Recent Developments in LGBT Family Law
Legislation, Pending Cases & State Laws
Below is a list of recent developments in LGBT family law including legislation, pending cases and other items of interest.
St. Mary v. Damon
The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart. Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.
Iowa Supreme Court Ruling on Birth Certificates
A married lesbian couple challenged the Iowa Department of Health for refusing to list the name of the nonbiological mother on their child’s birth certificate. On May 3, the Iowa Supreme Court ruled that the Department of Health was incorrect and that both mothers should be listed on the birth certificate. While on the surface, the ruling may seem like a victory for same-sex parents, it actually warrants a much more complex analysis. The litigation relies entirely on whether or not the same-sex partners are legally married, creating problems when it comes to rights in other states and for children of unmarried couples. While some of the Supreme Court’s ruling can be considered a victory, it certainly demands a closer examination.
Financial Aid Changes for Children of Unmarried Couples
The Department of Education has recently changed the way it will calculate income for college financial aid decisions. Currently, if a child has two parents who live together, but are not married, the financial aid application (FAFSA) only counts the income of one parent. In the future, FAFSA will take into account the income of both parents of a child if they live together, even if they are not married. This change will certainly affect same-sex couples whose relationships are not recognized, but will also have an impact on heterosexual couples who are simply not married.
Relationship Recognition in New Mexico
City of Santa Fe Mayor Coss and Councilor Bushee announced that they are sponsoring an official resolution that will recognize the legality of same-sex marriages in New Mexico and will encourage New Mexico’s county clerks to issue marriage licenses to same-sex couples. The resolution is supported by research conducted by City of Santa Fe attorney, Geno Zamora, who found that New Mexico’s legal definition regarding marriage is gender-neutral, same-sex couples are not listed in the state statute as being prohibited from marrying and New Mexico law recognizes same-sex couples married in other states. Additionally, given that the New Mexico Constitution mandates equality regardless of sex, discrimination against same-sex couples is unconstitutional.
Update on LGBT Family Law in the Washington Metropolitan Area
The last several years have seen an incredible change in laws affecting LGBT families in the Washington metropolitan area, and we may see more changes on the federal level in the next several months.
Frazier v. Goudschaal
Two individuals in a long term relationship had two children by artificial insemination. The couple executed a coparenting agreement in conjunction with the birth of each child. After the couple separated, Goudschall gradually reduced Frazier’s time with the children and attempted to take them to Texas. Frazier took legal action and on February 22, 2013, the Kansas Supreme Court ruled that the children born through donor insemination to a lesbian couple are the children of both parents. The court stated that same-sex couples have the same rights as parents and equal legal rights to custody. The court also held that the children of same-sex parents have the same right as any other kids to have two parents.
- Read the full opinion
- Read Professor Nancy Polikoff’s blog entry on the case
- Read Professor Julie Shapiro’s three blog entries on the case below:
Himmelberger v. Department of Revenue
This recent Pennsylvania Commonwealth Court decision found that “a New Jersey civil union is the equivalent of a marriage.” In 1996, Pennsylvania enacted a statute, 23 Pa.C.S. §1704, declaring that marriages between persons of the same sex, even if valid where entered into, are void in the Commonwealth of Pennsylvania. Since this statute did not speak to civil unions, trial courts had used the legislature’s silence on civil unions as grounds to allow trial court judges to dissolve civil unions. See e.g. Mangano v. Weigl, January Term 2009, No. 2736, Philadelphia County, September 23, 2009. Now that a court has found that “§1704 clearly applies to civil unions”, one Pennsylvania trial court that previously granted civil union dissolutions has ruled that Pennsylvania courts can no longer terminate civil unions from other states.
Illinois’ Position on Birth Certificate Listings
Until recently, the Illinois Department of Public Health (IDPH) took the position that a same sex second parent could not be listed on a birth certificate of their child born through surrogacy unless that same sex second parent obtained a second or step-parent adoption. In fact, they denied same sex intended parents the right to be placed on the birth certificate unless they proved they were married or in a civil union (despite the fact that under the Illinois Gestational Surrogacy Act (IL-GSA), which was written in a gender neutral fashion, heterosexual married couples did not have to prove-up their marriage, unmarried heterosexual couples were also allowed on the birth certificates, and the IL-GSA never required that intended parents be married). Rather than facing court action, on November 15, 2012, IDPH issued a new policy stating: “The genders of the “intended parents” will no longer be a meaningful distinction, per the Gestational Surrogacy Act. Therefore, from this point forward, all same-sex “intended” parents that are not married nor in a civil union, will be recorded on the birth record, in the same manner that you currently record opposite-sex “intended” parents. Effective immediately, all birthing hospitals shall begin to place the names of both the biologic and the non-biologic (non-genetic) same sex “intended” parents on the birth record of the child, provided that all requirements of the Gestational Surrogacy Act are met.”
Hunter v. Rose
The Massachusetts Supreme Judicial Court (SJC) affirmed a trial court ruling on all three major points. First, the SJC held that a California Registered Domestic Partnership, under comity principles, is a legal spousal relationship due recognition and respect in Massachusetts and that children born within an RDP are the children of both parents. Second, the SJC affirmed the trial court determination that it was in the children’s best interests to be in the primary custody of the non-biological mother. Third, the SJC upheld the trial court award of $180,000 in attorney’s fees to the non-biological mother who was assigned the laboring oar in the litigation due to the obstructionist tactics by the biological mother and her attorney.
Maxwell v. Maxwell
The Kentucky Court of Appeals ruled that the trial court erred by previously changing custody of three children from their mother, Angela Maxwell, to their father, Robert Maxwell, based on the mother’s same-sex relationship. The appeals court held that the custody change was not based on the best interests of the children, who were thriving, and that the decision violated the Equal Protection and Due Process clauses. The court also said that fears of private discrimination and teasing could not be the basis for a change in custody.
Windsor v. United States
Edith Windsor was ordered to pay over $300,000 in estate taxes after her partner of 42 years, Thea Spyer, died in 2009. Since the Defense of Marriage Act (DOMA) defined marriage as solely between one man and one woman, Windor and Spyer’s relationship was not recognized on the federal level. On October 18, the Second Circuit Court of Appeals ruled in favor of Ms. Windsor, declaring DOMA unconstitutional because it violates the Equal Protection clause.