Exactly right Deb, and this is why I continue to advise same sex clients that a second parent adoption is extremely important, regardless of the recent SCOTUS marriage decision. I have 2 such adoption hearings scheduled for next week and have reminded these couples of the continuing need for such adoptions.
------------------------------
Leslie Farber Esq.
Montclair NJ
(973)509-8500
------------------------------
Original Message:
Sent: 07-02-2015 08:45
From: Debra Guston
Subject: Marriage Equality and Parentage
Rachel,
I hesitate to get into a big debate with you, because I think your stated views are more parochial than national and your citing of Wikipedia for the Miller-Jenkins case is limited. If you want to take a chance that bio mom will always live in NJ, always love the other parent and never leave - fine. But...
First, as a member of the LGBT Family Law Institute and the National Center for Lesbian Rights' National Family Law Advisory Council, I can assure you that a second parent adoption or parentage judgment is the nationally recognized best practice for LGBT families. Until all states have updated their parentage laws to be gender neutral on marital presumptions and to encompass parentage determinations in surrogacy cases where children are born into LGBT families via surrogacy, this will remain the best practice.
Second, what you fail to see, I think, in your reference to Miller-Jenkins, is that although the non-gestational mother eventually prevailed, she had to litigate in VT and in VA over almost a decade - giving the birth mother time and opportunity to flee to another country - beyond the reach of our extradition laws, to estrange the child from the non-gestational mom and to cost her and national LGBT legal organizations hundreds of thousands of dollars of legal fees and costs. All for nothing but a hollow legal victory. Sure, the non-gestational mom was a presumed parent under VT's parentage act - if you read that statute in a gender neutral fashion - but for what?
Third, I am happy to introduce you to my colleagues at NCLR, to Deborah Wald (CA), Joyce Kauffman (MA), Lynn Perl (NM), etc. etc. who have all litigated substantial and heart breaking cases of these types where an adoption would have prevented the heart break.
Fourth, you fail to cite the Oklahoma federal case and the Florida state case and Adar vs. Smith, the US Supreme Court case that all hold that an adoption judgment is entitled to full faith and credit - but in the case of Adar, tells the states they do not have to act on that judgment to issue new birth certificates representing the legal parentage. The FFC decisions mean that lengthy litigation should NEVER be needed to establish a right to parenting time or custody ANYWHERE.
Fifth, the Alliance Defense Fund - on the the largest anti-LGBT legal organizations in the country - has litigated these cases all over the place. They throw tens of thousands of dollars at cases. One of their most recent strategies has been to advise bio mom to move to a hostile state, establish UCCJEA jurisdiction there while allowing substantial contact with the other parent and then once the 6 months is over - cut off ties. They are vicious in their views, but never succeed to void adoption judgments - another of their favored causes of action.
Sixth, you also fail to recognize that not all states, including our neighbor, NY, do not recognize de-facto or psychological parentage - hence a parent can simply move over the NY State border, establish UCCJEA jurisdiction and boom - nothing for the other parent.
Finally, you continue to conflate the ability to remove a sperm donor as a legal parent under current NJ parentage laws, with the establishment of legal parentage for the bio mom's wife or partner. Remember, too, that not all lesbian couples have the financial ability to use a donor bank and medical doctor for AI. This is a class issue as well as an LGBT issue. And, many states, including our neighbor PA have NO parentage act - their only statutory law on parentage is the procedure for a putative father to bring a paternity action.
I hate to preach on this, but I am so passionate about lawyers not becoming too academic when dealing with their clients' and their children's lives. Best practices have been thought out and developed for a whole host of real, practical reasons. The more we try to say the world is a better place than it was a decade ago; we now have marriage equality, etc., the more risks we take by failing to look at LGBT parents as being in continued jeopardy. They are NOT exactly like different sex parents who are both the biological parents of a child and we should delude ourselves into thinking that is so, just because we wish it so.
------------------------------
Debra Guston Esq.
Glen Rock NJ
(201)447-6660
------------------------------
Original Message:
Sent: 07-02-2015 00:10
From: Rachel Cotrino
Subject: Marriage Equality and Parentage
Deb,
Can you show me one example where the non-bio parent was not recognized as a parent, for purposes of establishing custody, by a New Jersey Court, with the following facts:
-a lesbian married (or civil unioned) couple in NJ,
-who conceived through artificial insemination with an anonymous donor during the marriage or civil union,
-and where both parties were listed on the NJ birth certificate.
Second question, can you give me one example where another state rejected an NJ birth certificate?
Third question, did the VT court custody order really help the non-bio parent in Miller v. Jenkins at the trial level? Do you really think the outcome would have been different if it was an adoption order particularly since the trial court ignored the VT custody order?
https://en.m.wikipedia.org/wiki/Miller_v._Jenkins
Final question, if a prejudiced judge at the trial court level in Alabama, Tennessee, or Texas (states that do not allow gay adoptions) got ahold of the gay NJ adoption order, can you say with certainty that they would recognize it anymore than a birth certificate or a court order for custody? Can you give me an example where a judge or official said yes to adoption orders involving a same sex couple but no to a state issued birth certificate?
I'm sorry if I sound jaded, but I am. The bottom line is if someone runs off with your kid to a non-"friendly" state, and the above salient facts apply, the appropriate legal advice is to file an OTSC in New Jersey, like a biological parent would, and obtain a court order for custody. To deal with abduction cases, we have laws like the UCCJAEA and child kidnapping laws.
I think some out of state courts don't give a lick about court orders granting custodial rights to gay parents. I fail to see how a gay adoption order would be treated any less differently by those courts.
------------------------------
Rachel Cotrino Esq.
Jackson NJ
(732)987-9966
------------------------------
Original Message:
Sent: 06-30-2015 11:17
From: Debra Guston
Subject: Marriage Equality and Parentage
Rachel, with all respect, this is what I am concerned about - the NJ Parentage Act relates ONLY to married different sex people on its face - the husband of a married woman is presumed to be the parent of a child born to his wife. A rebuttable presumption.
You would be asking a foreign, potentially hostile state to recognize via full and faith and credit alone a NJ statute that does not speak to the actual parties. Full faith and credit does not extend on a mandatory basis when the state being asked to recognize the judgements, acts and laws of the sister state conflict with its own public policy. Marriage equality DOES NOT mean all discrimination against same-sex parents has been eliminated and it remains to be seen whether states that refuse to perform second parent adoptions would ever recognize a two parent unit where the only "proof" is reliance on the NJ parentage act and an interpretation that has not been made by any court.
You are very correct about the removal of claims of sperm donors as legal fathers to children born to married lesbian couples when the AI statute is adhered to, but you are not correct that the AI statute in any manner solidifies the parental rights of the non-gestational mother.
I urge people to NOT conflate the issue of terminating a sperm donor's parental rights with creating rights for the non-gestational mother. Two very different things - I cannot think of a scenario where I would not recommend a second-parent adoption. Just because there is no father does not mean there is a second mother.
------------------------------
Debra Guston Esq.
Glen Rock NJ
(201)447-6660
------------------------------
Original Message:
Sent: 06-30-2015 10:48
From: Rachel Cotrino
Subject: Marriage Equality and Parentage
Deb,
I believe that the decision to do a second parent adoption should be reviewed on a case by case basis together with the longterm planning goals of the family.
In some cases, it may be unnecessary for certain same sex couples to do a second parent adoption.
For example, under the New Jersey Artificial Insemination Statute (N.J. Stat. Ann. §9:17-44(a)), a child conceived through artificial insemination and born to a married couple should have the certainty of parentage to the non-biological parent. Some clients may use certain fertility procedures, while married, which qualify them under the State statute and guarantee the non-biological parent parentage. In those cases, those clients may not necessarily need to do a second parent adoption.
------------------------------
Rachel Cotrino Esq.
Jackson NJ
(732)987-9966
------------------------------
Original Message:
Sent: 06-29-2015 15:44
From: Debra Guston
Subject: Marriage Equality and Parentage
Good day, all. As you might imagine, I have been fielding tremendous numbers of questions about the need for second parent or confirmatory adoptions in the wake of the historic decision on Friday. The answer remains the same as it was on Thursday - the marital presumption of parentage is based, in NJ and all other states, on a "traditional" and presumptively biological model of husband/wife parents. Some states have no statutory marital presumptions because they have not enacted a parentage act.
Unless and until all 50 states update their parentage statutes to acknowledge that a marital presumption IS GENDER NEUTRAL, second parent or confirmatory adoptions are necessary to protect the child's relationship to the non-biological or non-gestational parent. In my view, recommending any other position is malpractice, as it fails to comprehend the hostility that will continue to exist post-Obergefell.
Marriage equality does not yet mean equal - miles to go....
Deb
------------------------------
Debra Guston Esq.
Glen Rock NJ
(201)447-6660
------------------------------