Bar News - November 18, 2015
Family Law: 10 Tips for Family Law Practitioners Advising Same-Sex Parents
By: Catherine Tucker
With recent court rulings and statutory changes, same-sex parentage law is rapidly evolving and still largely unsettled, leaving family law attorneys without firm guidance when advising clients in family-building and divorce/parenting matters. Against this uncertain backdrop, a few firm principles have evolved to assist lawyers working with same-sex couples:
- Parentage is the next legal battleground.
Opponents have largely accepted that the legal battle regarding same-sex marriage is over. The battleground now has shifted to the rights and benefits flowing from marriage. And parental status is at the forefront of the attack.
- It’s not just about New Hampshire law.
Practitioners must be prepared to advise clients not just about the respect afforded to their family relationships in New Hampshire, but also across the country and beyond.
The reality is that the legal status of a parent-child relationship can change when the family crosses into another state or country, which has the potential to complicate even a simple family vacation. For example, will the parent-child relationship arising from the marital presumption be respected by a Catholic hospital in Ohio?
Similar complexities can arise when cross-border inheritance issues must be resolved – will a New Hampshire-born child inherit under his non-biological grandmother’s Oklahoma will, which leaves her estate to her “natural and adopted grandchildren”?
Choice-of-law problems also remain unresolved (even with the Uniform Interstate Family Support Act). To further complicate things, the federal analysis has its own twists and turns. Many attorneys mistakenly think that the feds now treat same-sex and opposite-sex couples the same, but this is not always the case. For example, the application of immigration and citizenship rules can differ.
- The marital presumption remains important.
Female spouses are both automatically treated as legal parents of a child born in New Hampshire to either one of them. A non-biological mother can thus expect to have her name placed on the child’s birth certificate. While this is a critical component of same-sex family-building, the marital presumption is rebuttable, bringing with it the risk of attack of parental status.
This is a particular risk when the sperm donor is known to the mothers; such challenges often come up in the midst of contentious divorces. As a corollary, divorce clients should be informed that the lack of a spouse’s name on the birth certificate does not bar that spouse from being declared a legal parent even without an adoption. And, of course, we don’t know to what degree the New Hampshire marital presumption applies to children not born in New Hampshire.
- Are your clients really married, anyway?
Given the convoluted history of civil unions, domestic partnerships, and same-sex marriage, a surprisingly large number of same-sex couples are in void or voidable marriages. Understanding the history of your client’s marriage is important in evaluating whether a marital presumption applies. Although New Hampshire law makes explicit provisions for invalid marriages, it’s unclear how much protection these laws afford to children born outside the state.
- Marriage is not everything.
Even unmarried parents have avenues to establish legal parental status. Unmarried couples planning families should be advised of their various legal options to firm up the legal relationship between the non-biological parent and the child – these options can include utilizing the laws of other states when appropriate. Parenting clients need to understand that even an unmarried partner whose name is not listed on the child’s birth certificate may be able to establish legal status as a parent even without an adoption.
- Biology is not all that important.
With recent clarification of New Hampshire donor and parentage laws, it is clear that a DNA test is just not the best way to determine the legal parent of a child conceived through assisted reproduction. Biology can be important, but establishing legal parenthood without a biological (or adoptive) connection is possible, too, and clients often do not know about this.
- Ask, ask, ask.
Don’t make assumptions about how and where your clients formed their families. As uncomfortable as it might be, it’s critical to ask probing questions. The legal analysis will be different for a child conceived in California using at-home insemination with a known sperm donor than for a child conceived in New Hampshire using in vitro fertilization (IVF) with an anonymous sperm donor. And yet a different legal analysis will apply to a child conceived with the assistance of a midwife in Kansas.
When working with clients who are planning their families, attorneys should advise of the legal risks involved with straying from the most conservative course of action (assisted reproduction performed by a licensed physician using sperm obtained through a cryobank from a completely anonymous donor).
- “Donor” may not mean what you expect.
Similarly, when clients state that they used a “donor,” it’s important to get details. One client may mean that she purchased sperm from an accredited sperm bank, while another client may mean that she had sex with a male friend. This kind of information is important not only to a determination of legal parentage, but also to accurately answer Uniform Child Custody Jurisdiction and Enforcement (UCCJEA) questions, as there may be a third person, such as a purported donor, who claims to have parenting rights.
- Adoption remains the strongest legal protection available for (most) same-sex parents.
For most same-sex parents, an adoption remains important as it is a recognized way to establish (or affirm) the legal status of a parent-child relationship. Lawyers should always consider whether a known sperm donor should be involved in the adoption process. If the decision is made to involve the donor, consider whether a formal surrender of his rights or whether only notification of the opportunity to request a hearing to prove paternity is the right choice for the factual circumstances of your case.
- But adoption is not always the answer.
There are a few situations where an adoption may actually be ill-advised as it offers lesser protection than the existing relationship, which can be based either on legal principles or biology.
Post-nuptial agreements or other alternatives may provide more appropriate protections for some of these clients. Lawyers should be particularly mindful of this when working with same-sex clients where both of them, or neither of them, have a biological connection to the child. And even when adoption is the recommend legal avenue, it may not provide a solution to all problems – such as addressing legal rights that accrue solely by biology.
Catherine Tucker is a solo practitioner in Loudon, NH, with a practice focused on assisted reproduction, including sperm and egg donation and surrogacy. She is a member of the American Academy of Assisted Reproductive Technology Attorneys and Chair-Elect of the Legal Professional Group of the American Society for Reproductive Medicine.