Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.

I.  STANDARD ADOPTION:

With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.

II. SECOND-PARENT ADOPTION:

This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.

III.  STEP-PARENT ADOPTION:

The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.

IV.  CHILDREN CONCEIVED BY ONE PARTNER:

If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.

ADDITIONAL GENERAL ADOPTION INFORMATION

You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.

 

Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area. 

 

Supreme Court Oral Argument in DOMA case – full transcript and link to audio

This morning the Supreme Court heard oral arguments in United States v. Windsor, Case No. 12-307. In this case, Edie Windsor is challenging the constitutionality of the “Defense of Marriage Act” (DOMA), a federal statute that defines marriage for all federal purposes as a legal union between one man and one woman as husband and wife.  Mrs. Windsor shared her life with her late spouse, Thea Spyer, for 44 years.  They were married in Canada in 2007, and were considered married by their home state of New York. Spyer died in 2009. Because DOMA refuses to recognize otherwise valid marriages of same-sex couples, Spyer’s estate had to pay more than $350,000 in federal estate taxes.  A heterosexual couple in the exact same circumstance would not have had to pay any taxes, pursuant to the estate marital tax deduction.  Mrs. Windsor is seeking to have DOMA declared unconstitutional, an argument she won at the lower court level.

Read and/or download the transcript here.

Listen to the audio of the oral argument here.

As with the Prop 8 arguments that occurred yesterday, we will post our thoughts on the arguments in the next few days.

Supreme Court Oral Argument in Prop 8 case – full transcript and link to audio

This morning the Supreme Court heard oral arguments in Hollingsworth v. Perry, Case No. 12-144. In Hollingsworth, Respondents are challenging the constitutionality of Proposition 8, the voter passed initiative ending same-sex marriages in California.  Proposition 8 was found unconstitutional at both the trial court and the appellate court levels and at the end of 2012, the Supreme Court agreed to hear the case.

Read and/or download the transcript here.

Listen to the audio of the oral argument here.

We will post our thoughts on the arguments in the next few days.  Though all agree that it is nearly impossible to predict a ruling based solely on the oral arguments, thus far, many of those present have indicated they expect the Court to dismiss the case based upon  jurisdictional issues or to dismiss the case based on a conclusion that it ‘improvidently granted’ certiorari, meaning it should not have agreed to hear it in the first place.  If either of those occurs, then one of the two lower court rulings will stand, Prop 8 will be struck down as unconstitutional and same-sex marriages will begin again in California.  However, a ruling from the Supreme Court is not expected until late June 2013.

Colorado Supreme Court to live stream oral arguments in Lobato, et. al. v. State of Colorado regarding State’s educational funding

The Colorado Supreme Court has announced that it will live stream the oral arguments in Lobato, et. al., v. State of Colorado tomorrow, Thursday, March 7, 2013 from 9:00 a.m. – 10:30 a.m.  The Court explained that it agreed to the unusual procedure because demand for seats in the courtroom so heavily outweighs availability. In addition to the live stream available on the Internet, the Court will also live stream the argument into the Colorado Court of Appeals Courtroom on the first floor of the Ralph L. Carr Colorado Judicial Center and in the training facility in the office tower.

The issues raised in the Lobata case are centered on state educational funding.  Colorado’s constitution imposes a duty on the state to provide “for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.”  Plaintiffs challenged the funding of public schools, arguing that as a result of irrational and inadequate funding of public education, Colorado has failed to establish and maintain a “thorough and uniform system” of public education. Following a trial, the lower court held that Colorado had failed to meet its constitutional duties, and ordered it to reform its funding system.  On appeal before the Colorado Supreme Court, the State has raised a number of challenges to the lower court’s decision, including arguments that upholding the district court decision would be an unconstitutional judicial intrusion on the executive branch and the legislature, and that education spending must be balanced with other state budgetary needs.  Some of the Plaintiffs in the case include parents of Boulder Valley School District students.

Online streaming of tomorrow’s oral arguments can be heard here.

The Opinion of the trial court that is the subject of the appeal can be found here.

Update on briefs filed in DOMA and Prop 8 cases

As the arguments set before the Supreme Court approach in both the DOMA and Prop 8 cases, several parties have filed amicus curiae briefs urging the Court to strike down both laws.  Notably, a group of 75 Republicans filed an amicus brief arguing that Prop 8 violated both the equal protection and due process rights of same-sex couples.  Even the State of California, which has refused to defend the law, submitted an amicus brief asking the Court to declare its own law unconstitutional.  Additionally, a group of 278 employers filed a brief in the DOMA case urging the Court to strike down the law as unconstitutional.  The employers included Apple, Facebook, Intel, AIG, Oracle, McGraw Hill, Verizon, Levi Strauss, Cisco, Morgan Stanley, Nike, Panasonic, Xerox and hundreds more.

The Department of Justice, on behalf of President Obama’s administration, has also weighed in by filing an amicus brief in each case. In the Prop. 8 case, President Obama filed an amicus brief arguing that Prop. 8 violated the equal protection rights of same-sex couples.  Stopping short of urging the Court to recognize same-sex marriage as a constitutional right for the entire nation, the administration endorsed the “eight-state solution” — that is, if a state already recognizes all the privileges and benefits for same-sex couples that married couples have (in reference to the eight states that currently do so through “civil unions,” including California) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

In the DOMA case, the DOJ argued that Section 3 of DOMA must be struck down as a violation of equal protection for same-sex couples.  “Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”  To read the DOJ’s brief in its entirety, go here.

Significantly, there are unique jurisdictional questions presented that may prevent a ruling on the merits from the Supreme Court in either case.  However, the public will not know whether the Court is going to rule on only the jurisdictional questions or also the merits until the rulings are issued.  Oral arguments in the Prop 8 case are set for March 26, 2013 and arguments in the DOMA case are set for the following day, March 27, 2013. The rulings are expected to be issued in late June 2013.

Non-Biological Lesbian Mother’s Parental Rights Upheld

iStock_000021310628_SmallOn Friday, February 22, 2013, the Kansas Supreme Court issued a ruling in Frazier v. Goudschaal, KS S.Ct. No. 103,487, which is significant both in Kansas and nationally.  After considering the matter for over two years, the Kansas Supreme Court addressed an issue that has only been addressed by a few other states.  In particular, the Court recognized the parental rights of a non-biological lesbian mother.

The parties’ relationship, which began in 1995, came to an end in 2008.  During the relationship, the women decided to have children.  The couple had two children, born in 2002 and 2004, utilizing artificial insemination.  Goudschaal was the biological mother of both children.  Before the birth of their first child, and again at the time of the birth of their second child, the women signed a co-parenting agreement.  At that time, a consent for medical authorization and a durable power of attorney for health care decisions were also executed.  Each woman also executed a last will and testament naming the other as the children’s guardian.  In 2008, after the couple split up, Goudschaal attempted to relocate with the children to Texas.  As a result, Frazier filed an action with the Court seeking to divide the couple’s assets equitably and resolve custody and parental responsibility issues.  The lower court divided the couple’s assets, awarded joint custody with residential custody in Goudschaal, granted Frazier parenting time and ordered her to pay child support.  Goudschaal appealed the lower court’s ruling.

The key in this decision was the planning tools utilized by the couple.  The Court cited to specific language in the co-parenting agreement which identified Frazier as a “de facto parent” and specified that her “relationship with the children should be protected and promoted.”

In highlighting the significance of the co-parenting agreement, the Court stated that a “parent should have the right to enter into a co-parenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.”  In addressing the importance of the co-parenting agreement, the Court noted that without the agreement the children would have only one parent under Kansas law, and denying the children an opportunity to have two parents, impinges upon the children’s constitutional rights.  The Court stated that the co-parenting agreement contained “no element of immorality or illegality and did not violate public policy.”   “Consequently, the co-parenting agreement in this case does not violate public policy and is not unenforceable as a matter of law.”

Because the co-parenting agreement was enforceable, the lower court had authority to enter orders addressing child custody, parenting time and child support.  Further, the lower court had authority to equitably divide the parties’ property.

So does this legal argument have any relevance in the State of Colorado?  I believe the answer is that it does.  While Colorado offers additional protections to same-sex families, such as second-parent adoption and recognition of a “psychological parent’s” right to seek parental responsibilities, co-parenting agreements and other family and estate planning tools are still valuable tools.  Not all same-sex couples will, or can, utilize the second-parent adoption process.  For those couples, the non-biological parent is left relying on the “psychological parent” basis for parental responsibilities, which may apply but may also be more costly and time intensive to pursue.  Instead, utilizing planning tools, such as a co-parenting agreement, as well as various powers of attorneys, wills, and guardianship designations is a key way to insure that the rights of the parents and the children are protected both now and in the future.

For more information on the Kansas case, see this Wichita Eagle article and this Huffington Post article.

Further Progress After Don’t Ask, Don’t Tell: Certain Benefits Extended to Gay and Lesbian Servicemembers and Families

The Pentagon announced that it will extend certain benefits to the families of gay and lesbian servicemembers.  In the announcement, Leon Panetta, United States Secretary of Defense, explained that since the repeal of Don’t Ask Don’t Tell, the Pentagon has been reviewing benefits to determine those it could extend to gay and lesbian servicemembers and their families without violating the Defense of Marriage Act.

The new expansion allows servicemembers to designate specific protections to their partners including, but not limited to, life insurance and death gratuity benefits; notification if the service-member is wounded, killed or missing; transportation allowance if the service-member is hospitalized; hospital visitation privileges; presentation of the flag of the United States.  Additionally, once the servicemembers and their partners have signed a Declaration of Domestic Partnership attesting to the existence of their committed relationship, the partners of gay and lesbian service members will have access to commissary privileges; ID cards to get on base; family support initiatives, legal assistance and sexual assault counseling; ability to take emergency leave for family emergencies and joint duty assignment, in addition to other benefits.  The Declaration of Domestic Partnership is similar to the document same-sex families complete for many employers who offer benefits to same-sex families in states where gay marriage or civil unions are not yet legal.

The member designated protections are in immediate effect and the additional benefits offered to the families of gay and lesbian servicemembers will be in place no later than October 1, 2013.  The expansion does not address health care, housing, and survivor benefits due to the restrictions under the Defense of Marriage Act.  However, a memorandum released by Secretary Panetta detailing the benefits offered under the expansion specifically states that if at any time “the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of this Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexual orientation, and married couples, irrespective of their sexual orientation, and their dependents, will be granted full military benefits.”

To review Leon Panetta’s Memorandum detailing the benefits expansion, go here.

To review a good Q&A from OutServe regarding the same, go here.

 

CO Civil Unions Bill Introduced

On Wednesday, January 9, 2013, Senators Pat Steadman and Lucia Guzmán introduced Senate Bill 11 in the Colorado Senate. Senate Bill 11 will allow civil unions for gay and lesbian couples and provide them with many of the same rights married couples enjoy. After being defeated last year in dramatic fashion at the end of the Congressional session, the civil unions bill is expected to pass easily this year through both the House and the Senate and Governor Hickenlooper, a strong supporter of civil unions, has indicated he will sign the bill as soon as it reaches his desk.

To read Senate Bill 11 in its entirety, go here.

2012 Year in Review for LGBT Rights

The LGBT community made great strides in 2012. On November 6, 2012, same-sex marriage came away with victories in all four states in which it was an issue at the ballot box. Ballot initiatives in favor of legalizing same-sex marriage passed in Maine, Maryland and Washington and the proposed ban against same-sex marriage in Minnesota failed. Currently, same-sex marriage is permitted in nine states: Massachusetts (May 17, 2004), Connecticut (Nov. 12, 2008), Iowa (Apr. 24. 2009), Vermont (Sep. 1, 2009), New Hampshire (Jan. 1, 2010), New York (June 24, 2011), Maryland (Nov. 6, 2012), Maine (Nov. 6, 2012), and Washington (Nov. 6, 2012) and also the District of Columbia (Mar. 3, 2010).

Other gains made in the November election came with the candidates themselves. President Barack Obama, the first sitting U.S. president officially in favor of same-sex marriage, was re-elected to a second term. On the Congressional level, Tammy Baldwin (D–Wis.) was elected as the first openly lesbian or gay U.S. Senator and was among a total of six openly gay candidates elected to Congress.

Seven state legislatures gained their first or only openly LGBT state lawmakers this year, including North Dakota, South Dakota, West Virginia, New Mexico, Texas, Pennsylvania and Florida, which went from zero to two gay legislators. Locally, the LGBT community made great strides in Colorado in the November election. Colorado now has eight openly gay and lesbian state lawmakers, a doubling of LGBT representation from the previous session. Additionally, as Democrats again became the majority party in the House of Representatives, they elected Rep. Mark Ferrandino the first openly gay Speaker of the House.

Also in November, the United States Supreme Court granted certiorari review on two cases that directly affect LGBT rights. First, the Supreme Court granted cert in Perry v. Brown, the lawsuit challenging the State of California’s Proposition 8, as passed by voters in 2008 and which rendered gay marriage illegal in California. The federal district court and the Ninth Circuit Court of Appeals previously held that Proposition 8 was unconstitutional. Second, the Supreme Court granted cert in United States v. Windsor, a lesbian widow’s successful lawsuit against the federal Defense of Marriage Act (“DOMA”), which prohibits the recognition of marriages of gay and lesbian couples for purposes of federal law. The Supreme Court has now scheduled oral arguments in the case against California’s Proposition 8 for March 26 and in the DOMA case for March 27.

Finally, 2012 marked the first full year gay and lesbian military members could serve without the threat of “Don’t Ask, Don’t Tell.” According to studies, the repeal of DADT has not had any negative ramifications and troops are as cohesive as the previous year.

2nd Circuit rules Defense of Marriage Act Unconstitutional

Today, the United States Court of Appeals for the Second Circuit joined several other federal courts, including the First Circuit Court of Appeals, in holding that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional.  Specifically, Section 3 states that the word “marriage” means only the legal union between a man and a woman and the word “spouse” refers only to a person of the opposite sex who is a man or a woman.  Based on these definitions, same-sex spouses of federal employees are denied the same treatment of heterosexual spouses, including the application of federal tax laws and spousal benefits.  Additionally, Section 3 allows States to refuse to recognize same-sex marriages performed and recognized in other States.

This case initially arose when Edith Schlain Windsor, an 83-year-old woman whose spouse died in 2009 after more than four decades together, filed a lawsuit two years ago challenging a decision by the Internal Revenue Service that she must pay more than $350,000 in estate taxes. Mrs. Windsor and her spouse were married in Canada and their marriage was recognized by the State of New York, where they resided.  A married, heterosexual couple would not have faced the same tax under federal law that Mrs. Windsor faced.  In today’s ruling the Second Circuit affirmed the lower court’s decision and held that laws classifying people based on sexual orientation, like DOMA, should be subjected to a heightened form of scrutiny when courts examine the government’s claimed reasons for such laws.  The Circuit Court found that “DOMA’s classification of same-sex spouses was not substantially related to an important government interest. …  Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.”

The holding that “intermediate scrutiny” applies makes the Second Circuit the first federal appeals court to do so. The First Circuit did not apply any heightened scrutiny in its earlier decision striking down DOMA.

To read the Second Circuit’s opinion in its entirety, go here.