. LEXIS 52 demonstrates that there are indeed “Bs” in the LGBT community – with some rather nasty results.  Because the non-bio-mom had never obtained legal parentage over their child, and because Kentucky doesn’t honor intentional parentage of same-sex couples, the non-bio-mom had no legal rights.  Thus, when the bio-mom sought to allow her new husband adopt “her” child, the non-bio-mom had no legal basis of challenging the adoption.    We all applaud everyone’s right to exercise the bisexual option, but abandoning one’s former partner and co-parent in this way seems particularly cruel.

Next up – the Supreme Court’s decision on the marriage cases, expected to be issued the last week of June.

Emerging Trends in the New Year

Barriers continue to be broken down – and at a quickened pace this year. The most exciting news has come from Florida, where gay and lesbian couples were able to get married after a long and bitter legal struggle. Appeals are still pending, but for now, the clerks began issuing marriage licenses on January 5th, and as many as 1,000 couples tied the knot in the first week. The government officials in Florida have been especially resistant to opening their doors to same-sex couples, filing endless appeals and resisting court orders whenever possible. In the most twisted of turns, many clerks are now refusing to perform marriages for any couples, gay or straight, rather than having to officiate at any “deviant” marriages.

Florida has long been a state of contradictions in the marriage equality campaign. On the one hand there is liberal Miami and gay-friendly Fort Lauderdale, where thousands of gay couples live openly. On the other hand the government agencies and the courts have been stridently hostile to gay parents, gay couples, or any form of equality. But thanks to a dedicated group of lawyers and activists, the situation has finally turned around. Florida was State #36 in the marriage equality battle — and it’s now estimated that 70% of this county’s population live in states that allow same-sex couples to wed. Fort Lauderdale didn’t miss a beat – they have launched a same-sex marriage advertisement campaign with big ads in the New York Times –

We’re still waiting to see if – and when – the United States Supreme Court will take up the dispute. There now is a justification for the high court to take the matter up for adjudication, as there are conflicts between the rulings of the various federal appellate circuits. If the Court doesn’t accept a case within the next few weeks, we’ll have to wait until next year’s cycle of decisions to hear what they have to say on the subject.

The other growing trend is the emergence of Men Having Babies , a dedicated group of gay men who are helping men who hire surrogates and are pushing for a better organized and more community minded surrogacy industry. They recently convened a gathering and expo of resources in San Francisco, and the nearly-200 guys in the audience definitely were part of a movement – the energy in the room was exuberant, a bit overwhelmed with all the information at times, but dynamic in every respect. The topics ranged from medical trends, available options, financial challenges, and ethical issues involving the choice of surrogates, the role of the various players, and the perennial questions of international surrogacy. As more and more men raise kids, the social climate and public acceptance of our families will certainly continue to improve.

So where are the remaining arenas of conflict and trouble? There remain 15 states which are still in the midst of legal challenges, and it will probably take another two-three years for the laws to be worked out in those states. And many non-marital challenges remain, especially for youth, transgender men and women, and other “non-conventional” LGBT folks. But to my mind, the real focus of attention needs to shift to international concerns, to countries where gays and lesbians are still being prosecuted, harassed, and even imprisoned or killed. Finding solutions to these international problems is not easy — as it’s hard for outsiders to intervene, it’s not clear what the impacts of international pressure will be, and it’s open for debate as to whether gays should stay and fight for change in their country, or try to leave and seek refugee or asylum status elsewhere. The first important step is for those of us who have found liberation at home to pay attention to what is happening to our brothers and sisters in less fortunate places – with the hope that solutions will emerge over time.

Supreme Court Decides to Sit Out the Marriage Battle – At least for now!

In a move that some commentators had been increasingly predicted, the United States Supreme Court decided to not take any of the appeals from the same-sex marriage rulings. Federal appellate courts in a multiplicity of regions had upheld the broad sweep of trial court decisions overturning the marriage bans, and the Supreme Court has the option of hearing, or not hearing, further appeals. By declining to hear further appeals of these decisions, the appellate court decisions become final. That means, at a minimum, that lesbian and gay couples in Virginia, Indiana, Wisconsin, Oklahoma, Utah, North and South Carolina, West Virginia, Colorado, Kansas and Wyoming will soon be allowed to marry.

There are some legal issues that remain uncertain at this point. One question is how soon will couples be allowed to marry in these states? It may take a few days, or weeks, for the consequences of the decision to get transmitted to the proper authorities – so don’t schedule your wedding quite yet. The bigger unknown is what will happen in states that are included in the appellate court region in which there were positive decisions, but where there wasn’t a decision for that particular state. Some state authorities might just decide that it’s not worth fighting for another ruling, or some federal trial courts might just hurry up and issue decisions in those states – which the state authorities would simply not appeal. Until there is a Supreme Court decision it is always possible that a future court might uphold a ban, and that decision could be upheld on appeal – but this is very unlikely at this point.

Moreover, even if such an unlikely story unfolds, the resulting decision could be taken up by the Supreme Court – but it’s likely that they would not uphold a ban at that point. By then there would have been thousands of marriages in dozens of states, and it’s unlikely that the Supreme Court would go against the tide of history and invalidate so many marriages retroactively.

Most likely, today will be known as the day that same-sex marriage effectively became the law of the land in this country. And that’s a very good thing!

New Edition & New Developments

It’s been a busy summer for the legal world of same-sex marriage and divorce. An increasing number of federal courts are tossing out the bans on same-sex marriage, and the federal appellate courts are generally affirming these decisions. In the meantime, the marriages in these litigated states are on hold – with the inevitable problem of what happens to those who got married after the court decisions, and before the courts put the marriages on hold. Most observers believe that the United States Supreme Court will take up the issue of the marriage bans, perhaps quite soon. If that happens there will be a decision by next summer that will settle the issue of the constitutionality of same-sex marriage bans nationwide – and hopefully the outcome will be a positive one.

But the biggest problems still involve those who live in non-recognition states. For the most part, couples the marry in non-recognition states are receiving federal benefits, but not state benefits. And, should they break up prior to the resolution of the legal issues, it’s not clear whether they will have access to a judicial dissolution process. Along the way, these uncertainties make it hard for these couples to plan. It’s not clear whether a pre-marital agreement will be valid, and if so, whether it should be done in the state where they marry or the state in which they live.

One example of this problem is what happened in Florida recently.
http://www.miamiherald.com/2014/09/04/4328404/pam-bondi-doesnt-appeal-broward.html

Similar problems are arising in Texas – with the Texas Supreme Court poised to make a decision on this issue very soon.

Finally, we have new editions out of both of my books — Making It Legal, and the Legal Guide for Lesbian & Gay Couples. Check them out!

http://www.nolo.com/products/making-it-legal-lgm.html

http://www.nolo.com/products/a-legal-guide-for-lesbian-and-gay-couples-lg.html