October 07, 2008
Montana Trial Court Recognizes De Facto Parent
On September 29, 2008, a Montana trial court recognized that a same-sex partner could be recognized as a de facto parent to the children adopted by her partner during their relationship. Kulstad v. Maniaci, No. DR-07-34 (Mont. Fourth Dist. Ct. September 29, 2008).
Although the partner seeking custody rights did not formally adopt the children during their relationship (because Montana law prohibits same-sex adoption), she participated in raising the children and was an integral part of their lives on a daily basis. Id. at 7. The court recognized, however, that there is a special balance at issue here: the fundamental rights of the legal parent (the mother who had legally adopted the two children) and the fundamental rights of the children (to have their best interests considered). Id. at 21-28. In order to facilitate that balance, the court recognized that the non-legal parent in this case was a de facto parent to the children because she raised them as her own children and was held out (by both partners) as a parent to the children. Id. at 31. In fact, the legal parent "ceded some of her parenting authority " when she "represented to various persons . . . that they were adopting the children as a couple and intended to remain together as a family." Id. at 28.
Because both of the parties acted as parents to the children, the court granted the petitioner "joint decision-making authority regarding all significant matters affecting the children . . . ." Id. at 37.
August 03, 2008
Track the Money All the Way to California--Same Sex Marriage Debate
Proposition 8 would amend the California Constitution to take away marriage rights for same sex couples (overturning the recent California Supreme Court decision) and it is of national interest. Couples from other states could go to California to marry (although few home states, save Mass. and New York, would recognize the marraige) and the debate sparks interest across the nation.
July 31, 2008
Same Sex Marriage in Massachusetts
The Mass. Governor signed into law a repeal of the 1913 law barring same sex couples from marrying in Mass. if the marriage would violate their home state's laws. See Boston Herald Article here.
Now, couples can travel to Mass. to get married, even if their home state has a mini-DOMA. Here's the rub: the marriage will not be recognized in their home state due to the mini-DOMA, thus, the effect of the ceremony will remain largely ceremonious. Of course, this is not the case in New York, where the courts will recognize out-of-state same sex marriages due to the Martinez decision.
July 16, 2008
Oklahoma Supreme Court Vacates Dissolution of Marriage Between Same Sex Couple
A lesbian couple got married in Canada in 2002. One party to the marriage filed for divorce in Oklahoma in 2006. The divorce was granted in November of 2006. In January, 2007, the trial court vacated the divorce decree due to the fact that the marriage involved a same sex couple. O'Darling v. O'Darling, 2008 WL 2600682 (Oklahoma July 1, 2008) (unpublished opinion).
On July 1, 2008, the Oklahoma Supreme Court held that "the trial court properly vacated the decree of dissolution of marriage but erred in dismissing the petition for dissolution of marriage" because the parties to the divorce were entitled, under due process, to have notice and a hearing before the petition was formally dismissed by the court. Id. at *1.
Interestingly, the court did not address whether a same sex marriage from an out-of-state jurisdiction would be appropriately recognized in Oklahoma. Rather, the court simply stated that the district court could properly vacate an order that was obtained by fraud or mistake (here, the mistake/fraud being that the court was unaware that the marriage involved two women and not a man and a woman). Id. at *2.
However, because Oklahoma has a "mini-DOMA" it is quite clear that the State would not recognize out of state same sex marriages. See Andrew Koppelman, The Difference Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 266 n.4 (2007).
June 13, 2008
Same Sex Marriages in Norway
On June 11, Norway's Parliament supported a law making same sex marriage legal.
Norway is the sixth country to permit same sex marriages. See Google/Agence-France Presse Article: http://afp.google.com/
May 28, 2008
Maryland Court of Appeals Refuses to Recognize Categorical De Facto Parenthood Status
In Janice M. v. Margaret K., 2008 WL 2080681 (Ct. App. Md. May 19, 2008), the Maryland Court of Appeals held that "in order to overcome the constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a parent who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances as a prerequisite to the court's consideration of the best interests of the child." Id. at *1.
In other words, the court would treat a same-sex partner--here a partner of 18 years--as it would treat any third party who is not a legal parent of the child and seeks visitation or custody. The court refused to privilege the relationship of a parent-like figure or a "de facto parent" as opposed to a grandparent, a friend, or some other type of caregiver--even though the trial court only granted visitation, not custody to the same-sex partner.
This decision ignores the tight bonds that are formed between parental figures and children. True, the same sex partner in this instance did not adopt the child, however, it is unclear that a same-sex partner can adopt a child in Maryland. See id. at *19 n.1 (Raker, J., dissenting). Permitting the recognition of a de facto parent for visitation purposes does not ignore the "exceptional circumstances" prerequisite in my opinion--rather, it creates a condition that would always satisfy the exceptional circumstance test. In other words, if a parent permits a partner to act as a parent (i.e. creates a de facto parent), then the exceptional circumstance test is always met.
May 15, 2008
California Supreme Court Decision--A Huge Victory for Same Sex Marriage Advocates
The California Supreme Court TODAY holds that denying MARRIAGE rights to same sex couples violates the California Constitution on the basis of Due Process & Equal Protection.
The court explains that the marriage statutes must be subjected to strict scrutiny on two bases: (1) because they impinge on a the fundamental right to marriage; and (2) because sexual orientation is a suspect class. The second reason, that sexual orientation is a suspect class, is a very significant point, as there are very few courts that have recognized sexual orientation as a suspect classification (and the Supreme Court has not done so when interpreting the U.S. Constitution, either).
More to come...
California Supreme Court Decision--In re Marriage Cases About to Be Released
In just 6 minutes, the California Supreme Court is expected to release its decision in the critical In re Marriage Cases, which will decide whether the "separate but equal" system of same sex partnerships (Domestic Partner Registry) under is constitutional. You will be able to locate the court opinion here: http://www.courtinfo.ca.gov/courts/supreme/highprofile/
April 01, 2008
Symbolic Same Sex Marriage Ceremonies in State College, PA
The Mayor of State College, Pennsylvania (Mayor Bill Welch), performed marriage ceremonies for four gay couples last week. Although Pennsylvania law does not permit same sex marriages or civil unions, the Mayor made a symbolic statement in support of same sex marriage by presiding over the commitment ceremonies. See Philly.com Article from March 30, 2008.
This type of public support for same sex marriage is welcomed at a time when the fight for gay marriage in the courts continues to press on. For instance, gay rights supporters across the nation anxiously await the decision from the California Supreme Court (due by June) regarding whether it is constitutional to deny same sex couples marriage rights and, instead, provide them equivalent benefits as registered domestic partners.
March 25, 2008
Kerrigan & Mock, et al. v. Connecticut Department of Public Health
As we await the decision from the California Supreme Court (which is expected by June this summer) regarding the pending same sex marriage cases, another case is pending in Connecticut regarding the same issue.
Connecticut created civil unions in 2005, but same sex couples are currently challenging the law under the state constitution's due process and equal protection clauses. See N.Y. Times Article dated March 17, 2008.
March 11, 2008
Illinois Civil Union Law Final Action Deadline = March 14
In just a few days, we will know whether the Illinois Civil Union bill has passed in the Illinois General Assembly House.
The final action date in the Illinois House for the Illinois Civil Union Law (entitled the Illinois Religious Freedom Protection and Civil Union Act) is currently scheduled for March 14, 2008.
You can find information about the status of the bill (HB 1826) on the website for the Illinois General Assembly.
Oral Arguments from Cal. S. Ct. case: In re Marriage Cases
On March 4, 2008, the California Supreme Court heard oral arguments in the In re Marriage Cases. Shannon Minter, from the National Center for Lesbian Rights, argued on behalf of the same-sex couples.
The oral arguments are available on line, through the NCLR website.
January 03, 2008
Surrogacy Contract Not Against Ohio Public Policy
On Dec. 20, 2007, the Ohio Supreme Court held that the surrogacy contract at issue (involving a surrogate who was not genetically related to the child she carried to birth) was not against public policy. J.F. v. D.B., 2007 WL 4531973 (Ohio Dec. 20, 2007). It is important to note that the court was careful to limit its analysis to the issue at hand and specifically stated that this did not resolve the issue of surrogacy contracts involving women who were genetically related to the child. Id. at *2.
In this case the biological father contracted with a gestational surrogate to carry eggs implanted from a nonparty donor. The surrogate contract stated that the surrogate would be paid $20,000 for her services, require her to relinquish her parental rights and permitted the bio father to avoid child support payments from the surrogate if she was awarded custody. Id. at *1.
The court noted that no statute directly controlled the issue and all of the statutes referred to by the surrogate (trying to invalidate the contract to avoid claim of breach of contract & damages) related to inducement of payment for adoption. The court noted that adoption is not the same thing as gestational surrogacy and dismissed these statutes are off-point. Id. at *3
The dissent points out that the $20,000 payment for "services" is too hard to separate from the requirement of relinquishment of parental rights, which cannot be bargained for. Id. Also, in response to the argument that the surrogate never had any parental rights to begin with, the dissent state that it is unclear under Ohio law whether the gestational surrogate has any parental rights which could be relinquished. Id. at *4. Although there is no improper motive here, the contract is also contrary to public policy because it allows the father of the children to avoid potential child support obligations if custody is awarded to the surrogate in the future. Id. Finally, the dissent points out that this comes to close to a multistate commercial enterprise which, if unregulated, could permit child production contracts. Id. at *4-5.
This case raises many interesting legal questions:
(1) Should gestational surrogacy contracts be treated differently depending upon whether the surrogate is an egg donor or genetically unrelated to the child?
(2) Is the portion of the contract relieving the father of all child support obligations if the surrogate is awarded custody in the future contrary to public policy?
(3) Is the dissent's concern with multistate commercial child production contracts valid? Or, is this the type of practice that will be regulated based on state laws like any other multi-state activity--through a forum selection clause? As long as the claimants are not "forum shopping" in bad faith, can't they provide for the appropriate forum in the contract itself--avoiding the argument that the contract is somehow unregulated?
(4) Should it be legal for surrogacy contracts to provide compensation for "services" to cover expenses such as hospitalization and wellness care? Is this really a ruse for payment to relinquish parental rights?
(5) Would it be better if state legislatures took matters into their own hands by passing legislation relating to surrogacy? Should legislatures limit surrogacy in any way?
I will think about these matters some more as time progresses--but I welcome any and all thoughts and comments you might have on this issue.
January 02, 2008
New Hampshire Civil Union Law--Effective Date 1/1/08
New Hampshire residents were eager to celebrate the new year, as it marked the effective date for the New Hampshire Civil Union law.
Many couples celebrated with a civil union ceremony--an exciting way to begin the new year. See Boston Globe Article. New Hampshire is the fourth state that permits civil unions. Other states with civil union laws include: Connecticut, New Jersey, and Vermont.
December 18, 2007
Neither Illinois/Minnesotta Law Prohibits GSA Contract
In an unpublished opinion, the Minnesota Court of Appeals held that the parties' gestational-surrogacy agreement would be upheld and enforced the choice-of-law provision (interpreting the contract under Illinois law). See In re Paternity & Custody of Baby Boy A., 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007). Even though the court upheld the choice of law provision and applied Illinois law, the court went on to state that the GSA did not violate Minnesota public policy. Id. at *6-7. Interestingly, the neither one of the parties lived in Illinois and the contract was not executed there. However, the performance of the contract (or the artificial insemination of the surrogate) took place in Illinois. And, because the parties entered into the contract in good faith "without the intent to evade the law" (as Minnesota law does not clearly forbid GSAs), the court enforced the choice of law provision. Id. at *3. Illinois law, however, provides a clear statutory method for interpreting GSAs (however, because the parties entered into this particular GSA before the effective date of the statute, it was not binding on the parties in this case). Id. at *3, 7.
December 11, 2007
Rhode Island Court Holds Family Court Has No Jurisdiction to Grant Same Sex Divorce
In Chambers v. Ormiston, 2007 WL 4276781 (R.I. Dec. 7, 2007), the Supreme Court of Rhode Island held that the Rhode Island family court lacks jurisdiction to consider a petition for a same sex divorce. The couple went to Massachusetts to get legally married and then continued to live in their home state of Rhode Island until they decided to file a petition for divorce. Id. at *1.
The court explained that in order to determine whether the Family Court had jurisdiction over the case, it had to define marriage in the jurisdiction statute. Id. at *3. The statute, specifically, grants the Family Court the jurisdiction "to hear and determine all petitions for divorce from the bonds of marriage." R.I. Gen. Laws 8-10-3(a). The court then went on to consider what "marriage" means within the jurisdictional statute and explained that the term was unambiguous. Id. at *3. Thus, the court stated that it only had to apply the words as they were intended by the legislature. They gave the words their "ordinary meaning" by referring to a dictionary, but insisted that the words must be interpreted as of the year of the statute's enactment. Id. Consulting old dictionary editions (1955, 1961, 1963), the court found that the definition of marriage is excluded to a union between a man and a woman. Id. at *4. Thus, as this case involved a same sex couple, the court had no jurisdiction to dissolve their union because it was not a "marriage" within the terms of the statute. Id. at *7.
The dissent raised a very strong rebuttal, however. The dissenting Justices (Suttell and Goldberg) explained that the couple are legally married under Massachusetts law--and that is all that matters here. In fact, the Massachusetts courts have specifically found that Rhode Island citizens can legally marry in Massachusetts. Id. at *10 (citing Cote-Whiteacre v. Dept. of Public Health, 2004 WL 2075557, at *15 (Mass. Super. Ct. Aug. 18, 2004)). Because the couple is legally "married" under Massachusetts law, under principles of comity, the Rhode Island court has jurisdiction to hear the case. Id. at *9-10, 13. Specifically, the validity of a marriage is determined by consulting the laws of the place where that marriage was celebrated. Id. at *13. The marriage will be recognized by the new home State of the parties as long as it offends the public policy of the new State. Id. And, even if this same-sex marriage is void as against public policy in Rhode Island, the divorce laws contain a "catchall provision" 'Divorces from the bond of marriages shall be decreed in case of any marriage originally void or voidable by law . . . ." Id. at *12 (Quoting R.I. Gen. Laws 15-5-1). Thus, the court has jurisdiction over the petition for divorce. Id. at *15.
The dissenting opinion points out a host of valid points. Why did the court insist on defining "marriage" under the statute, when it is clear under well established interstate marriage law that the validity of a marriage, is determined by the place where the marriage was celebrated? Clearly, the couple was legally married under Massachusetts law. Joanna Grossman, in a FindLaw Post, also makes some very good points about the problem with the court's reasoning.
November 06, 2007
Florida Amendment Banning Same-Sex Marriage Gaining Momentum
Florida law already prohibits same-sex marriage. However, like many states, Florida voters and legislators wish to enact a State Constitutional Amendment banning gay marriage. The drive stems from voter concern that Florida courts might recognize gay marriage, overturning current State legislation.
The text of the proposed Amendment states:
"Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized." See Herald Tribune Article.
The language of the amendment is so broad, however, that it might impact gay and straight couples alike. The term "substantial equivalent" could be a problem for straight couples who have not wed, but enjoy health and retirement benefits due to county domestic partnership protections.
Domestic Parenter county laws have been upheld by Florida courts in the past. Broward County, for example, enacted law that protected "domestic partners" by granting them limited economic benefits if they work for the county. Lowe v. Broward County, 766 So. 2d 1199 (Fla. App. 2000). For instance, an employee of Broward County may elect to add a domestic partner to his or her insurance policy (whether the domestic partner is of the same sex or opposite sex). This statute was upheld against a challenge that it conflicted with the State DOMA Act. Id.
However, as the language of the proposed Amendment is so broad, domestic partnership State benefits (for both gay and heterosexual couples) may not survive scrutiny. Thus, heterosexual couples and gay couples alike could be impacted by the broad text of the Amendment, if it gains the 13,000 votes necessary to place it on the Nov. ballot and, subsequently, is adopted to the Florida Constitution.
October 29, 2007
Primary Residential Placement & Discrimination
Although it is illegal for a judge to discriminate when making a visitation or placement decision in child custody disputes, it occurs nonetheless.
A recent decision is a case in point: On Oct. 23, 2007, the Washington Court of Appeals affirmed the decision of a trial judge to place a child with its mother due to the father's transgendered status. In re Magnuson, 2007 WL 3072435 (Wash. Ct. App. Oct. 23, 2007). The trial court, in its finding of facts, concluded that "[t]he impact of gender reassignment surgery on the children is unknown." Id. at *1. Despite a case from the Washington Supreme Court admonishing that visitation rights must be determined on the basis of the best interest of the child, not the sexual preferences--or sexual orientation--of the parents, the court upheld the lower court's decision. Id. at *3 (citing In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983) (remanding the case because the court was unable to determine how the lower court made its decision)).
Granted, child placement decisions are very hard to overturn--considered on the basis of an abuse of discretion. Id. at *2. However, the strong dissenting opinion in the case presents an alternate view. The dissenting opinion agrees with the court's extension of the Cabalquinto decision to cover transgendered parents. But, the opinion points out that a judge has abused his discretion when he "applies the wrong legal standard or bases its ruling on an erroneous view of the law." Id. at *3 (Kulik, J. dissenting). The dissenting judge points out that the court found that the impact of the gender reassignment surgery on the children is "unknown" despite expert testimony that "transgender status does not ultimately have an impact on the parent's ability to parent[,]" the guardian ad litem report, and the advice of the court-appointed psychologist. Id. at *3-4. The guardian ad litem also found that Robbie, the transsexual parent, was more involved with the children on a day-to-day basis. Id. at *4. "Apparently, the only difference between the parents was that Robbie, the primary parent, planned to have gender reassignment surgery." Id.
The lower court could have split time between the two parents equally or taken the advice of the guardian ad litem and placed the children with Robbie, the primary caretaker. Instead, the court chose to focus on Robbie's transgender status and future gender reassignment surgery and placed the children with the other parent.
October 23, 2007
New Florida Bill Proposed--Homosexual Adoption . . . Sometimes
A new bill has been proposed in the Florida Senate (Senate Bill 200). The bill would grant a homosexual individual the opportunity to adopt a child, but only in some circumstances. Florida law has clearly prohibited homosexuals from adopting children for about 30 years.
The newly proposed law, however, would limit homosexual adoption to scenarios such as: when the child has already resided with the person, the child's parents are deceased, and the adoptive parent is the child's guardian. See Bay News 9 coverage from Oct. 23, 2007 ("New bill could challenge law against gay adoptions).
While it is a step in the right direction, it strikes me much like the ENDA debate does: a narrow provision, which should be more inclusive. It appears that this bill would not allow a gay person or couple to adopt a child if they have no prior connection to the child (unless the child's parents are deceased). This limited bill might let gay foster parents adopt, assuming they are the "guardian" of the child, but it would not allow a gay couple to simply adopt a child with no prior connection to that child. It still treats gay individuals in a manner different from straight individuals and, thus, seems to raise equal protection issues. (Obviously, the current law is worse, on that ground, however).
October 17, 2007
Same Sex Partner May Be Liable for Child Support, Despite Inability to Seek Custody/Visitation
Child support obligations are strong. They apply even if the other party would not be able to seek custody or visitation as a de facto parent because the child was a "legal or biological stranger." H.M. v. E.T., 2007 N.Y. slip Op. 51711 (Family Court, Rockland County, NY Sept. 11, 2007) (citing controlling N.Y. cases--omitted here).
If the same-sex partner agreed to become a parent via artificial insemination, even though that parent never formally adopted the child and is not the biological parent, he or she may be held liable for child support, the Rockland County Family Court announced. Under a theory of equitable estoppel, the court reversed a magistrate decision dismissing the biological parent's petition for an establishment of paternity and child support.
The court found that despite the lack of a written agreement between the parties, the respondent could be equitably estopped from denying her implied promise to provide child support. The court noted that previous decisions had reached similar conclusions when: (1) two parties were planning to adopt a child, but had not yet finalized the adoption, (2) the respondent had executed an agreement indicating an obligation for support of the child, or (3) the respondent held himself out as the father of the child despite DNA evidence indicating otherwise.
The primary concern here, the court noted, is the best interest and welfare of the child. "Cutting off [ ] support, whether emotion or financial may leave the child in a worse position than if support had never been given." Shondel J. v. Mark D., 7 N.Y.3d 320, 330 (N.Y. 2006).
Thus, because the petitioner relied on the respondent's actions in agreeing to conceive of a child through artificial insemination, the respondent may "be equitably estopped to deny her responsibility to provide support to the subject child." H.M. v. E.T., slip op. at 9.
Thus, the court ruled that a hearing should be scheduled to determine, under the facts of this case, whether the respondent may be equitably estopped from denying responsibility for child support in this case.
It seems fair to hold a same-sex partner liable for child support if the biological parent (or the other parent, if a surrogate was used) can demonstrate such reliance on the other's promise to help support the child. It seems unfair, however, for that other "parent" (at least for purposes of child support) to have no standing, then, to seek visitation/custody rights as well. If there is a reason to deny visitation rights (such as abuse or neglect), then it seems fine to deny visitation rights while demanding child support payments. In this situation, however, it seems inequitable to the "parent" paying the child support. Of course, in practical terms, it would have been much better for the biological mother if she had gone through the process of a second-parent adoption. By legally adopting the child, the second parent would definitely be held liable for child support and would also have the added protection of child visitation rights/custody rights.