Family Law Prof Blog

Second Parent Adoption, DOMA, and Genetic Child

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

 
This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.

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Same-Sex Marriage: New York

According to a NY Times blog here, New York's Governor Paterson will announce on Thursday morning that he intends to introduce a same-sex marriage bill in the NY Legislature.  States bordering New York have legalized same-sex marriage.

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Same-Sex Marriage in Iowa

Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional.

UPDATE:   The opinion is now available as pdf here.

UPDATE:  My analysis is now available on ConLaw Prof Blog here.

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Same-sex Marriage Updates

UPDATE: Iowa Supreme Court ruling on gay marriage set for release Friday, story here.

                    

It is being widely reported that the Swedish Parliament,

in a 261-22 vote, approved same-sex marriage.

Meanwhile in the United States, the Vermont Legislature is set to vote on a same-sex marriage bill, a bill which the Governor has stated he will veto.  Vermont has civil unions for same-sex couples.

In Iowa, the wait for a decision on same-sex marriage from their highest court after oral arguments last December continues, and in New York, the highest court has decided to hear cases regarding New York's recognition of out-of-state same-sex marriages.

In West Virginia, the state legislature did not allow a constitutional amendment banning same-sex marriage to proceed.

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Marriage: (re) defined

Many courts resort to the dictionary when trying to decide the "common meaning" of a word, including a word such as "marriage."

According to the online Merriam-Webster Dictionary here:

Note definition 1a(2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage <same-sex marriage>.

There is apparently some controversy, reported over at  Pam's House Blend.


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Marriage Developments - - - abolition or inclusion?

Perhaps the solution to the "marriage wars" is the abolition of marriage?  It's a proposal that has been made from different theoretical perspectives in years past, but of late it has been garnering attention.  TIME MAGAZINE picked up a piece published earlier this month in the SF Chronicle authored by two Pepperdine law profs who recommend that the California Supreme Court in Strauss v. Horton (the Proposition 8 case, see more here),

Direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent.

Interestingly, there is also anew California Initiative, blogged over on ConLawProf here, that

Replaces the term “marriage” with the term “domestic partnership” throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation.

Meanwhile, the Vermont legislature which passed its civil union law for same-sex couples after Baker v. State,  is considering opening marriage to same-sex couples, according to the NYT here.

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Proposition 8 Arguments

Today, the California Supreme Court heard oral arguments for three hours on the challenge to California's Proposition 8.   I've blogged about the arguments on ConLawProf here.

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DOMA section 3 Challenge Filed

Gay & Lesbian Advocates & Defenders (GLAD) filed a 92 page complaint today in the US District Court for Massachusetts.  Same-sex marriage has been recognized as a matter of state law in Massachusetts since the state’s highest court decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

I've discussed this over at the Con Law Prof Blog here.

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Same-Sex Marriage Op-Ed

An interesting op-ed in the New York Times on same-sex marriage - - - and what makes it interesting is its authors:

David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.”

The op-ed calls, predictably enough given its joint authorship, for a compromise:

clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.

Assigning students to research op-eds or read particular ones can bring current policy debates into our study of cases.  And having law students write an op-ed - - - or perhaps two op-eds, one on each side - - - can be a great writing exercise and method of learning to articulate policy.   

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Tort Claim Against Hospital for Denial of Visitation for Dying Same-Sex Partner

The Miami Herald reports that a federal judge in the Southern District of Florida will decide whether the  tort case against a Miami hospital for failure to allow visitation to a same-sex parent could proceed to trial.  The surviving woman, Janice Langbehn, is from Washington state and was on a cruise with her partner of seventeen years, and their three adopted children, when the now-deceased woman had a heart attack.  The hospital refused visitation for over eight hours; Langbehn was allowed to see her partner receive last rites.  A copy of the complaint in pdf is here; more information is available on the Lambda website here.

The tort suit brings Florida's "little DOMA" legislation into sharp relief - - - Florida has both a statute and a constitutional amendment defining marriage as limited to one man and one woman. 

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Surviving Same -Sex Partner in Canadian marriage ruled "spouse"

In a brief opinion, a Surrogate Judge in New York recognized a Canadian same-sex marriage for probate purposes, declaring the surviving partner the "surviving spouse and sole distributee" and thus not requiring process to other members of the decedent's family. A copy of the Kristin Booth Glen's opinion, published in the New York Law Journal, page 27, today, is available here  and the front-page article is available here,
and continued here.

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Colombia Constitutional Court" same-sex marriage

For a discussion of this week's decision on same-sex relationships by the Colombia Constitutional Court, see my post on Constitutional Law Professors blog here.

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Same-sex marriage, New York, and recognition of out of state marriages

Although New York's highest court, the New York Court of Appeals, found there was no state constitutional right to same-sex marriage, Hernandez v. Robles, a recent lower appellate court recognizes same-sex marriages entered into in states where such marriages are valid (such as neighboring Massachusetts).

As a local newspaper, Times Herald-Record, reports here,  a "lesbian couple has won a state Appellate Court ruling affirming a state directive recognizing out-of-state marriages for same-sex couples. The ruling confirms the legality of an executive directive issued last year by Gov. David Paterson, ordering state agencies to recognize out-of-state gay marriages and all the attendant health benefits that may involve."

The relatively brief opinion in Lewis v New York State Department of Civil Service, from the Third Department of the Appellate Division, is available on the court's website here or as a pdf here.

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Presidential Family Agenda

The new Presidential website - - - www.whitehouse.gov - - - complete with its own blog, is a wealth of information regarding the new Administration's family law agenda.  It has some specific proposals and ideas, which might inform classroom discussions, class problems, or even (for those FamilyLaw Profs already thinking ahead at the beginning of this semester) exam questions.

Here's a sampling from the "family" portion of the website, many of which pertain to economic matters:

• Expand the Family and Medical Leave Act (FMLA): The FMLA covers only certain people who work for employers with 50 or more employees. Barack Obama and Joe Biden will expand the FMLA to cover businesses with 25 or more employees, and to cover more purposes including allowing: leave for workers who provide elder care; 24 hours of leave each year for parents to participate in their children's academic activities at school; leave for workers who care for individuals who reside in their home for 6 months or more; and leave for employees to address domestic violence and sexual assault.
• Encourage States to Adopt Paid Leave: President Barack Obama will initiate a 50 state strategy to encourage all of the states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Barack Obama and Joe Biden will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve one million more children. They will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Barack Obama and Joe Biden will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Barack Obama and Joe Biden will commit the government to enforcing recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Barack Obama and Joe Biden will address this concern by creating a program to inform businesses about the benefits of flexible work schedules for productivity and establishing positive workplaces; helping businesses create flexible work opportunities; and increasing federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to petition to request flexible arrangements.

• Strengthen Fatherhood and Families: Barack Obama has re-introduced the Responsible Fatherhood and Healthy Families Act to remove some of the government penalties on married families, crack down on men avoiding child support payments, ensure that support payments go to families instead of state bureaucracies, fund support services for fathers and their families, and support domestic violence prevention efforts. President Obama will sign this bill into law and continue to implement innovative measures to strengthen families.
• Support Parents with Young Children: Barack Obama and Joe Biden will expand programs like the successful Nurse-Family Partnership to all low-income, first-time mothers. The Nurse-Family Partnership provides home visits by trained registered nurses to low-income expectant mothers and their families. Researchers at the Federal Reserve Bank of Minneapolis concluded that these programs produced an average of five dollars in savings for every dollar invested and produced more than $28,000 in net savings for every high-risk family enrolled in the program. The Obama-Biden plan will assist approximately 570,000 first-time mothers each year.

Some family law matters relating to sexual minorities are contained on the "civil rights" page and include:

• Support Full Civil Unions and Federal Rights for LGBT Couples: President Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
• Oppose a Constitutional Ban on Same-Sex Marriage: President Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.
• Expand Adoption Rights: President Obama believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation. He thinks that a child will benefit from a healthy and loving home, whether the parents are gay or not.

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Proposition 8 - Two Panels at AALS

The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court.   I've posted a synopsis of the panels on Constitutional Law Professors Blog here.

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LGBT - Elder Law Scholarship

"LGBT Elder Law: Toward Equity in Aging" by Nancy Knauer of Temple U will be published in the next volume of Harvard Journal of Law and Gender.  Here's the abstract from ssrn:

This Article argues for broad based reform to ensure equity in aging regardless of sexual orientation or gender identity. At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal.

The concerns of LGBT elders have not been well represented by the existing ethnic model of LGBT identity that emphasizes the positive and heteronomative aspects of LGBT lives and seldom foregrounds points of difference or intersecting identities. The concerns of LGBT elders require a more nuanced theory of LGBT identity and advocacy -- one that extends over an individual's lifespan, incorporates pre-Stonewall LGBT history, and confronts difficult issues head on, including ageism and internalized homophobia. It must embrace not only the sameness of LGBT individuals, but also their differences. For example, LGBT elders frequently rely on single generational "chosen families" to provide support and care. The recognition of same-sex relationships, while important to LGBT elders, would not be sufficient to address this concern. This Article examines the three signature issues of the LGBT equality movement (same-sex marriage, ENDA, and Don't Ask, Don't Tell) from the perspective of LGBT elders. It then compares these issues to three distinct areas of concern for LGBT elders: the legal fragility of chosen family, financial insecurity, and the availability of LGBT-positive housing and eldercare.

The current ethnic model of LGBT identity has a strong essentializing tendency that presumes a sameness among LGBT individuals. Queer theory, critical race theory, and feminist theory have all produced sustained critiques of this tendency. The study of LGBT elders adds another dimension to this critique because the essentializing impulse of the ethnic model also obscures an important generational element. The pre-Stonewall generation is not the same as their "out and proud" post-Stonewall progeny. Their identities were formed at different times and under dramatically different circumstances. Thus, LGBT identity as it is lived and experienced is not only multivalent, it is also historically contingent.

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Updates on Same-Sex Marriage: Iowa, NJ, California

The news from IOWA:

As the New York Times reports on Iowa's same-sex marriage case argued on December 9:

The legal core of the case, Varnum v. Brien, is whether the state’s 10-year-old law defining a “valid” marriage as only “between a male and female” violates the Iowa Constitution’s guarantees of equal treatment and due process.

A trial court judge ruled last year that the law was unconstitutional and that a dozen gay men and lesbians had been wrongly denied marriage licenses in Polk County, which includes the state capital, Des Moines. The state appealed the ruling, leading to Tuesday’s oral arguments.

But the technical details of the law and the Constitution were only part of a free-wheeling discussion lasting nearly two hours in which the seven justices repeatedly interrupted the lawyers, demanding that they parse and defend their positions.

The Iowa court has posted a video stream on the oral argument, but for the moment it doesn't seem to be working, check here: www.judicial.state.ia.us.

Copies of briefs, court documents, facts sheets, and press releases are available from Lambda Legal Defense Fund here.

In NEW JERSEY:

As the New Jersey Star-Ledger reports, the NJ Civil Union Review Commission's final report will conclude that the "state's civil unions law fails to adequately protect same-sex couples" and same-sex marriage should be allowed. 

The Civil Union Review Commission report is not available yet, but an interim report and many other materials are available on the Commission's website here.

And in CALIFORNIA

  as well as nationwide, protests over Proposition 8 continue.  Today's action, as discussed in the LA Times here and elsewhere is a work stoppage:"Gay rights activists are encouraging people to “call in gay” to work today to demonstrate how integral gay people are to American society."

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Same-Sex Marriage - California Prop 8

The California proposition amending the state constitution to define marriage as limited to one man and one woman will be heard by the California Supreme Court.   I have discussed this issue on the ConLawProf blog here.

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Ballot Initiatives

In yesterday's voting across the nation, several states had ballot initiatives relating to family law.

Florida, Arizona & California each presented constitutional amendments banning same-sex marriage. Florida and Arizona both passed the amendment and, in California, with more than 95% of the vote counted, Proposition 8 leads 52.1% to 47.9%. The effect of this amendment on the estimated 18,000 same-sex couples who wed in California during the last 4 1/2 months is unclear.  Court challenges to the law are already in the works.  All three amendments define marraige as "a union between one man and one woman."  Florida's amendment also provides that "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

Arkansas Initiative 1, which bans an individual who is “cohabiting with a sexual partner outside of marriage which is valid under the constitution and laws of this state” from adopting or serving as a foster parent to a child, passed with 57% of the voter's approval.

A number of states had ballot initiatives related to abortion.  Colorado's Amendment 48 would have defined a "person" from the point of egg fertilization. The amendment was defeated nearly 3 to 1.  South Dakota's Measure 11 again proposed a ban on abortion, with some exceptions for incest, rape or when the mother's life or health are endangered.  The effort to set up a test case to challenge Roe v. Wade was rejected by 56% of voters. California Proposition 4 would have required doctors to notify a minor's parents before performing an abortion and mandated a 48-hour waiting period before the procedure was narrowly defeated.

For a summary of these and other ballot initiatives, see the Time report.  (BGF)

Case Law development: Connecticut Supreme Court decides same-sex marriage case

The Connecticut Supreme Court has just released its opinion in the state same-sex marriage case, Kerrigan v. Commissioner of Public Health, SC 17716 (October 10, 2008), with three dissenting opinions.

The Court held the state's opposite-sex marriage requirement UNCONSTITUTIONAL under its state constitutional equal protection clause applying intermediate scrutiny.

A pdf of the 85 page opinion is available here.   Three dissenting opinions available at the Connecticut Supreme Court website.

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