Why Adoption Is Absolutely Necessary for Same-Sex Couples (Yes, Even in Massachusetts!)

As tens of thousands of same-sex couples take advantage of various equal marriage laws and civil union statutes throughout the country, it is important to remember that the patchwork quilt of laws regarding same-sex families is largely unfinished.

So while there is much cause for celebration, we should remember that the federal government refuses to recognize any kind of same-sex relationship; that the nation's largest single employer (the military) will not tolerate homosexuals (much less recognize same-sex relationships); that same-sex couples are not treated equally in the application of immigration laws; and that throughout the country there are laws that ban adoption by homosexuals, that permit discrimination in employment and housing on the basis of sexual orientation, and prohibit any recognition of same-sex relationships. In response to the aforementioned laws and prohibitions, same-sex couples are forced to spend time and money on domestic partnership agreements, estate and health care planning to obtain even the most basic protections for family and loved ones. Failure to plan can have truly devastating and unintended consequences for same-sex couples and their families.

When it comes to child-rearing and parenting for same-sex couples, this national patchwork of rights, prohibitions, and outright discrimination can be catastrophic and downright terrifying. I advise my clients (and the various LGBT legal advocacy groups agree) that the only way to guarantee the recognition of their legal parent-child relationship is by petitioning the Court to grant a Co-Parent Adoption.

Your State-Sanctioned Same-Sex Marriage/Civil Union/Domestic Partnership Does Not Guarentee A Legally Enforceable Parent-Child Relationship. A recent New York case - Debra H. v. Janice R. - highlights this fact particularly well.

Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis (what we would call De Facto Parental Status in Massachusetts) to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.

However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years. The Court's reasoning is clear and unambiguous:

"Although the record indicates that petitioner served as a loving and caring parental figure during the first 2½ years of the child's life, she never legally adopted the child. ... This matter is governed by the Court of Appeals decision in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]), which provides that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70..."

The New York Court denied parental status to Debra even though it recognized that the child had been "born approximately one month after the parties entered into a civil union in the State of Vermont, and more than two months after they registered as domestic partners in New York City".

The Constitution Requires That States Give Full Faith And Credit To The Judgments Of Another State. In a recent Federal Court decision, the State of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy, and that it could refuse to issue an amended birth certificate.

Rejecting the state's argument, the District Court Judge Jay Zainey explained that the well-settled meaning of the federal constitution's "Full Faith and Credit Clause" requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. Importantly, the judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." On Summary Judgment, Judge Jay Zainey ordered the State Registrar to honor the valid New York adoption judgment and issue an amended birth certificate to the adoptive same-sex parents.

This case reminds us that although a state is constitutionally required to recognize the judgment of a foreign jurisdiction, it will not be equally compelled to recognize foreign statutory schemes or regulations (see: same-sex marriage or civil union) that violate its laws or public policy.

But Will My Spouse And Children Be Protected By Our Valid Same-Sex Massachusetts Marriage?

Yes! But only in Massachusetts.

In the case of heterosexual married couples, it has always been the case in Massachusetts that a child born during the marriage is legally presumed to be the biological child of both the husband and wife. With full legal recognition of same-sex marriage in 2004, married same-sex couples should receive the same presumption of parenthood here Massachusetts, although I am not aware of any cases that have tested this right.

Same-sex couples should not rely on the Massachusetts presumption of parenthood alone to establish a legal parent-child relationship between a non-biological parent and child. Put another way, if your only legal connection to a child is through your same-sex marriage, your parent-child relationship is only as valid as your same-sex marriage. Because only four states currently recognize same-sex marriage, the chances of ending up in a state that treats you as a legal stranger to your same-sex spouse and your same-sex spouse's child is great.

Regardless of whether your same-sex marriage is valid at the time of the birth of your children, or whether you wish to parent your same-sex partner's biological children, only a final and binding Adoption Decree will guarantee the creation of a universally recognized and legally valid parent-child relationship.

Given the uncertainty caused by a patchwork of new and untested state laws recognizing and banning same-sex relationships, same-sex couples should consult with an attorney to ensure that all of their exceptions and assumptions surrounding their rights are correct, especially if there is a child involved. Adoption is the only guaranteed method of creating a legal parent-child that will be recognized by other states. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a stressful or tremulous time can make an unpleasant situation terrifying and even dangerous.

DOJ Ruling Undercuts DOMA: Children of State-Recognized Same-Sex Relationships May Collect Federal Benefits

The federal Defense of Marriage Act, passed in 1996, prohibits the federal government from extending (or forcing states to extend) rights or benefits to same-sex couples and their children, even if those relationships enjoy marriage, domestic partner, or civil union status under state law.

However, as states across the country begin to affirm the rights of same-sex couples and their children - including access to the institutions of marriage, divorce, spousal benefits, and child support and custody - the justifications and practical workability of DOMA is being directly challenged. Notably, a recent ruling issued by the US Department of Justice (DOJ) instructed the Social Security Administration (SSA) that it must extend federal benefits to the non-biological child of a woman in a Vermont civil union.

In this ruling, the DOJ considered the case of Monique and Karen, who had obtained a civil union in Vermont in 2002. In 2003, Monique gave birth to a little boy named Elijah. Karen did not formally adopt Elijah because, under Vermont's civil union statutory scheme, he was considered a child of both Monique and Karen. The same year Karen, Elijah's non-biological parent, began receiving social security disability benefits. Then and now, DOMA prohibited general recognition of a legal parent-child relationship between Elijah and Karen.

Under existing SSA regulation, children of adults who receive benefits have traditionally been entitled to benefits in their own right. Previous SSA regulations define a "natural child" based on "the law on inheritance rights that the State courts would use to decide whether [the individual] could inherit a child's share of the insured's personal property if the insured were to die without a will". 20 CFR §404.355(b)(1)(2007). In other words, if an individual would be considered the child of a benefits recipient under his own state's inheritance laws, the individual would be considered an eligible child for federal social security benefits purposes.

In this case, the SSA was in a quandry. Although Elijah was a "natural child" of Karen under Vermont law, the parent-child relationship was derived from a same-sex civil union statute that the federal government was expressly prohibited from recognizing under DOMA. The SSA was unclear whether it could distribute federal benefits to Elijah, who was only related to Karen by way of her same-sex civil union to Monique. The DOJ decision deftly circumvented DOMA, and directed the SSA to distribute federal benefits to Elijah since Elijah was considered Karen's "natural child" under Vermont's intestacy statutes.

The Elijah ruling is signifigant because the SSA was instructed to treat Elijah as Karen's son even though he was related to Karen under Vermont's intestacy laws only by way of Karen's same-sex civil union to Monique.

The full impact of the DOJ ruling has not been adequately reported or commented on. After all, it is only a small crack in the expansive and largely untested Defense of Marriage Act, which denies thousands of federal rights and benefits to same-sex families and children. However, the ruling seems to indicate that federal benefits that are granted according to state definitions of family and parentage (including states that recognize same-sex marriages and unions) will not be denied despite the fact that DOMA specifically prohibits federal recognition of those same-sex relationships.

It is important to note that the Elijah decision will not provide benefits for non-biological children of same-sex parents in states that refuse to recognize the marriage or civil union of the parents. For example, even Elijah's benefits would terminate if Karen and Monique were to move their family to a state that did not recognized their union. Same-sex parents of children can avoid this result by speaking with an attorney and making sure that both spouses have legally adopted their children and have created a flexible estate plan to fill the gaps created by DOMA and similar discriminatory state laws.

The full text of the opinion can be found on-line at http://www.usdoj.gov/olc/2007/saadomaopinion10-16-07final.pdf.

Talking to Children About LGBTQ Familes *A Free Online Resource*

Even before children are old enough to understand verbal language, they are learning about and observing human relationships, identity, and family structures. For all parents, it can be challenging to communicate difficult concepts such as marriage, reproduction, adoption, and human relationships.

For LGBTQ parents, we may find it especially difficult to talk about and explain our families and relationships to children in age-appropriate ways. Consider the following: "Where do I come from?" - "Why am I the only brown one in our family?" - "Some kids asked me if my mom is a lesbian. I don't know what to do." - "Why does Maria have a mom and a dad?" - "Everyone uses 'gay' as an insult and the teachers don't say anything."

The Boston based Family Equality Counsel has produced a free six-page publication entitled Talking to Children About our Families to help LGBTQ parents talk about and explain their families to children of various ages. Download it here. The publication contains age-appropriate language and examples of the type of questions you might expect from your own children or other children in your life.

As the publication explains:

"The presumption of a mother and father creating a child (which may be valid for some of our children) is one with which our children will be saturated through their daily interactions with children’s books, the media, school personnel, peer discussions and exposure to various family models. It is your job as a parent, whether you identify as part of the LGBTQ community or not, to teach your children about different family constellations."


and goes on to point out that:

"Very young children are not naturally inclined to make judgments about family structure. They see family configurations as a matter of fact. As children become a part of the larger peer culture, they will be exposed to other peoples' judgments of their families. The earlier children are given appropriate information about their lives and their families, the easier it will be for them to understand and appreciate them."