Archive for the ‘adoption’ Category

When Judge’s Get it Wrong When Endeavoring to Get it Right. Second-parent adoption blog part 2

February 3, 2014 | By: Elizabeth

I promised a more human blog on this new case from Brooklyn.  Here goes:

 

By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of the Defense of Marriage Act (DOMA), and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage.  One important fact about Windsor that many people have overlooked is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states.  Thus while the Federal Government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York.  Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.

Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages).  The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis.  And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point:  Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane.  Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack.  Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born.  Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate.  New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate.  This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality.  However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan in a state which doesn’t respect marriage equality.  In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.

Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama).  The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state  in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane.   This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and this recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head.  Many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.

As noted, notwithstanding Windsor, Section 2 of DOMA is still valid law, and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate.  Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent.  Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera.  The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).

However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born.  Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage.  This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical.  You guessed it, an Order of Adoption stemming from a second-parent adoption.

Why did the Judge decide this?  Well in part because she’s right.  Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized.  Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family.  They are a family.  Period.  Nothing more need be said.  Valid marriage + valid birth certificate = family regardless of your sexual orientation.   That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents.  However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above.  In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York.  While I applaud this Judge for upholding the laws of the State of New York, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law will always protect this couple and their child.  The laws of the State of New York do not protect this family everywhere they may travel.

For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names).  The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates are sufficiently strong to carry Jan safely into other jurisdictions.  This is a legal argument called “portability”.  Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.

In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009), is another case that explores the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic or non-gestational parent’s rights in jurisdictions which do not recognize same-sex marriage.  Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and of Jane’s and Jan’s rights as parents.  The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage.  Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.

“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both [Jane and Jan], arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of [Jan]’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize [Jan] as Sebastian’s legal parent.  Sebastian at page 573.

The Court in Seb C-M, however, felt that the presumptions afforded birth certificates are some of the “strongest and most persuasive [presumptions] known to the law.”  Seb C-M at page 2. However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions.  Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption:  In a detailed analysis, the Court in Sebastian noted that “[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of [Jan]’s parentage would provide insufficient protection of [Jan]’s parental rights.”  Sebastian at page 576 (emphasis added).  The Court in Sebastian further explained that, under Section 2 of DOMA, a marriage contracted in New York does not need to be recognized in another state, and the legal rights flowing from that marriage, and the presumptions of parenthood from birth certificates may be ignored as well.

If this is our world, how then do same-sex couples protect their parental rights outside of New York?  The Court in Sebastian was clear that “A holding by this court that [Jan] is already a legal parent . . .  in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . .  adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.”  Sebastian at pages 575-76 (emphasis added).  

“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition . . . .”

Sebastian at page 584.

The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit.  Sebastian at page 587.

“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both [Jane] and [Jan] as his legal parents throughout the entire United States.”

Sebastian at page 587.

So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York.  This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA.  The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized.  The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion).   Rather than  upholding the protective approach as set forth in Sebastian, In the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.

While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions.  New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community.  While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.

The Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, however, the ultimate outcome of the decision is to deny protections to same-sex families which are enforceable in places other than the State of New York.  Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M?  And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?

Filed under: adoption, Birth Certificates, Check This Out, In the News, infertility in the media, Parentage Orders, Personal Musings, Same Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction

When Judge’s get it wrong when endeavoring to make it right. Second-parent adoption proceedings in New York after U.S. v. Windsor and In the Matter of Seb C-M.

January 31, 2014 | By: Elizabeth

Disclaimer:  The following blog post is of a rather technical nature insofar as it is an analysis of recent legal decisions impacting second-parent adoptions and the rights of same-sex parents in New York State.  While I will strive to make legal quotes as easy to read as possible (I will not be following strict legal citation formatting) it has occurred to me that some people might like me to translate this blog into plain English.  Accordingly, once this post is up I will create a second post which strips this blog down into simpler, more understandable terms for those people who didn’t make the mistake of going to law school and having their brains completely and utterly corrupted.  So, if you understand the following blog, more power to you but if you don’t (I’m not sure I do and I wrote it), fear not, I will post a follow-up written from that part of my brain that speaks to human beings and not lawyers.  😉  I also apologize for the length of this blog.  This wasn’t an easy argument to lay out and perhaps a blog isn’t the best means of getting my thoughts “out there” . . . but I needed to reason through this new case and I needed to do it in a public forum because I am concerned about the ramifications of this decision.

By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of DOMA, and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage.  One important fact about Windsor that many people have overlooked — although lawyers took note — is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states.  Thus while the federal government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York.  Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.  Even in the tremendous wake of Windsor, as nothing changed on this point — recognition of same-sex marriages in states unfriendly to principles of marriage equality — lawyers did not alter the advice they offered to clients who are in same-sex marriages especially with respect to those issues related to recognition of their rights as parents.   At least I didn’t change my recommendations and last time I checked I still had that dubious distinction of being a lawyer and one who practices in the field of third-party assisted reproduction and adoption law.  

Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages).  The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis.  And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point:  Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane.  Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack.  Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born.  Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate.  New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate.  This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality.  However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan if they get into a car accident in a state which doesn’t respect marriage equality.  In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.  Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama).  The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state  in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane.   This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and a recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head.  And many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.

As noted, notwithstanding Windsor, a decision which has marked a rapid and wonderful shift toward recognition of marriage equality, Section 2 of DOMA is still valid law (and likely to remain so due to issues related to federalism, a concept which far exceeds the scope of this blog), and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate.  This is true in our little soap opera, and a state could rely on this provision of DOMA to refuse to recognize Jan’s parental rights.  Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent.  Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere — even in the face of section 2 of DOMA — and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera.  The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).

However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born.  Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage.  This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical.

Why did the Judge decide this?  Well in part because she’s right.  Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized.  Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family.  They are a family.  Period.  Nothing more need be said.  Valid marriage + valid birth certificate = family regardless of your sexual orientation.   That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents.  However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above.  In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York.  While I applaud this Judge for upholding the laws of the State of New York and recognizing that Jan is a parent from day-one regardless of the fact that she has no genetic connection to Jack, and regardless of the fact that she is in a same-sex marriage, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law is sufficient in all circumstances to protect this couple and their child.  Simply said, the laws of the State of New York do not protect this family everywhere they may travel and second-parent adoptions have historically been identified as a means by which a parent in a same-sex marriage can protect and enforce their parent-child relationship outside of the State of New York.

For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names).  The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates as codified in New York statutes and set forth in case law, are sufficiently strong to carry Jan safely into other jurisdictions.  This is a legal argument called “portability”.  Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.  To quote another groundbreaking case from New York, In re Sebastian, a case which pre-dates Seb C-M, the Judge in Seb C-M, ironically like other judges before her, “apparently was not concerned with issues of portability.”  In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009)(citations omitted).

Sebastian is another case that explores in detail the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic parent’s rights in jurisdictions which do not recognize same-sex marriage.  Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and indeed, of Jane’s and Jan’s rights as parents.  The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage.  Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.  Here is what the Court said in Sebastian (in Sebastian, Mona stands in the same shoes as does Jan in our soap opera, and Ingrid is Jane):

“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both Ingrid and Mona, arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of Mona’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize Mona as Sebastian’s legal parent.”

Sebastian at page 573.

Analyzing DOMA and presumptions of parenthood afforded by birth certificates and thus their portability among states, the Court in Sebastian further noted that:

“[A] marriage validly contracted in another state need not be accorded recognition if that marriage runs afoul of the forum state’s public policy. Currently there are explicit prohibitions against same-sex marriages in [many] states . . . these clear legislative statements of public policy would appear to permit courts of those states to deny recognition of same-sex marriages contracted elsewhere, and, arguably, also to legal rights flowing from those marriages, including presumptive parenthood. . . . Such a position is supported by DOMA, a 1996 Congressional enactment that . . . appears to allow the states to deny recognition of same-sex marriages validly contracted elsewhere. . . .  A holding by this court that Mona is already a legal parent . . .  in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . .  adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.”

Sebastian at pages 575-76 (emphasis added).

 

Another of the arguments on which the Court in Seb C-M relied in denying the second parent adoption is the strong presumption of parenthood New York laws afford to a child born during a marriage as reflected on a birth certificate.  The Court cited this as one of the “strongest and most persuasive [presumptions] known to the law.”  Seb C-M at page 2.  However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions.  Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption:  According to Sebastian:

“[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of Mona’s parentage would provide insufficient protection of Mona’s parental rights.”

Sebastian at page 576 (emphasis added).

If the New York birth certificate potentially is  insufficient to recognize or enforce Jan’s parental rights, what is she to do in order to ensure her relationship to little Jack is protected in our soap opera, or in the event Jane and Jan were to move?  Sebastian addressed this concern noting that:

“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition  . . .”

Sebastian at page 584.

The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit.  Sebastian at page 587.

“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.”

Sebastian at page 587.

So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York, that fails to make her child’s birth certificate “portable” and her legal parent-child relationship firmly established in the eyes of the law throughout the United States.  This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA.  The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized.  The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion).   Rather than  upholding the protective approach as set forth in Sebastian, In the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.

While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions.  New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community.  While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.  In the Matter of Seb C-M applies a misinterpretation of the decision in Windsor  (or seemingly fails to acknowledge that Section 2 of Doma was not overturned), and fails to recognize the significant limitations that remain embodied in Section 2 of DOMA relative to the existing framework of the rights of same-sex parents.  Even more, the Judge’s statement in Seb C-M that any state which fails to recognize same-sex marriages and families is equally likely to deny full faith and credit to adoption decrees from New York, overlooks the detailed analysis of these issues as set forth in Sebastian and an existing body of enforceable case law regarding the application of Full Faith and Credit to Orders of Adoption.

The question is whether these misinterpretations and overlooked or misapplied body of case law will result in an appeal of the decision in Seb C-M?  In endeavoring to recognize the advancements of the rights of same-sex parents in New York, this case has fallen short of protecting those rights, especially in light of the provisions of DOMA which remain intact even after the Windsor decision.  While the Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, the ultimate outcome of the decision is to deny protections to same-sex families which ensure they are enforceable in places other than the State of New York.  Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M?  And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?

 

 

 

This blog represents the opinions of the author and are not intended to provide legal advice.

Filed under: adoption, Current Affairs, In the News, Sam Sex Parenting and Reproductive Law, Same Sex Parenting and Reproductive Law, Third-Party Assisted Reproduction, Uncategorized

Tags: adoption

Adoption friendliness at its best. How one nurse blew me away and changed how I think about adoption placements.

October 18, 2013 | By: Elizabeth

Adoption is a complex world.  As anyone who is going through the process, or who has gone through the process knows, the legal issues are complicated, the emotional issues are highly charged — about as charged as a scene from the Wile E. Coyote cartoon, where he gets blown-up by accident from the mega tons of TNT he has left to detonate in the path of the Road Runner —  and everyone is walking on pins and needles.  And my description does not begin to adequately address the thoughts, feelings, and experiences of birth parents.   I am NOT comparing birth parents or adoptive parents to the Road Runner or Wile E. Coyote, I am just pointing out that there is a lot of powerful emotional stuff going on in the midst of an adoption, most especially the time around the baby is placed in the arms of the adoptive parents, and the fact that the tension and emotionally charged nature of many adoption situations remind me (on an emotional level) of this cartoon.

Due the highly charged nature of this particular time in the adoption process, many adoptive parents emotionally hold themselves at arm’s length from their new baby until they are told that the legal process is complete and/or that birth parents’ parental rights are terminated.  The time at which birth parent rights get terminated varies from state to state and varies whether you are working with an agency or an attorney.  Indeed the adoptive parents involvement at or around the time of the baby’s birth often varies tremendously based on whether you are working with an agency or an attorney, and even more so among agencies.  Every attorney and agency has their own way of trying to protect everyone’s emotions during what I am going to call the Wile E. Coyote Phase of the adoption process, the period of time after the baby is born and before birth parents’ rights have been terminated and when the baby is “placed” with its** forever family.  It doesn’t mean that I think this time period often results in the detonation of emotional TNT, indeed it is my experience that the vast, vast majority of situations work out after a baby is born.  Some don’t, as I can personally attest to, but most and I repeat MOST do work out and a new [adoptive] family is born.

As an adoptive mother I have always felt that the Wile E. Coyote Phase is perhaps the hardest part of the adoption process.  Not so much because a birth mother can choose to parent during this last and final phase of the adoption process (just as we think we are getting to the proverbial finish line) but because so many of our hopes and dreams have to give way to legal procedures, agency procedures, hospital procedures, adoptive triad dynamics, and it’s just not how we envisioned what it would be like to become a parent.  We have faced this reality for a long time before Wile E. Coyote comes along, but those feelings and dreams tend to creep more to the surface when you are surrendering everything to a process that is almost wholly outside your control.  The only thing in your control is how you react and respond to what is going on around you, and how you choose to feel about it.  However, both from personal and professional experience it is my practice to advise my clients that this is a difficult time period and to try and walk into the placement phase, or Wile E. Coyote Phase, with an open but guarded heart.  And more importantly to let go of all of your expectations of how you think becoming a parent “should” be and do your best to surrender to the process, to Wile E. Coyote.

Yet, a recent experience has set my opinions, thoughts, feelings and my future advice to clients, on it’s HEAD.  I have learned that I have been looking at it the wrong way and thus depriving not only myself of certain experiences, but those of people who look to me for advice and counsel.  One person has totally shifted my perspective of the Wile E. Coyote Phase.

What happened?  Great question.

Approaching the end of the Wile E. Coyote Phase, an adoptive couple** was getting ready for their baby to be discharged from the hospital.  The birth parents had signed all of their legal consents to the adoption and although they were not yet legally binding under the laws of this particular state, as the birth parents still needed to appear before a Judge and agree to the adoption and the termination of their parental rights,  it was time for the adoptive parents** to take the baby “home” to their hotel to wait out the remainder of the Road Runner’s race and the Wile E. Coyote Phase.  After carefully dressing the baby and getting it** settled into its car seat, the adoptive dad** was sent to the parking lot to get the car.  Adoptive mom**, after finishing packing up their belongings, reached to get the baby and the car seat, preparing to walk out of the hospital and get in the car to go to the hotel.  As she scooped up the car seat the nurse came in and asked adoptive mom what she was doing.  Of course adoptive mom’s heart stopped; she immediately began worrying that Wile E. Coyote had just detonated some or all of his TNT.  With her heart in her throat, adoptive mom calmly turned to the nurse and said she had been instructed be her attorney and the pediatrician that they could go to their hotel with the baby, she believed she had signed all the necessary paperwork, and inquired if there was some kind of a problem.  Indeed there was said this nurse, at which point the nurse asked the adoptive mom what gave her the right to walk out of the hospital with the baby?  Confused, the adoptive mom asked the nurse what she meant.

The nurse — being extremely emotionally intelligent and adoption friendly, and my current heroine — explained that: “NO NEW MOTHER WALKS out of this hospital.  Please wait while I get you a wheelchair.”

Now I don’t know about any of you other infertile ladies or adoptive moms but one of my personal dreams has always involved being wheeled out of the hospital holding my baby in my arms.  I still cry at scenes like the one in the movie “Marley and Me” where Jennifer Aniston’s character is holding their new baby girl in her arms in a wheelchair while Owen Wilson’s character video tapes the scene.  I never got that experience and while I wouldn’t change a thing in my life, you know I am honest about this stuff and it makes me sad that there are certain dreams that I have had to let go of along my journey to parenthood.  Heck, I was jealous when I walked along side our birth mother after we were discharged from the hospital as she was the one in the wheelchair holding the baby in the car seat, not me.  Never mind the fact that she was holding my hand so that we were walking together.  I wanted to be the one in the wheelchair and I had to accept that I wasn’t, and I probably was never going to experience that particular dream.  I don’t think I am alone in harboring this little secret that one of the things I had dreamed about while growing up was that wheelchair ride.  And that wheelchair ride is not something adoptive mothers get to experience.  Or so I previously thought, believed and experienced.

Back to the hospital, adoptive mom argues with the nurse that she didn’t give birth to the baby and didn’t need the wheelchair; she was “only” the adoptive mother, certainly the hospital must need the wheelchair for someone else?  But the nurse wouldn’t relent.  She didn’t care a wit about adoptive mom’s “labor experience”, or lack thereof.  The nurse was very clear with adoptive mom that regardless of the circumstances by which she was becoming a mother adoptive mom was THE MOM, and as a MOM, a NEW MOM, she was to be discharged just like any other new mother;  ALL NEW MOTHERS get discharged in a wheelchair.  They continued to discuss this issue until the nurse brought everything to a head and asked adoptive mom: “don’t you want to be discharged in a wheelchair like any other mother would be?  Don’t you want that experience for yourself?”  Crying, adoptive mom admitted she would love to be discharged in a wheelchair.  At which point the nurse instructed that MOM had better get a hold of DAD so he could video record their exiting the hospital with MOM holding the baby in its car seat in the wheelchair.

The point was not lost on me nor was it lost on adoptive mom.  We are all new mothers no matter how our babies come to us and we are entitled to have our dreams come true regardless of the manner in which we become parents.  The fact that this nurse understood the grieving process adoptive mother’s often go through, and the importance of our dreams, is a testament to her education and experience.  Perhaps she herself adopted, or she knows someone who has, or even more to her credit perhaps she just understands how important are some of the images women hold of the milestones of our lives and recognize that without that wheelchair ride we may be reminded — even if it’s on some small level in comparison to the joy and gratitude in our hearts — that our path didn’t take the turns we expected.  Whatever the reason, this nurse got me thinking about how important moments like that are, especially during the Wile E. Coyote Phase, and how much of a celebration we are missing by giving so much power to that cartoon of a coyote.

That wheelchair ride brought profound joy and a sense of celebration to adoptive mom and adoptive dad, and may well provide something even larger than that to the baby.  As that baby grows up and asks to hear its adoption story, that baby will get to see an image that all of its “bio-baby” friends probably get/got to see.  But I am not just talking about mom and dad leaving the hospital in the wheelchair carefully holding that car seat, I am talking about the utter joy, bliss and excitement on mom’s and dad’s faces as they left the hospital.  To be able to see that excitement — which existed long before the baby’s birth — and the pure joy the baby’s parents were experiencing as they brought their new baby home, helps that baby/child understand how much it was wanted and how much love its parents’ hold in their hearts.  Other aspects of our children’s adoption story will express those emotions, but a picture truly says a thousand words, and videos even more so.  In this case I think that video probably is one of the most valued and treasured pieces of their journey to parenthood.

There are so many levels on which that wheelchair ride takes my breath away.  I long to meet this nurse and thank her, not only for what she did for these adoptive parents but for what she has done for their family, for me, and for the new approach I am beginning to take to the Wile E. Coyote Phase of the adoption process.

I am curious to know how many other adoptive parents have been given this wheelchair ride.  If you have, please post something in reply to this blog or email me privately (Liz@storklawyer.com).  If you wish you had that wheelchair ride, and are as moved as I am by what this nurse did, please let me know that too.  And if you want to have that wheelchair ride  ASK FOR IT.  Because as that nurse said, every new mother deserves to leave the hospital in a wheelchair (assuming that is what the new mother wants).  I recognize that not all adoptions are going to provide circumstances that enable an adoptive mom to have that wheelchair ride, but in those circumstances that do permit it, this nurse has taught me even more about all the nuances involved in the fact that biology alone doesn’t make a family, and a new understanding that we are not as powerless as we may feel, that we don’t have to give up all of our dreams, all of the time.

My final thought or comment of this blog is to all of the nurses in all of the maternity wards who are involved with or helping an adoptive family, if you don’t or can’t offer that wheelchair ride, please consider the thoughts and feelings identified in this blog and consider changing or working to change things so that more of us new moms get that wheelchair ride.

Because we deserve to have that experience.

 

** general terms have been used in this blog on purpose to help identify roles in the adoption process and emotions related thereto, but without any intent to devalue or belittle the roles of the people who enter into adoption plans every day.

Filed under: adoption, Faith and Infertility, Peace to Parenthood, Personal Musings, The Journey to Parenthood, Thinking Out Loud, visualization