- What should I keep in mind given the changing legal landscape?
As the “gayby” boom continues to thrive with lesbian and gay couples, legal issues abound. Various national organizations1 estimate that lesbian and gay parents are raising 6 to 14 million children. According to the Williams Institute, more than one in three lesbians and one in six gay men are parents.2
An estimated 65,500 adopted children and 14,000 foster children live with lesbian or gay parents. That adds up to lots of kids, lots of lesbian and gay parents, and some unique and challenging legal issues. And, with more lesbian and gay couples in legally recognized relationships, the legal issues parents and children face become more important.
Children being raised by same-sex parents may be the product of adoption, artificial insemination, surrogate birth, or biological parenthood. In most cases only one party is recognized as the legal parent. The other parent is a legal stranger to the child.
When children are involved, or if clients plan to have children, including family issues in the estate plan is essential—and these issues involve more than a will or trust.
A. Nontraditional Families
The phrase “nuclear family” has traditionally referred to a married heterosexual couple raising children. This, for many people, still constitutes the only “family” that can be recognized.
The U.S. Census Bureau indicates that 70% of children live in a traditional family scheme. Most live with their married parents; others live with their unmarried biological parents. The 2000 Census3 figures show that 24. 1% of children live in a traditional, nuclear family with married parents. That is down from 40.3% in 1970.4
Today, however, the term “nuclear family” is giving way to a greater reality. More children are living in nontraditional families than ever before. Unfortunately, the law in most states is not keeping up with these changes in familial makeup. This is most apparent for children living with lesbian or gay parents.
Children with same-sex parents often face a situation in which only one of the people they consider a parent is legally recognized as one. This is bad enough when the couple is together and raising the children. It can become a nightmare scenario if the couple ends their relationship and the non– legally recognized parent tries to maintain contact with the child.
Children living in families with only one legally protected parental relationship face myriad issues. These include:
- No right to inherit from the nonrecognized parent
- No right to receive Social Security benefits on that parent’s account
- No right to be added to the health insurance benefits of that parent
- No right to other insurance benefits from that parent’s employer
- No right to have the nonrecognized parent consent to needed emergency medical treatment or visit the child in the hospital.
Children tend to develop relationships with the adults in their lives without regard for the legal niceties. The parents and their lawyers, however, must concern themselves with how the law views the family and what protection, if any, is provided.
While the legal landscape is changing and lawyers are making creative arguments, there remains a great deal of work to do.
B. Questions to Ask
One of the first questions to ask a client is, “Who are the parents?” The answer could surprise you. In this day of in vitro fertilization and surrogacy, there may be four possible parents involved, and not just the two people sitting before you.
Sometimes a gay man will enter a legal marriage with a lesbian in order to start a family. The parties then continue their relationships with their same-sex partners while raising the children of the “marriage” together.
Another scenario may involve a gay male couple hiring a surrogate mother to have their child. The surrogate mother may be a lesbian who intends to remain a part of the child’s life. Alter the sex and you can have a lesbian couple entering into an agreement with a gay male to father their children. The man may be the father of children birthed by both women.
Or the lesbian couple may swap eggs that are then fertilized by the same male donor. There is a genetic connection between all of them.
Yet another possibility: A male friend agrees to be the father. Initially, he agrees to forfeit all parental rights to the child, until his son is born. He always wanted a son, so now he wants to be involved.
It is important to know the players. It is essential to understand the subtle nuances that exist in this family unit. Your clients may not meet any definition of “family” you ever considered. But we are still talking about families, and your client will want to know how to protect them.
If the couple fails to, or is unable to, formalize their relationship and parental responsibilities, the results may be traumatic for all concerned.
In July 2011, the Ohio Supreme Court issued a decision5 that created a tsunami effect in the state. Kelly Mullen and Michelle Hobbs were in a committed relationship. In 2003, Mullen decided she wanted to have a baby. Hobbs contacted a friend, Scott Liming, and asked him to be the sperm donor, and he agreed.
According to the decision, Mullen and Hobbs signed a purported donor-recipient agreement on insemination. This document, prepared by a lawyer, provided that Liming would be listed as the child’s father but would have no other parental rights or responsibilities.
Mullen gave birth on July 27, 2005. The women created a ceremonial birth certificate listing them both. Liming formally acknowledged paternity. After the child’s birth, Liming moved back to Ohio and began visiting his daughter even though he had waived all such rights in the agreement.
Mullen and Hobbs began having problems, and Mullen moved out, with the child, in October 2007. Two months later Hobbs filed a court action for visitation with the child. The juvenile court magistrate agreed with Hobbs and issued an order for visitation. The juvenile court judge, ruling on objections filed by both women, rejected the magistrate’s decision. Hobbs appealed and lost. The Ohio Supreme Court accepted the case and upheld the lower court decisions.
According to the Ohio Supreme Court, in a 4–3 decision, Hobbs had no rights. The court held:
Because the holdings of the juvenile and appellate courts are supported by the evidence and are not clearly against the manifest weight of the evidence, we must affirm them. . . . [We] decline to disturb the juvenile court’s decision. We hold that competent, credible, and reliable evidence supports the juvenile court’s conclusion that Mullen did not create an agreement to permanently relinquish sole legal custody of her child in favor of shared legal custody with Hobbs. Consequently, the juvenile court may not reach the questions of whether Hobbs is a suitable person to be a custodian of the child or whether shared legal custody is in the child’s best interests. [citations omitted]
It is interesting to note that the court decided that Mullen never “permanently” intended to share custody with her former partner. Mullen executed a will appointing Hobbs as the child’s guardian. She executed other documents giving Hobbs authority for medical care for the child. However, Mullen did not indicate that any of the documents were irrevocable. Without that stipulation, as far as the court was concerned, she had the right to change her mind—and Hobbs could do nothing about it.
It is also important to note that Hobbs repeatedly refused to execute a joint custody agreement with Mullen. Had she done so, Hobbs would have had enforceable rights under In re Bonfield.6
In Bonfield, the Ohio Supreme Court granted a juvenile court jurisdiction to consider a joint custody arrangement for a lesbian couple. Ohio law does not recognize a same-sex partner as a parent. However, the court stated that the parties could enter into such an agreement and have it adopted by a court.
Bonfield is unusual because the initial decision stated that second-parent adoptions were not permitted in Ohio. The court took the unusual step of rescinding the original decision and issued a revised opinion that deleted any reference to second-parent adoption. This action has been interpreted as leaving open the question of second-parent adoptions in Ohio. Mullen also does not mention second-parent adoption.
Mullen is a sad decision on many levels, but it provides a teachable moment: Lawyers can use this case to encourage their lesbian and gay parents to execute joint custody agreements. There is no upside to not having such an agreement.
And, if the biological or adoptive parent balks at signing such an agreement, the other partner will have a clear understanding of the ramifications.
Another lesson to be learned from this case is the value of unknown donors. As long as the donor is known, there is always the chance that the person will come back later seeking parental rights. So far, there is only one case—from Canada—that recognizes three parents for a child.7 No U.S. court has done so, and it is unlikely that such an outcome will occur in the foreseeable future.
Oh, and, Mullen’s legal woes are not yet over. Liming is currently seeking custody and visitation with the child. Mullen is arguing that he waived those rights with the donor-recipient agreement on insemination. However, he is the child’s father and Mullen did encourage visitation. Liming and Mullen will be linked together for a long time to come.
C. Parents Misbehaving
One thing the Mullen case has in common with heterosexual custody cases is the example of bad behavior by parents. In this respect, lesbian and gay parents act just as poorly as heterosexual parents when the relationship ends: “When there is nothing left to fight about, we still have the kids.”
Mullen is neither the first nor the last example of how adults use their children against their former mates. There are more cases involving lesbians fighting over children than gay men fighting over children. There is no empirical evidence explaining why, but the answer may simply be because more lesbians have kids than gay men.
When lesbians and gay men end their relationships and children are involved, one side usually raises the anti-gay arguments that have been raised for years. Lesbian and gay lawyers or LGBT-friendly lawyers are known to raise some of those very arguments.
Clients are entitled to more than knee-jerk reactions from their lawyers. All lawyers have had idiotic clients, but that is no excuse to initiate a course of action that benefits no one. The courts are filled with idiotic clients and their lawyers. We have all seen cases that dangled for years in the system because the clients were intent on destroying each other and the lawyers did not want to interfere.
While lawyers must be assertive in their representation, it does no one any good to raise the arguments that we fight against on a daily basis. This is a difficult but conquerable conundrum for lawyers.
Lawyers have a variety of tools available to help their clients. Mediation is preferable to litigation or arbitration, especially in family law situations. Use alternative dispute resolution in these situations. Learn about collaborative law and pursue a different philosophy. The outcome will benefit all concerned—including the children.
D. Protect the Children
The basic protection for a child’s well-being is often defined as follows:
- Right to inherit; intestacy rights
- Right to be guardian, conservator, or executor of the parent’s estate
- Right to have the parent make medical decisions
- Right to be covered under the parent’s health insurance plan
- Right to have the family unit protected under the Family and Medical Leave Act
- Right to sue for wrongful death
- Right to receive Social Security benefits as a dependent child
- Right to maintain a relationship with the parent
- Right to receive financial support during the child’s minority
Every child is entitled to the emotional security inherent in the legal recognition of family relationships. Parents and lawyers have a duty to ensure that those children are protected.
E. Estate Planning Issues
Important estate planning questions include the following:
- How to provide for children when only one parent is legally recognized
- How to protect the parenting rights of the nonrecognized parent
- How to ensure that the surviving partner will be named as the children’s guardian if there is no adoption
- How to provide for the children when the state does not recognize them as a family
Lawyers need to know how to counsel clients who want to protect their children. If they live in a state where they cannot legally marry, the parenting questions become complex and convoluted. The Human Rights Campaign8 is one of many good sources of information on the status of same-sex relationship recognition.
An essential clause in any will involving minor or disabled children concerns guardianship. There is no excuse or reason to not name a guardian—the probate court will name a guardian if the parent does not.
Lesbian and gay partners generally name one another as the child’s guardian. In states where second-parent adoption is not permitted, this will be the primary way for the surviving partner to continue his parent-child relationship.
If the couple has a joint or second-parent adoption order, their individual wills must clearly reflect that fact. Either include a reference to the case number and the issuing court or incorporate the court order into the will.
If there was no second-parent adoption, the legal parent may want to include a will provision indicating his consent to having his surviving partner adopt the child. Include language explaining why this consent is given. This establishes a paper trail reflecting the parent’s intentions.
Naming an alternative guardian will govern a situation if the primary nominee is unable or unwilling to accept the appointment.
The guardian nomination guides the court in the matter, but unfortunately, there is no guarantee that the court will accept that guidance.
The testator may nominate a guardian of the person and estate. This may be the same person or different people. The guardian of the estate controls the child’s finances. If there is a concern that the parent’s surviving partner will not be named or that a relative will contest the appointment, the best defense is a trust. The trust can name the surviving partner as trustee. That authorizes the surviving partner to maintain contact with the child. In fact, the trust can specify regular interaction between the trustee and the child.
The nonlegal parent has the option of naming a guardian in her will. However, since she has no legal rights, the nomination has no effect. If the child’s legally recognized parent survives, that person has paramount rights.
As you can see, these complicated issues require clear and creative planning.
In addition to naming a guardian for the child’s person and estate, the will should include a clause naming a bridge guardian or “standby guardian.”
A bridge guardian cares for a child after the parent’s death or incapacity and before a court appoints the custodial guardian. This allows the parent to provide continuity in the child’s life. It also allows a lesbian or gay couple to establish their intention concerning the child. It will give further evidence of the parent’s intention that the surviving partner continue as the child’s custodian.
If a bridge guardian is not named, a court may order the child removed from the home pending the appointment of the custodial guardian. The child may be placed in foster care or with relatives of the deceased parent. The child may not know these relatives if her parent was estranged from the family.
Children dealing with the death of a parent should not also be subjected to inter-adult combativeness. Continuity is very important to children. Since the parent’s partner is a legal stranger to the child, there is no automatic right to custody of the child. Naming the partner as the bridge guardian may prevent additional trauma for the child.
Specifying a bridge guardian will also provide the authorities with an alternative to placing the child in foster care. If the child is not placed in foster care, she may be placed with a relative who is a stranger to the child or one the deceased parent dislikes. The goal is to protect the child and provide for the child’s best interests. That should be specified in the clause naming the bridge guardian.
Illinois and New York permit the appointment of a bridge guardian and will grant immediate custody of the child to that person. This is a temporary order that continues until the court can address the child’s future. However, the appointment can remain in effect until the will is probated.
If the deceased parent’s partner is named as the child’s guardian in a will, the bridge guardian stipulation follows the decedent’s expressed interest.
Couples with minor children need an estate plan to provide for those children. While same-sex couples are no different from other parents, there is one exception. In most cases involving same-sex couples, only one member of the couple is considered the “legal parent.” Without a second parent or joint adoption, there is no guarantee that the surviving partner will be granted any access to the children.
Both parties can provide for their children in a will. Naming the child in the will means that the bequest will be paid out after the testator dies without considering the child’s age. If the child is a minor, the child’s guardian will administer the funds. When the child turns 18, the guardianship ends and the child receives the bequest.
In order to forestall a challenge, the legal parent may want to give the surviving partner total control over the child’s estate. A challenger learning that she may get the child but not the child’s money may have second thoughts.
Remember the 1958 movie, Auntie Mame starring Rosalind Russell? Mame’s brother died and named her the guardian of his son. She got the nephew, Patrick. But her brother named the Knickerbocker Bank as the child’s trustee. Mame got the kid . . . and Mr. Babcock, the banker. So, think of this as the “Auntie Mame” clause.
A testamentary trust will alleviate some concerns. The decedent’s assets flow into the trust after death; there is no transfer of assets during the testator’s lifetime.
The testator controls the disposition of assets to the child. A trust names the trustee who is responsible for administering the trust. The trust will also set the time when the trust terminates. That gives the testator the option of continuing the trust until the child reaches a more mature age. Rather than paying out the assets at 18, the trust may continue until the child turns 25 or 30 or later.
An irrevocable life insurance trust may be a viable alternative if the client anticipates a will contest. Even if the will is successfully challenged, the child’s trust fund will remain inviolate. This type of trust may be used in conjunction with other estate planning techniques, including a living trust or testamentary trust.
F. Joint or Shared Custody Agreements
The purpose of joint custody agreements is to establish a written record of the parties’ intentions concerning their children. While these agreements are private in nature and, usually, not sanctioned by a court, they do provide a record that the parties can refer to should a dispute arise.
Joint custody agreements can serve the purpose of providing the nonbiological parent with specific rights and responsibilities toward a child. Specifying rights provides support for the nonbiological parent if the parties break up and an attempt is made to prevent the child from continuing a relationship with that person.
The parties may agree to share custody and parental rights that are not provided for in state law. However, the legal parent has the right to waive any constitutional rights and share parental rights with a nonparent.
A joint custody agreement must clearly state the couple’s intention to continue joint custody even if their relationship ends. The agreement should include provisions dealing with all aspects of the child’s life during minority, such as custody, visitation, support, and college tuition.
Some considerations need to be addressed. First, there is no guarantee that a court will recognize or uphold the agreement. Whenever possible, the parties should petition a court to accept the agreement. That turns it into a court order. This is the next best method to adoption.
Second, there are inherent conflicts between the parties to this agreement. One partner is the child’s biological or adoptive parent. The other has no legal standing in relation to the child. The former is relinquishing specific parental rights that are superior to all others. The latter is accepting responsibilities and obligations that do not exist in law.
Third, there may be a donor or surrogate involved with creating the child. That person may also be a party to the agreement. The donor or surrogacy agreement should be incorporated into the joint custody agreement.
Because of the inherent conflicts, it is best for both parties to be represented by an attorney. At the very least, one of the parties must be encouraged to consult with a lawyer who can review the agreement.
The bare minimum is for the parties to acknowledge that they were encouraged to consult with a lawyer and elected not to do so. Redundancy in language on this issue is recommended.
As a practical matter, most couples that seek a joint custody agreement will see no need for separate counsel. That leaves the lawyer with the chore of documenting the file and confirming the advice in writing to both parties. A separate letter to each may be appropriate. Reiterate the significance of the agreement, the couple’s actions, and the effect it will have on their individual legal liability concerning the child.
Watch Your Language
State law will determine whether the word “parent” may be used in the agreement. Some states limit the definition of parents to those with biological or adoptive ties. Using the word “parent” may create a problem for the client if there is a challenge to the agreement.
Most clients understand once the legal issues are explained. They may share custody, but in reality they are jointly parenting the children.
While a joint custody agreement cannot prevent an acrimonious split, it will make the parties think about the children’s best interests during a time when the relationship is going well.
A joint custody agreement should serve the following purposes:
- Define the relationship between the parties.
- Define the parties’ understanding of the relationship between the nonrecognized parent and the child.
- Provide an acknowledgment by the biological/adoptive parent that she understands her constitutional rights to the full care, custody, and control of the child and voluntarily waives those rights.
- Include a provision that any dispute will be resolved through mediation rather than litigation.
- Include a provision that neither party shall dispute the agreement or its effectiveness and that either can seek enforcement in court.
- Include a clause granting power to the nonlegal parent to approve medical treatment for the child. This avoids delays in an emergency when the child requires care and medical personnel balk because “you’re not the mother.”
- Including co-parenting clauses to provide for the child’s care.
- Include a provision that reflects the parties’ decision concerning custody, visitation, and support.
Rather than taking an unwarranted risk, use “joint custody agreement” in lieu of “joint parenting agreement.”
Precise drafting is important. The more definite the language used, the more likely the court will sanction the agreement.
Write the joint custody agreement in plain English. This is not the time to be obtuse. Clear, concise language is in order. Make sure the client understands all the words being used. Use names, not designation. It personalizes the document.
If the agreement is challenged, every effort will be made to have the agreement deemed unenforceable because of the words used. Err on the side of caution. The parties are agreeing to joint custody of the children. That will include custody, visitation, and support.
A joint custody agreement may be used to assist the court in reaching a decision on custody. While there is no guarantee that these agreements will be recognized by the court, they can be used to prove the parties’ intentions concerning the children.
Anticipating that one parent may use the existing laws to avoid responsibilities under the agreement will help during the drafting stage. Remember that either party can use a legal argument to challenge the agreement.
The nonrecognized partner may have second thoughts about parenting when the relationship ends. Children are expensive. There is no legal obligation for anyone other than the biological or adoptive parent to support the child.
Agreeing to be legally responsible for a child’s support is a voluntary action. The agreement language should be clear about what rights a party is waiving and what obligations a party is accepting. This gives rise to the existence of the “consideration” that is required in any contract.
Viewing the joint custody agreement as a contract between the parties will help in drafting the language.
In the beginning, there were few guidelines to follow, but that is changing. The courts are issuing decisions that can be used to further hone these agreements. No one should be afraid to adopt language from other sources. This is an agreement being entered into by two adults.
Clients are often reluctant to retain separate counsel to review the joint custody agreement. They are in sync and cannot foresee future problems. When clients refuse the suggestion to have the agreement independently reviewed, include a provision in the agreement concerning addressing the issue. Have both clients initial the clause. No one can force a client to follow sound advice.
A joint custody agreement is included in Appendix A.
While there may be many occasions for joint representation, it is better to recommend that each party have his own lawyer, or at least have a separate lawyer review the agreement.
1. Family Law Section, American Bar Association; Lambda Legal Defense Fund.
2. Gary J. Gates, M.V. Lee Badgett, Jennifer Ehrle Macomber & Kate Chambers, Adoption and Foster Care by Gay and Lesbian Parents in the United States, WILLIAMS INST., Mar. 2007, http://escholarship.org/uc/ item/2v4528cx.
3. Sam Roberts, Most Children Still Live in Two-Parent Homes, Census Bureau Reports, N.Y. TIMES, Feb. 21, 2008, http://www.nytimes.com/2008/02/21/us/21census.html.
4. BRIAN WILLIAMS, STACEY C. SAWYER & CARL M. WAHLSTROM, MARRIAGES, FAMILIES & INTIMATE RELATIONSHIPS (Pearson 2005).
5. In re Mullen, 2011-Ohio-3361 (July 12, 2011).
6. 97 Ohio St. 3d 387, 2002-Ohio-6660, 780 N.E.2d 241.
7. A.A. v. B.B., 2007 Ont. Ct. App. 2  (20070102). http://www.hrc.org.