Friday, August 28, 2009

New from the Alternatives to Marriage Project

It's always a good day to check out what's happening with the Alternatives to Marriage Project. They recently expanded their on-line resources with more facts, experts, reports, etc to counter the dominance of the "marriage movement" position that the decline of life long heterosexual marriage is responsible for all our social problems. They are also in the forefront of a growing movement to stop using federal anti-poverty funds on "marriage promotion."

Check them out.

Sunday, August 23, 2009

Following up on the Allertons...and Bayard Rustin

Earlier this month I posted about same-sex couples who solidify a family relationship by having the older partner adopt the younger one. Among other things, I described my experience touring the Allerton Gardens in Kauai, named for Robert Allerton and his "adopted son" John Gregg Allerton, who lived there for many years.

When I wrote that post I had yet to read Lucinda Flesson's Waking Up In Eden. My good friends, who know my passion for Kauai, gave me the book because it's the memoir of a woman who leaves east coast professional life to live in Kauai and work at the Allerton Gardens.

Well it turns out that the author, Lucinda Fleeson, was also fascinated by the life of the Allertons. Several employees of the gardens knew the couple (Robert died in 1964; John in 1986), and Fleeson asked many questions about them. She also dug around in Illinois, where Robert's father made the family fortune, and learned more there. She hypothesizes that, after splitting their time between Illinois and Kauai, the couple settled in Kauai full time to escape increasing surveillance and criminalization of homosexuality.

I learned more about Robert and John Allerton from this book than from any other source I've found since I became interested in the couple more than 15 years ago. The book is a great read for anyone who loves Kauai, but it also earns a place among books about the social and cultural history of gay people in America.

And many thanks to John D'Emilio, whose biography of civil rights leader Bayard Rustin was a finalist for the 2003 National Book Award for non-fiction. John recently reminded me that Bayard Rustin adopted his partner, Walter Naegle, to safeguard Walter's ability to inherit from possible challenge by his family members.

Tuesday, August 18, 2009

North Carolina upholds second-parent adoption!

The South is the region with the worst laws in the country for gay and lesbian parents. Well today add North Carolina to the list of states that approve second-parent adoption.

Today's decision from the North Carolina Court of Appeals came in the case of Boseman v. Jarrell. Pretty straightforward facts: Julia Boseman and Melissa Jarrell had been together four years when, in 2002, Melissa gave birth to a child, conceived through donor insemination and planned for by both of them. The child called Melissa "Mommy" and Julia "Mom." The couple filed for a second-parent adoption, which was granted in 2005. As is common given state adoption statutes, the couple asked the court to waive the statutory provision that an adoption terminates the biological mother's parental rights. The court ruled that it had the power to do that, and the adoption decree specifically reads that it does not terminate Melissa's parental rights.

So far so good.

But the next year the couple split up, Melissa limited Julia's time with the child, and, in 2007, Julia filed an action for joint custody. Melissa then tried to get the court (in a different county from the court that granted the adoption) to rule that the adoption decree was void. The opinion released today holds that the adoption decree was not void. If it was an error to grant an adoption without severing Melissa's parental rights, that had to be raised on an appeal from the adoption decree; it could not be raised in a subsequent proceeding.

There's lots of good language in the opinion about why the adoption was a good thing, but the court's failure to rule definitively that a court can waive the provision terminating a biological parent's rights does leave the door open for some trial court judge in the state to rule that the law does not permit such waiver. What is clear, however, is that if a trial judge DOES grant a second-parent adoption, that adoption is valid and cannot later be challenged by anyone.

The court also makes clear that it would have ruled the same way had the parties been an unmarried different-sex couple. "While [the adoption code] does not specifically address same-sex adoptions," the court wrote, "these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s 'needs, interests, and rights.'"

The North Carolina Association of Women Attorneys, the National Association of Social Workers, the North Carolina Chapter of the National Association of Social Workers, and the North Carolina Foster and Adoptive Parents Association filed a friend of the court brief in support of upholding the adoption.

Monday, August 17, 2009

The Obama administration thinks we make good parents!

The Obama administration is defending DOMA in the litigation challenging it filed in California. No surprise there.

Today they filed a brief in the case, and there is some good news in it. I'm going to let it speak for itself.

"The government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because "the sterile and the elderly are allowed to marry."

For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality."

The bases that the Justice Department repudiates here are the ones state courts have relied on to rule against plaintiffs seeking the right to marry under state constitutional law.

Saturday, August 15, 2009

More thoughts on the Delaware de facto parent law -- a child can have three parents

I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four.

Our recent DC statute does allow for the possibility that by written agreement a woman who consents to her partner's insemination with the intent to parent is a parent and the semen donor who agrees with the mothers to be a parent is also a parent, so a child could have three parents under that scenario. We don't have a mechanism for creating a birth certificate with three parents, so for sure a court will have to be involved. I'll be interested to see how soon that happens.

The Delaware statute appears to require Family Court action to create (or at least officially recognize) the parentage of a de facto parent. Once a de facto parent obtains a parentage order, that person is a parent. So then, assuming this is a lesbian couple, the couple can participate in the creation of a third parent for the child, and this has nothing to do with semen donors or biology...just with meeting the criteria for being a de facto parent.

I think if my friends in Australia actually lived in Delaware they could get parentage orders creating four parents for their child at this point. They certainly all meet the criteria.

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

It's a matter of time. Delaware has a small population, so it could be awhile. I'll be trying to pay attention to how its law develops. Maybe we're looking at a new model for the rest of the country.

Thursday, August 13, 2009

Delaware legislature gets it right on children with two moms

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

The law went into effect July 6, but the law is retroactive, and any cases decided against a legally unrecognized mom under previous law can be reopened. The statute says both those things explicitly.

There is so much that is huge about this statute. Legal parentage has nothing to do with recognizing the couple's relationship to each other, so parentage created this way is not vulnerable to a DOMA challenge. It is full parental status, so that means everything -- not just the custody/visitation/support rights and responsibilites that some courts have extended to a nonbio (or non-adoptive) mom. For example, it means entitlement to government benefits as the child of both parents and the right to inherit from and through both parents. Also, most states have not given EQUAL custody rights to a nonbio mom, and this statute makes clear they are equal.

There are a couple of caveats. The statute probably does not recognize both parents until after the child was born, even if the couple consented to insemination together and fully planned for the child together. Also, it is not clear to me that the second mom can go on the birth certificate, and without that some court proceeding might be necessary, which is a drag. Still, what a great improvement on current law.

Last year, the highest court in Maryland got this issue all wrong. I hope Delaware's legislative response inspires the next session of the Maryland legislature to follow suit.

Wednesday, August 12, 2009

Important elder law publication...with a caveat

I was so excited to see the National Center for Lesbian Rights' new publication, Planning with Purpose: Legal Basics for LGBT Elders, available on line here. Basically, I love any publication that explains the law to people in a clear and useful way.

So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.

The publication importantly notes the rules that protect a spouse's right to stay in a home if one spouse goes into a nursing home on Medicaid. There is also a set-aside of a certain amount of assets. But the publication completely ignores the fact that if one partner owns most of the assets and it is the other partner who needs nursing home care, then being UNMARRIED is the best economic protection. That's because an unmarried person's property is his/her own; none of it needs to go towards the care of the person in the nursing home. If the couple were married, all of the assets of both partners, with limited exceptions, would have to go towards the care of the partner in the nursing home. Furthermore, if the couple owns a house together, elder law experts say that the unmarried co-owner will be allowed to remain in the home.

Now when an unmarried heterosexual couple sees an elder law specialist to learn the consequences of getting married, the lawyer will relate these rules. The couple may decide not to marry because of the different treatment of married and unmarried couples. The NCLR publication just does not present the information a same-sex couple would need to make a similar decision if DOMA repeal meant that a same-sex couple's marriage WOULD be recognized under federal law.

The publication also discusses the disadvantages same-sex couples face under social security law, but it again fails to put the status of unmarried couples in the context of who gets what social security benefits. This is a criticm I leveled at GLAD's lawsuit challenging DOMA. Read about that here.

So here is my question. Why present our inability to marry and obtain federal recognition of those marriages as always a bad thing when it is not? This is a huge oversight in a publication about elders. After all, heterosexual elders have been choosing to live together without marrying since before it was even socially acceptable to do so. (You know...they were companions.)

To me this is the triumph of a pro-marriage ideology over the goal that any LGBT publication should have --- accurate and complete information.

Sunday, August 9, 2009

Lesbian couples as joint legal parents in Europe

I'm still excited about our new law in DC that makes both lesbian partners the parents of the child that one of them gives birth to if her partner consented to the insemination with the intent to parent or if the couple is married or registered domestic partners. If you missed the details, check this post.

I've gotten an update from Dutch law professor Kees Waaldijk on the status of lesbian couples as parents in Europe. Kees publishes an amazing amount of scholarship and analysis about LGBT law in Europe. Lucky for us, he publishes a lot of it in English, or translates it into English on his website.

Recently, Kees compiled the information about when lesbian couples can be recognized as the legal parents of the child that one of them gives birth to -- without having to go through adoption. The first thing to say about these laws is that they apply only when conception occurs through assisted reproduction. That is not as much of a problem as the fact that all require that insemination with donor semen take place in a medical facility. So, lesbian couples in Iceland, Norway, and the United Kingdom (not in Northern Ireland) can both be recognized as legal parents, but not if they perform the insemination at home. Legal status for both women is available in Spain and Sweden as well (also only when the insemination is medically assisted), but in those countries the couple must be married.

So on the one hand it looks like the US is behind Europe again (think registered domestic partnership in Denmark in 1989 -- 11 years before Vermont authorized civil unions). On the other hand, assisted conception laws written beginning in the 1970's in the US were often limited to situations in which doctors performed the inseminations. Our 21st century model laws all eliminate that requirement. And our models laws do not require the couple to be married. It's true that the 2002 Uniform Parentage Act is limited to a man and a woman who have a child using assisted conception, but they do not have to be married. The Model Act from the American Bar Association is gender-neutral and marital status-neutral, and it serves as a basis for our statute in DC.

I'm glad to see Europe moving forward on parentage rights. For a long time European countries recognized partners but prohibited second parent adoption. Now second parent adoption of a partner's biological child is available in Denmark, Finland, Germany, Iceland, Netherlands, Norway, Spain, Sweden, and the United Kingdom. But for laws creating parentage without the need for adoption, I'll take DC's over all of these. Australia and some Canadian provinces also make the partner of a woman who gives birth after donor insemination the parent of the child without needing to adopt -- and none of those places require either that the couple be married or in a registered/formalized relationship or that they use medical services to conceive.

The European countries seem to be copying each other. It's progress. But it's not the gold standard.

Sunday, August 2, 2009

Ever thought of adopting your partner?

Not likely. But in times past -- sometimes not so distant -- that was the mechanism some couples chose to establish a legally recognized relationship. A few appellate court opinions on the subject have made it into family law textbooks. New York ruled famously in the 1980's that such an adoption violated the state's public policy. But many states allow it. Interestingly, two different Florida judges told me in the 1990's that they had granted such adoptions.

Gay rights lawyers have pretty uniformly discouraged such proceedings. You can't divorce your adopted child/parent. You probably have to present yourselves to the court in a manner that is dishonest. But they still happen.

The most recent example to come to public attention is the adoption of Patricia Spado by her then partner Olive Watson. The case has gotten lots of press coverage because Spado stands to inherit oodles of money pursuant to a trust established by Thomas Watson Jr, the son of the founder of IBM. The trustees have been trying to undo the adoption, and they just lost in the Maine Supreme Court. If you don't want to read the court's whole opinion here, you can read Professor Art Leonard's fine summary. Basically, Maine law allowed such adoptions at the time (not anymore), and the court found that the parties satisfied the jurisdictional requirements under Maine adoption law even though they only spent summers there.

Inheritance was actually a major reason for adult back to antiquity. For gay couples, an adoption could prevent a deceased partner's family from challenging a will leaving property to the surviving partner. After all, if the will was thrown out the property would go to a surviving child before going to siblings or more distant relatives.

The gay partner adoption I think about most often is that of Robert Allerton's adoption of John Gregg (whose name became John Gregg Allerton). I came across their story by accident. I was touring the Allerton gardens on Kauai in the early 1990's. Early on the tour guide referred to "Robert Allerton and his adopted son..." Now I am an adoptive mother. I have friends who are adoptive parents and friends who are adopted. It struck me as unusual to have these two individuals described this way; normally, a person would say, "Robert Allerton and his son..." So my ears perked up.

As the tour went on, I learned about how the couple travelled the world collecting art for the garden; how they created "rooms" and had costume balls. Okay, so it was clear to me they were a gay couple. They met in the 1930's and were together until Robert's death in 1964. Robert, an heir to one of Chicago's greatest fortunes, adopted John in Illinois in 1951. I returned home and regaled my friends with stories of finding gay family law history so unexpectedly. (We are everywhere, right?)

On that tour I didn't ask any direct questions. But the gardens are stunning and Kauai is my favorite place in the world, and I returned there a couple of years later. In response to my questions, the guide told me then that it was commonly assumed they were a couple and that everyone in Kauai society attended the parties they gave in their gardens. "We don't care," she said. "We are just grateful they left this property for us." The official history on the Allerton Gardens website speaks of the couple's life and travels, and says that Robert adopted John. Anyone even remotely in the know can read between the lines.

I dug around a bit and thought about writing an article on the Allertons and their garden for a travel magazine with a gay focus (or a gay publication with a travel section?). I never did. In the September 2007 issue of Out, Bruce Shenitz did write such an article, entitled The Garden of Eden. Minus Eve.

Oh, and if you make it to Kauai, visit these gardens. They are stunning. And imagine the lives of the two men who called this place home and what those lives would have been like had they lived 50 years later.