Second Parent Adoptions in the Gay Community
Christine J. Klein, Esq.
Recently, I received a telephone call from a woman asking for help because she thought she might lose her child. She and her partner were breaking up and she had never adopted the child they had conceived and raised together. I then had to deliver the heartbreaking news that she was absolutely correct. She was going to lose her daughter and there was nothing I could do to help. As the non-biological parent, she had no right to the child she had raised since its birth, not even visitation rights.
I wish I could say this is the first time this has happened, but it is a devastating reality in our community and it happens far too often. Under the current law in the State of New York, a second parent, who does not adopt, has no legal rights. If a couple breaks up, the biological parent will have sole custody and the non-biological parent has no standing to seek either custody or visitation. If the biological parent dies without a will, his or her family can be given custody of the child. Moreover, a known sperm donor or surrogate could also seek custody of the child. Without an adoption to terminate their parental rights, surrogates and donors have the right to seek custody and visitation, regardless of any contract you may have with them.
But this can be prevented. A second-parent adoption can protect your family and should be part of a family plan, right from the start. An adoption will give the non-biological parent all the rights and responsibilities of any other parent. If the couple breaks up, custody and child support issues will be determined by the same rules that apply to all parents. If one partner dies, the other parent will retain custody of the child(ren). As part of the adoption process, the donor or surrogate signs their consent and surrenders any legal rights.
Many delay adopting, because they believe that they will never break up. But breakups do happen and to couples we never thought it would. Another reason people put it off is because they think that a will, leaving custody to the non-biological parent is enough protection if their partner dies. But a will could be challenged later or a technical defect might prevent the Court from probating the will. The Court will then determine what is in the "best interest" of the child. Do you want to leave your rights as a parent to the judgment of a judge?
It is easy to protect yourself and your family. A second-parent adoption is a simple process by which your attorney will prepare and submit the necessary documentation to the court. After a brief home study, and approximately four to six months later, you will appear in court and the judge will, in most cases, sign the Order granting the adoption. Both parents will now enjoy the benefits and share the legal and financial responsibilities of parenthood. You will have protected yourself, your partner and your children.
Christine J. Klein has been practicing law in the New York area for more than 12 years. She has a general family law practice, focusing on issues which affect the LGBT community, including adoption, reproductive law, child custody, dissolution of marriage and civil unions, cohabitation agreements and more.
Estate Planning for the LGBT Community
Christine J. Klein, Esq.
Estate planning is important for all couples and singles, regardless of sexuality or gender identity. But for members of the LGBT community, it can be absolutely critical.
LGBT families need to be protected, even more than heterosexual families, simply because we do not have the same automatic safeguards that other married couples do in this country. What is more, many members of the LGBT community are estranged from their families. Because our family structure is often "non-traditional," we need to take extra care to be certain that the people we love are provided for when we are gone.
Do you know who will inherit your property when you die? Who will care for your children? And who will make decisions for you if you are unable to do so for yourself? If you do not know the answers to these questions, you may not be prepared.
If you do not have a health care proxy or you die without a will, the law is going to look to your "next of kin." You might think of that as your partner or even your dearest friend, but the courts probably may not. Instead, your property could go to your parents or siblings and they will make the decisions on your health care as well. Your partner might be excluded completely. The child you raised, but never adopted, could be left with nothing. The parent who evicted you when they found out you were gay may make your health care decisions when you no longer can.
But there are ways to protect yourself and your family. There are legal documents we can use to make sure that the people you want to make the decisions and receive your property are the ones who actually do. The most common tools we use are wills, trusts, health care proxies, living wills and powers of attorney.
Last Will and Testament – It is through your will that you can leave your property to those you care about in the proportions you wish. Your will can also appoint a guardian for your minor children, as well as a guardian for the assets they may inherit from you.
Trusts – A trust is a document that contains the rules on how, what, when and where a gift will be distributed to heirs and beneficiaries. Common objectives of trusts are to protect property, save estate taxes and avoid probate.
Health Care Proxy – This document will allow you to appoint someone to make health care decisions for you when you are not able.
Living Will – A living will is a legal document wherein you can state today, while you are still competent, your wishes for your future health care.
Durable Power of Attorney – This document will allow someone to manage your property and make legal decisions for you when you are no longer able to do so.
No two estates are exactly the same. Finding the right combination of these and other legal documents to protect your family will be a collaboration between you and your attorney. But if you plan carefully, you can ensure that you and your loved ones are protected and provided for.
Christine J. Klein has been practicing law in the New York area for more than 14 years. She has a general family practice, focusing on issues which affect the LGBT community, including estate planning, wills, advance directives, adoption, reproductive law, child custody, dissolution of marriage and civil unions, cohabitation agreements, real estate, personal injury and more.
Where Do We Stand Now?
A Look at Recent Changes in the Law Affecting the LGBT Community
by Christine J. Klein, Esq.
In 2011, we saw a lot of change in the laws affecting the LGBT community including the legalization of same sex marriage in New York and the repeal "Don't Ask. Don't Tell." So now we ask, "What has changed? What steps must LGBT men and women take, in order to protect themselves and their families? And where do we stand now?"
Although much has changed, so much has remained the same. Without the repeal of DOMA (the Defense of Marriage Act), federal law does not allow our community many of the benefits heterosexual couples still enjoy. Until that law is repealed, the LGBT community will need to take extra steps to ensure that their families are protected and cared for.
It is clear under New York law, that if an LGBT individual dies without a will, his/her husband or wife is entitled to inherit under the estate. They would have the same rights as any other spouse. But those rights do not necessarily go beyond New York. For instance, New York would not assess any estate tax on the inheritance, but the federal government might, depending on the size of the estate. Moreover, property held outside the state of New York, in a less gay-friendly jurisdiction (such as a summer home or condo Florida or Pennsylvania), may not fall under the same rule.
Similarly, New York hospitals recognize a same sex-spouse as the next of kin, with rights to make health care decisions and visit the spouse in a New York hospital. But when you leave the state of New York those same rights may not exist. Other states do not have to recognize gay marriages and it is possible that the spouse could be completely excluded. For these reasons, we continue to draft wills, health care proxies and other legal documents to protect same-sex couples.
Another example of disparity can be found in the continued need for stepparent adoptions. In New York a child born to a married woman, through artificial insemination with the knowledge and consent of her husband, is deemed a child of the husband. Legal adoption is not necessary. While we expect New York to apply this same law to lesbian couples, other states do not have to follow suit. Other states may not honor birth certificates as proof of parentage for the non-biological mother. They do, however, have to honor an Order of Adoption.
These laws affect not only couples who relocate, but also those who choose to travel outside of the state. You may want to take the kids to Disney or travel with your partner to Key West or simply take a ride out to the Poconos for a weekend. In any of these places, your rights and those of your family members simply are not the same. And if you leave the country, the complications can be even greater. As such, it is critical to complete a step stepparent adoption, even if you are legally married. Make sure your health care proxies, wills, and other legal documents are up to date.
That the fight for equality is far from over can further be seen in the military applications of "Don't Ask. Don't Tell." I was recently invited to address the legal implications of the repeal of "Don't Ask. Don't Tell," as part of a panel at Rockland Community College. I was joined on the panel by an Army recruiter and a former member of the military.
We cannot diminish for one second the value of being able to openly serve, and being honest with oneself and others about one's own identity and the identity of those we love. For those in the military to be able to serve their country, without fear of being "found out," is an incredible step forward.
Nevertheless, the glaring limitations of rights for same-sex couples in the military cannot be ignored. Even if married in a state where it is legal, such as New York or Connecticut, the military will not and cannot recognize the service member's spouse in the same way they would a heterosexual spouse. An LGBT soldier's spouse is not eligible for medical benefits, death benefits or any other military benefit. They might be allowed to shop at the PX, but they would not be eligible for family housing. A gay soldier's stepchild is not eligible for medical benefits and military scholarships. While strides have been made, equality still eludes our grasp.
What we take away from all of this is that while we made tremendous progress in 2011, there is still so far to go. We've moved toward equality, but the fight is far from complete. Protect yourself and your loved ones in the interim. Make sure you have an up-to-date will and health care proxy. Make sure you complete that step or second-parent adoption. Continue to support the groups that fight for equality for the LGBT community.
Christine J. Klein has been practicing law in the New York area for 15 years. She has a general family law practice, focusing on issues which affect the LGBT community, including adoption, reproductive law, child custody, dissolution of marriage and civil unions, prenuptial agreements, estate planning, and personal injury.
Law Offices of Christine J. Klein
245 Saw Mill River Road, Suite 106
Hawthorne, NY 10532