LGBT PARENTING ISSUES

Transcription

1 LGBT PARENTING ISSUES Presented by: Joan M. Burda Attorney at Law 2035 Elmwood Avenue Lakewood, OH I. INTRODUCTION In a 2011 review of the 2010 Census figures by the Williams Institute at UCLA, approximately 3.8% of adults in the United States identify as lesbian, gay or bisexual. That same review suggests that 0.3% identify as transgender. According to the 2010 Census there are 626,464 same-sex couples in the United States. 131,729 were married couples and 514,735 were unmarried. And, most of those couples are raising children. Ohio has 19,684 same-sex couples. 14% of them identify as married. According to the Movement Advancement Project ( Ohio s adult population is 8,851,859; 318,667 of those adults identify as LGBT. That constitutes 3.6% of the state s population. Twenty-two percent of same-sex couples are raising children. Ohio does not recognize any relationships between same-sex couples. Ohio law and the state constitution restrict marriage recognition to one man and one woman. There are no exceptions. The June 2013 U.S. Supreme Court decision in United States v. Windsor does not change that fact. Even though the federal government will recognize same-sex marriages, even for couples residing in Ohio, the state will not. This is a rapidly changing area of law and the legal issues affecting the LGBT community require innovative and creative responses. This workshop is designed to provide you with information on the status of parenting rights, responsibilities and obligations facing lesbian and gay parents. A. Basic Parenting Issues for Ohio LGBT Couples In most lesbian and gay couples that are raising children, one is the biological or adoptive parent and the other, while assuming parental responsibilities, is a legal stranger to the children. Ohio does not permit stepparent adoptions by same-sex couples. While there is no Ohio Supreme Court decision on the issue, second parent adoptions are not being granted. In 2012, Governor Kasich instructed the Ohio Department of Health to not issue any birth certificates reflecting two same-sex parents. Ohio law defines "child" as a son or daughter, whether by birth or by adoption. (ORC (C)). 1

2 The parent-child relationship is defined as:...the legal relationship that exists between a child and the child's natural or adoptive parents and upon which those sections and any other provision of the Revised Code confer or impose rights, privileges, duties, and obligations. The "parent and child relationship" includes the mother and child relationship and the father and child relationship. The parent and child relationship extends equally to all children and all parents, regardless of the marital status of the parents. (ORC (A) (B)). In every respect, Ohio law assumes there is a father and a mother. Nothing in Ohio law explicitly provides for same-sex couples. Most lesbian and gay couples that are raising children must consider these issues: Who is a parent Who has rights, responsibilities and obligations to the children? What are the rights of the non-biological/adoptive parent if the relationship ends? Can I adopt the children? Will the adoption be recognized in Ohio? What steps can we take to give the non-biological/adoptive parent rights? II. JUVENILE COURT v. DOMESTIC RELATIONS COURT Since same-sex marriages are not recognized in Ohio, the county juvenile court has jurisdiction over any children being raised by those couples. Unlike marriage equality states, no child born to a married same-sex couple is considered a child of the marriage. This is different from heterosexual marriages where that assumption exists. Children born during a same-sex relationship are considered the children of the biological parent (father or mother). The parent s spouse/partner has no legal rights concerning the child. As a rule, only one person in a same-sex relationship can adopt a child in Ohio. That person would be considered the child s legally recognized parent. The other adult in the relationship has no legal standing concerning the child. When a heterosexual married couple divorces, the domestic relations court has jurisdiction to hear all issues involving the couple, its children and the assets. None of this applies to same-sex married couples. A. Divorce Some judges have indicated they would hear divorces for same-sex married couples. The problem with that lies in the state law governing divorces. Ohio law refers to husband and wife. These legal terms reflect the state s restriction of marriage to a man and a woman. In order to obtain a divorce in Ohio, either party must have a husband or wife living at the time of the marriage from which the divorce is sought. (ORC (A)). If a county domestic relations judge grants a divorce to a same-sex couple and issues orders concerning child support, visitation, custody and division of assets, the authority of the court to do so--known as subject matter jurisdiction can always be attacked. If the couple has disputes that arise after the divorce is granted, a higher court may nullify the underlying divorce and accompanying orders. That could create myriad problems for the couple and the children. 2

3 A married same-sex couple could divorce in one of the marriage equality jurisdictions. Most of them require at least one party to establish residency. The easiest appears to be Washington State as it requires the filing party to be present in the state. Some jurisdictions, Vermont, California, the District of Columbia, Canada do not require residency IF the marriage occurred in that jurisdiction. For example, couples that marry in DC may file for divorce there without either party establishing residency. The court in those states can also assume jurisdiction over the children. It is important to remember that getting married in a marriage equality jurisdiction 1 results in a legal marriage--even THOUGH OHIO DOES NOT RECOGNIZE IT. It is a real marriage. Following the Windsor decision, the parties to the marriage will need to formally dissolve that marriage before entering another one. Civil Unions and Domestic Partnerships are not recognized by the federal government under the Windsor decision. B. Family Issues Many lesbian and gay clients have children. Ohio does recognize Shared Custody Agreements and county juvenile courts have the authority to adopt them. In 2002 the Ohio Supreme Court decided that Shared Custody Agreements were enforceable. 2 The court also held that the nonbiological/adoptive party cannot be called a parent because the statutory definition does not include anyone who is not biologically or legally related to the child. However, under the Mullen decision the legally recognized parent has no legal obligation to allow her former partner any contact with the child if there is no such written agreement 3. There is nothing in the Mullen decision that indicates the Shared Custody Agreement must be filed with a court. This is a significant issue with same-sex couples. The Mullen decision clearly states that the biological/adoptive parent has superior rights to all others and the former partner has no rights to continued contact with the child if the parent objects. Because of the Mullen decision, it is imperative that all lesbian and gay couples execute a Shared Custody Agreement. If the biological/adoptive parent does not want to do so, it should be a red flag to the other party that there is a problem. Given the complexity involved and the lack of protection under Ohio law, same-sex couples thinking about or presently raising children, should consult with an experienced lawyer to draft a Shared Custody Agreement. 1) Artificial Reproductive Technology (ART) Artificial Reproductive Technology is a method that lesbian and gay male couples frequently use to start a family. ART and surrogacy are specialized areas of law. It will be worthwhile to bring in an experienced lawyer to assist in the process. ART requires the couple to locate a donor, usually through a reproductive clinic. This is an 1 California, Connecticut, Massachusetts, Delaware, New Hampshire, Vermont, Maine, New York, Iowa, Minnesota, Washington, District of Columbia, Rhode Island and Maryland 2 In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio In re Mullen, 129 Ohio St.3d 417, 2011-Ohio

4 expensive and time-consuming process. Using a legitimate clinic is in the client s best interest. When clients contract with a clinic for ART, they sign a clinic-prepared agreement. Clinics are notorious for downloading agreements from the Internet or using the tried and true cut and paste school of drafting. It is in the prospective parents interest to bring the contract to a lawyer for review BEFORE SIGNING IT. The parties can negotiate the terms and include or exclude clauses that do not apply. That means the prospective parents must read the complete contract since they will be bound by the contract terms. Prospective parents using a California clinic, and having the insemination occur in California, will be able to use California law to protect their rights. This is a quirk in California. To take advantage of it, consulting with a California lawyer experienced in working with same-sex couples is imperative. 2) Known v. Unknown Egg/Sperm Donors Using a known donor (egg or sperm) is never a good idea. A known donor creates an identifiable biological parent. Unless that person s parental rights are terminated through an adoption it will preclude the biological parent s non-biological partner from achieving any legal recognition. The biological parent will have specific and identifiable legal rights and responsibilities to the child--even if he or she does not want them and agrees to relinquish them in a written agreement between the parties. Even if the same-sex couple releases the biological parent from all obligations, including child support. Such an agreement may be impossible to enforce in court. Most courts will NOT relieve a biological parent from his or her legal obligations and responsibilities. The known donor may surface at some future date and demand a relationship with the child, even if everyone agreed otherwise before the birth. If there has been no adoption, the biological parent would have specific rights and they can trump those of any non-biological person who has been caring for the child. Using a known donor will make it difficult, if not impossible, to protect the non-biological parent. The Ohio courts have not yet ruled on a situation where a known donor is used and the same-sex couple executes a Shared Custody Agreement. An unknown sperm donor is preferred. Many lawyers refuse to work with a couple using a known sperm donor. There have been cases where the biological custodial parent seeks child support from the donor even if there was an agreement not to do so. The custodial parent may find herself in a financially distressed situation where child support is needed. In some cases, the parent has ended her relationship with her partner who was the co-parent. Since the former partner has no legal obligation to support the child, the biological parent may look to the known donor. Gay men may experience a similar situation if they use a known egg donor and a gestational surrogate. The egg donor may surface later and demand her parental rights or access to the child. Situations involving gay male couples are not as prevalent as those involving lesbian couples. 4

5 In a nutshell, using a known donor can create myriad problems because the biological and nonbiological parents engage in protracted litigation with the child at the center. Always include the spouse as a party to the agreement when the donor or surrogate is married. Likewise, the intended donee s partner should be included in the agreement. 3) Donor Agreements for those that insist on using known donors. Important provisions in all donor agreements: Name of sperm or egg donor Names of Prospective mothers or fathers and their partners Spouse of the donor or surrogate Explicit relinquishment of all parental rights by donor (probably unenforceable); Voluntary and informed legal and medical consent; Financial responsibility of the intended parents for all expenses; Intended parents have full legal custody and parental rights; Required testing of everyone (including donor s partner/spouse, if any) involved for STD, including HIV and AIDS; Donor agrees not to file any legal action against the intended parents with the intent of gaining custody or parental rights with the child; Donor agrees not to attempt to establish a parent-child relationship (may not apply where a gay male couple and lesbian couple agree to co-parent children; Specify the state law that applies to the contract 4) Surrogacy The Ohio Supreme Court has ruled that surrogacy contracts are valid and enforceable 4. The Court held that gestational surrogacy agreements are not void as against public policy. In 2010, the Court refused to hear an appeal from the 10 th Court of Appeals that found surrogacy contracts enforceable in Ohio 5 A surrogacy agreement is always required. This establishes the contract between the parties. The agreement provides specific language about the rights, responsibilities, obligations and understanding between the parties. All parties must sign these contracts: surrogate, donor, prospective parents and their spouses or partners. Separate attorneys must represent all parties. 4 J.F. v. D.B., 116 Ohio St.3d 363 (2007) 5 S.N. v. M.B. 188 Ohio App.3d 324, 2010-Ohio-2479 (10 th Dist.), 126 Ohio St. 3d 1525, 2010-Ohio

6 As with ART, surrogacy is a complicated area of law. Collaborating with an experienced lawyer is advisable. A traditional surrogacy involves a woman using her own egg and she is, therefore, the biological mother. After the birth, the surrogate relinquishes her parental rights in court. Many lawyers will not touch traditional surrogacy arrangements because there are too many pitfalls and problems. A gestational surrogacy involves a surrogate who has no biological connection to the child. This involves an egg and sperm donor. Gay men often use this type of surrogacy. In 2008, the ABA adopted a model act 6 addressing reproductive technologies, including surrogacy. This model proposes two alternatives to handling surrogacy agreements. One requires pre-approval by a judge for any agreement where neither prospective parent has a genetic tie to the child. The other introduces an administrative procedure. This would be used in cases where at least one of the prospective parents has a genetic tie to the child. All parties are required to submit to specific requirements, including a mental health evaluation, health insurance coverage and legal consultation. Lawyers involved in a surrogacy practice have begun seeking judicial approval of surrogacy contracts. With all parties represented by counsel such a move lessens the chance of problems later. This will add to the overall cost of the process. But, it will be cheaper than fighting over the child later. The essential parties to these contracts include the intended parents, the surrogate, the egg donor (if one is used) and their respective spouses/partners. A surrogacy contract should contain some basic clauses. These include: The jurisdictional law relative to the state where the surrogate lives; The state where the children will be born; The state where the family will live; The state law that governs the contract; Financial issues: surrogate compensation, attorney fees; use of trust account; Who pays for health or life insurance and contingencies if the insurance lapses; Termination of the surrogate s parental rights and those of her husband; Address multiple births, including whether selective reduction will apply; All parties must sign legal and medical consent forms, include HIPAA language; 6 American Bar Association Model Act Governing Assisted Reproductive Technology (February 2008); oxystylesheet=default_frontend&site=default_collection&output=xml_no_dtd&oe=utf-8&ie=utf 8&ud=1 6

7 Attach all applicable laws from all states involved; Describe the specific responsibilities of all parties, during and after the pregnancy; Designate the law that applies to contract enforcement; Mediation or arbitration of disputes; which court has jurisdiction; liability for costs and attorney fees 5) Shared Custody Shared Custody Agreements are important to execute in any situation involving same-sex couples raising children in Ohio. These agreements allow the prospective parents to stipulate their intentions, acceptance of certain obligations and responsibilities and spell out their rights in relation to the children. In Ohio do not use parent in the agreement because that term is defined in the statute and the Ohio Supreme Court specifically found that lesbian and gay couples could not both be parents. These agreements should be part of any estate plan when children are involved. There is less of an imperative if the clients are just discussing having children. Once the decision is made, however, clients need to understand the importance of these agreements. Biological or adoptive parents have a right, under the U.S. Constitution, to the full care, custody and control of their children. However, these parents can waive those rights in favor of another person. Shared custody agreements should include language that addresses the waiver of these rights. Ohio recognizes only the biological or adoptive parent in a same-sex relationship. In this situation, should the couple end their relationship, the non-recognized partner may be denied contact with the child. In the alternative, the legally recognized parent may have no recourse to obtain continued support from the non-recognized former partner. The caselaw reveals that lesbian and gay parents can behave just as badly as their heterosexual counterparts. Ohio allows the couple to seek a court order that adopts the Shared Custody Agreement. This gives the agreement greater enforceability. It formalizes the agreement and ensures that neither party can argue they did not consent to the order. However, that is not required. In 2011, the Ohio Supreme Court issued a ruling in, In re Mullen 7. The case involved a known donor, a non-legally recognized former partner and the biological mother. The court ruled the former partner had no rights period end of story. Even though the partner paid for the in vitro fertilization (IVF) procedure, helped raise and financially and emotionally supported the child. Since the biological mother never signed a shared custody agreement, she never waived her rights to sole care, custody and control of the child. The biological father was also a party to the case because he sought custody. While this case has caused consternation among many lawyers representing lesbian and gay Ohio St.3d 417, 2011-Ohio

8 clients, it must be noted the former partner was treated the same as a stepparent. The fact the biological mother refused to sign a shared custody agreement should have been a red flag for her former partner. The Mullen court went to some length to emphasize it was not overruling the In re Bonfield 8 decision. The Bonfield decision allows a same-sex couple to have a shared custody agreement adopted and enforced by court. What the Mullen decision did emphasize is the need for a formal, court-approved, agreement concerning custody, visitation and support. However, the question the court did not address is what happens if there is such an agreement and the known donor shows up seeking to enforce his parental rights. Does the biological father/mother need to be a party to the shared custody agreement? And, is the agreement binding on the known donor if he or she changes her mind later? 6) De Facto or Psychological Parents Ohio does not recognized de facto or psychological parents. Utah, Iowa, Illinois, Michigan, New York, Tennessee and Vermont also do not recognize de facto parents. However, Illinois, Iowa, New York and Vermont permit second parent adoptions. 7) Adoption Adoption is created by statute and is strictly construed. Adoption often comes into play with lesbian and gay couples. There is some question about whether Ohio law permits second parent adoption. There is no explicit ban on the procedure. The only decision on the issue comes from the 9 th District Court of Appeals 9. The Ohio Supreme Court has not decided the issue. There are reports that some probate judges have granted these adoptions. The Ohio adoption statute is silent on the issue of second parent adoption. Since adoption is a statutory creation, the law will be strictly construed. Judges have no authority to interpret the plain language of the law. In Ohio, ORC provides the following persons may adopt: (A) A husband and wife together, at least one of whom is an adult; (B) An unmarried adult; (C) The unmarried minor parent of the person to be adopted; (D) A married adult without the other spouse joining as a petitioner if any of the following apply: (1) The other spouse is a parent of the person to be adopted and supports the adoption; (2) The petitioner and the other spouse are separated under section or of the Revised Code; (3) The failure of the other spouse to join in the petition or to support the adoption is found by the court to be by reason of prolonged unexplained absence, unavailability, 8 97 Ohio St.3d 387, 2002-Ohio In re Adoption of Jane Doe, 130 Ohio App.3d 288, 1999-Ohio-63, 719 N.E.2d 1071 (Ohio App. 9 Dist. 1998) 8

9 incapacity, or circumstances that make it impossible or unreasonably difficult to obtain either the support or refusal of the other spouse. The Ohio Department of Health, under instructions from Governor Kasich, will not permit a new Ohio birth certificate to issue that reflects two same-sex parents. Same-sex couples that adopted an Ohio born child in other states cannot obtain a new birth certificate reflecting their parental status. A court order from another state that grants an adoption is entitled to recognition under the Full Faith and Credit clause of the U.S. Constitution. The underlying same-sex relationship of the parents will not be recognized, but adoptions finalized in other states will be recognized. Ohio same-sex couples may consider taking advantage of other options. New Jersey, for example, will put both names on the birth certificate if (1) the child is born in the state and (2) the prospective parents are married before the birth. The New Jersey adoption process can be started and completed in approximately 90 days following the birth. If the couple used a known donor, that person s parental rights will be terminated at the same time. It is necessary to consult with a New Jersey lawyer in order to file the necessary legal papers. Some people seek adoptions in stealth mode. They find a sympathetic judge who may grant the adoption. However, that situation may blow up if the couple ends their relationship and the biological parent decides to challenge the adoption. It happened in North Carolina with devastating results. In 2010, the North Carolina Supreme Court declared the adoption by the biological mother s lesbian partner to be void ab initio 10. That is a fancy legal term for it was invalid from the beginning. The North Carolina decision not only invalidated the adoption in that case but all other adoptions by same-sex couples as well. The effect on families in and outside of North Carolina has yet to be fully determined. Some families who obtained an adoption in North Carolina no longer live in the state. California, Oregon, Montana, Colorado, Illinois, Indiana, Pennsylvania, New York, Vermont, Maine, Massachusetts, Connecticut, New Jersey and the District of Columbia permit second parent adoptions. Utah, Nebraska, Wisconsin and Kentucky restrict second parent adoption. The situation is uncertain in other states. Joint adoption presents a different geographic layout. Eighteen states and the District of Columbia allow joint adoption 11. Nevada, California, New York, Massachusetts, Rhode Island New Jersey and Maryland prohibit discrimination in adoption based on sexual orientation. California and Rhode Island also prohibit discrimination in adoption based on gender identity. 10 Boseman v. Jarrell, 364 NC 537 (416PA08-2) 11 California, Washington, Oregon, Nevada, Iowa, Illinois, Indiana, New York, Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland and the District of Columbia. 9

10 8) Adoption Credit Unmarried same-sex couples can claim the federal adoption credit because the stepparent exclusion does not apply. Before the Windsor decision, the IRS sometimes denied the credit. Requesting the IRS to provide the statutory and regulatory authority for the decision was the usual response. Now that Windsor has been decided, married same-sex couples--even though living in a nonrecognition state like Ohio, will no longer be eligible for this credit. The federal government will presume it is a stepparent adoption. The Internal Revenue Code, Section 36C, authorizes an adoption credit for qualified adoption expenses. The taxpayer pays the expenses. The credit does not apply if the expenses were paid for with a grant or by an employer s plan. The expenses involved in the adoption of any child under 18 are deductable under this section of the code. There are exclusions from this credit that includes expenses incurred for carrying out surrogate parenting agreements. Also, the credit does not apply to an adoption of the taxpayer s spouse s child. The IRC does not require termination of parental rights. III. ESTATE PLANNING A. Guardians As part of the estate planning process, parents must provide for their children. If the children are minors, the will must include a guardian provision. This should also include a clause naming a Bridge Guardian. That person would be responsible for the children until the Probate Court can act to name a permanent guardian. Among many Ohio gay and lesbian couples that are raising children there is only one legally recognized parent. The other partner may have a strong parent-child relationship but it is not recognized by state law. A guardian clause in a will is particularly important for lesbian and gay couples raising minor children. The guardian clause can include language for the testator to grant consent to the surviving partner to adopt the children. This can allay any concern that the deceased parent would oppose adoption. I name my partner, Elizabeth R. Anderson, as guardian of our children, Robert and Emily. I appoint her guardian of their person and estate. We have raised these children together from their birth. I consider her their parent. Ohio law does not appear to allow second parent adoption or we would have pursued that avenue. I waived my constitutional rights to the full care, custody and control of our children in favor of Elizabeth during my lifetime. I want her to continue to raise our children. I consent to Elizabeth adopting Robert and Emily. I ask that any probate court recognize this declaration as my consent to the adoption. It is in our children s best interest that they continue to be raised by their other parent, Elizabeth R. Anderson. 10

11 We executed a Shared Custody Agreement on December 10, 2003 after Robert was born. We amended the Agreement after Emily s birth. That Agreement was adopted by the Cuyahoga County Juvenile Court on August 7, An area of significant concern is the failure of some parents to have the Shared Custody Agreement adopted in court. Lawyers can encourage, cajole and insist, but the client that must take action. Agreements that are not adopted by a court have less authority and may be unenforceable if repudiated by the legally recognized parent. In situations where there is a fear the non-biological/adoptive parent will not be appointed as guardian, use a trust. Placing the children s inheritance into a trust will allow the surviving parent to continue having contact with the children. Think of this as the Auntie Mame clause--she got the kid; the bank controlled the money and maintained access to the kid. An additional clause to consider names a bridge guardian. This person takes the children until the court names a guardian. For lesbian and gay couples, this clause could prevent the children being removed from their home when their legal parent dies and placed in foster care or with relatives they do not know.. It is important to maintain continuity for the children. A bridge guardian may be one tool to accomplish that purpose. B. Trust A guardianship lasts until the child turns 18. If the parents have significant estates or assets, they may want to consider establishing a trust for the children. Under the trust, the parents can name the trustee who will be responsible for administering the trust. The trust can be set up to provide for the children s food, housing, education, medical care and any other matters that are important to the parents. More importantly, the trust can continue past the children s 18 th birthday. Some trusts continue until the children reach 30, 40 or later. When the trust will end needs to be discussed with the parents and their attorney. The trust can also be helpful if there is no adoption and the biological/adoptive parent wants to make sure his/her partner continues to have contact with the children. This often is a concern if the parent s family will interfere with the surviving partner s relationship with the children. If the Probate Court does not name the surviving partner the guardian, naming that person as the trustee will allow her to continue having contact with the children. Further, the trust will control the children s estate and assets. The guardian will not control the money. C. Domestic Partnership Agreements (DPA); Pre-Nuptial Agreements (PNA) DPAs and PNAs are an important part of the estate plan. This document reflects the parties intentions concerning their relationship. It is also a vehicle to provide the mechanism by which the couple may end their relationship. Mediation clauses allow the clients to agree to resolve disputes without resorting to costly litigation or arbitration. 11

12 Independent counsel must represent both prospective spouses. As a rule, one lawyer should not represent both parties. Without separate counsel, a judge may void the agreement if the unrepresented party raises questions later. Having two lawyers involved results in less chance the agreement will be thrown out. a. Children, Custody, Visitation and support. If the couple is unsure whether they will have children, include a provision allowing the parties to revisit the issue later. For those couples that plan to start a family, include language addressing how they intend to proceed: IVF, surrogacy, known/unknown donor; egg donor, etc. Ohio couples need to consider the legal ramifications of having children when only the biological or adoptive parent will be legally recognized. Unless the couple obtains a second parent adoption, the non-biological partner will not be considered a parent under Ohio law. The pre-nuptial is not a substitute for a Shared Custody Agreement or a Donor Agreement but that agreement should be incorporated into the DPA or NPA. IV. CONCLUSION This complicated area is fraught with emotions as well as legal considerations. Any couple that is raising children must put their interests and welfare first. Consulting with an experienced attorney is essential. Taking that step will protect the children as well as the parents interests. It is also important to remember that same-sex couples face additional hurdles and barriers to their families. Consider the well being of the children before all else. Get the legal documents that are needed. Get a second-parent adoption--and remember, even though Ohio does not recognize our relationships--an adoption is real and enforceable in court. This paper introduces the issues. This is NOT a DIY solution to the matter. I strongly encourage any couple or individual considering whether to start a family to discuss the matter with an experienced lawyer. Too many things can go wrong. And, many of those problems cannot be fixed later. Ask the questions now and proceed from a position of knowledge. Winging it is not an option. 12