Protection of Parent-Child Relationships Act Signed into Law!

The Protection of Parent-Child Relationships Act (AB 1349) was signed into law this morning by California Governor Jerry Brown.  Having helped write this bill -- and having worked for two years to get it passed -- I couldn't be more pleased.

WARNING -- the following explanation is legally complex.  Take a deep breath before reading.  And let me know if you don't understand!

This Act amends California parentage law in two important ways:

(1) When an unmarried woman gives birth to a child, she has the opportunity to name the child's father and he can be listed on the child's birth certificate if -- and only if -- he and she sign something called a Voluntary Declaration of Paternity (VDP).  The form must be witnessed and filed with the state Department of Social Services.  Once that process is completed, the man is the legal father for all purposes, and the VDP is treated the same as a Judgment of paternity rendered by a court.  But there's a catch.  Before a court will adjudicate paternity, they are required to make certain that every person with a claim to parentage of the child has received notice and had an opportunity to be heard.  This is called due process.  But no notice is required in order to file a VDP.  So a mother can have the biological father sign a VDP even though another person has already assumed a parental role and taken full responsibility for the child, without any notice to the other person who has been acting as a parent.

Prior to the passage of AB 1349, there was no way to set aside a VDP unless it later turned out that the declared father was not actually the biological father.  So a man or woman who raised a child, along with the child's biological mother, could be removed from that child's life at any point by the mother finding the biological father, getting him to sign a VDP with her, and filing it with the Department of Social Services.  The non-biological parent was left with no recourse, and no standing to even seek continued visitation with the child.

California is a state that has long recognized that the social relationship of parent and child is often more important than the biological relationship of parent and child.  Where the person who has raised a child is not the genetic parent, the courts often will protect the established parent-child relationship, even in the face of a challenge by the genetic parents.   The VDP process, as it existed until today, created a serious loophole in this principle.

Now, with the Protection of Parent-Child Relationships Act having been signed into law, where a child has a biological father who has signed a VDP, but has been raised by someone else who has acted in every way as a parent, the courts will have the discretion to dig into the facts and figure out which person is best suited to be in the legal role of "parent."  The courts will no longer automatically have to default to genetics, if this result would not be in a child's best interest.

(2)  California law distinguishes between fathers and sperm donors.  A sperm donor is a man who provides his sperm to a physician or sperm bank, for purposes of insemination or in vitro fertilization of a woman other than the donor's wife.  A father is a man who impregnates a woman in any other way (i.e. without physician involvement -- whether through assisted insemination or through sex). 

In our modern world, there are many men providing their sperm to physicians or sperm banks for purposes of impregnating a woman other than the man's wife, who in fact intend to be fathers to the children whose conception results from the process.  Some examples:  married couples who find themselves unable to sustain a pregnancy on their own often provide both eggs and sperm to a physician, which eggs and sperm are used to create embryos through an in vitro fertilization process.  The embryos are then implanted into the womb of a gestational carrier (surrogate).  Under this scenario, the husband has provided his sperm to a physician for purposes of in vitro fertilization of a woman other than his wife, but with the full intention of being a father of any resulting child.  Likewise, any time an unmarried heterosexual couple needs medical assistance to conceive, the man will be providing his sperm to a physician.  Paternity is not determined by the marital status of the parents in sexual reproduction; it also should not be determined by the marital status of the parents in medically assisted reproduction.

The Protection of Parent-Child Relationships Act amends our Family Code to allow a man who provides sperm to a physician or sperm bank to still be a father, even though he is not married to the woman who will be impregnated with the sperm, as long as he and the recipient sign an agreement prior to impregnation that clearly states their mutual intention that he be a father.

California family law is complicated, particularly when it comes to figuring out who "parents" are in our modern world.  AB 1349 will go a long way to assuring that children's legal relationships with their parents are protected, regardless of how the parent-child relationship came into being.

Thanks to the National Center for Lesbian Rights, Equality California, the Academy of California Adoption Lawyers, attorney Diane Goodman and my beloved ex-client Kim Smith for their help in turning this hope for California children into a reality!

Adoption Tax Credit & Second Parent Adoptions

Well, sorry to say, it now appears that the Adoption Tax Credit audit that I wrote about in late June is leading to an unprecedented number of denials of the credit to lesbians and gay men who have completed second parent adoptions around the country.

A number of attorneys who work with LGBT families around the country have been discussing this issue, and tax professor Pat Cain has provided some suggestions for how best to respond to the IRS.  Rather than reprinting her thoughts here, I am simply linking to her own blog on the subject.

http://www.law.scu.edu/blog/samesextax/

If you have received a letter from the IRS disallowing your adoption tax credit, following completion of a second parent adoption, PLEASE send a letter to the IRS questioning their decision.  If they still do not approve your credit, please contact NCLR.

When Married for Life Means ... Married FOR LIFE

On July 24, 2011, New York will become the sixth state in the country to allow same-sex couples to wed.  Given that New York already is a popular destination for people from all over the United States and the world, it is not hard to imagine same-sex couples streaming into New York from places near and far to exchange their vows of marriage. 

The beginning of same-sex nuptials in New York is historic, and is cause for celebration -- for what it says about social acceptance and equality, as much as for the actual ability of same-sex couples to marry.

But as a family law attorney, and someone who is involved in family policy work on a national level, I am worried about couples getting caught up in the excitement of the moment, and flying off to New York to marry without truly thinking through the legal consequences of that choice. 

A quick lesson about jurisdiction:  Before you can go into the courts of any state to ask for relief of any kind, those courts have to have jurisdiction -- "subject matter" jurisdiction over the issue that brings you before the court, plus "personal" jurisdiction over the parties.

Getting married does not require any type of court action.  It is a clerical act.  So the courts of a state do not need to have jurisdiction for a couple to get married in that state.  A different-sex couple can get married in any of the 50 states, regardless of where they live; and a same-sex couple can get married in any of the 6 states that now allow same-sex couples to marry, regardless of where they live.

But divorce requires court action.  So the courts must have jurisdiction before they can adjudicate a divorce.

This means that a same-sex couple from, say, Indiana, can travel to any of the six states that now allow same-sex couples to marry, and can get married there without any problem.  But then that couple presumably will return to Indiana.  And Indiana does not recognize same-sex marriages.  Which means that if that couple later needs a divorce, there is a strong chance that the Indiana courts will not be willing to divorce them (because the courts of many states are refusing to recognize same-sex marriages, even for purposes of divorce).  And the courts of the state where they married will not have jurisdiction unless at least one of the spouses establishes residency in that state; for example, the New York courts will not have jurisdiction to divorce a couple married in New York unless at least one of the parties  has actually lived in New York for a minimum of one year.

So while we all are celebrating the spread of equality around the country, it is important to remember that marriage is, fundamentally, a deeply personal and legal commitment to a long term relationship with an intimate partner.  It is a commitment that is meant to be "for life" -- and in the case of same-sex couples traveling outside their home state to marry, it may truly be FOR LIFE. 

So mazel tov to all the happy couples exchanging marriage vows in New York next weekend.  But please don't get married just because you can.  Remember that marriage is a legal commitment that it is hard to get out of, and make sure it is the right choice for you and your beloved before you take the leap.

Adoption Tax Credit Audits

This is a head's up to all of you out there who have claimed an adoption tax credit in recent years and have now received an audit form from the IRS.  It appears that the IRS is doing across-the-board audits of many, if not all, adoption tax credit claims.  These are not personalized audits -- they are a form audit, being sent out to many, many people claiming the credit.  My understanding is that they are part of a process whereby the IRS is reviewing the scope and functionality of the adoption tax credit itself -- they are not, in fact, aimed at individual tax-payers.

This is not to say that you should not take these audits seriously.  Frankly, I recommend taking anything the IRS does seriously!  But you should not take them personally.  If you received one of these audits, you are not being targeted any more than anyone else who claimed the credit in recent years.

And for folks PLANNING on claiming the credit, this is yet another reminder that it is important to keep good records.  Put all receipts, cancelled checks, invoices, etc in a folder clearly marked "adoption expenses," and then try to remember where you put that folder.  Even though you are adjusting to being a parent, and may not know where your socks are.  ;)  This will make it much less stressful if/when it is your turn to answer to an audit like the one now underway.

Just thought folks would want to know....

A Monumental Week for Family Formation Law!

Here is a brief head's up about three major legal news items in the fields in which I practice law:

(1) ARKANSAS ADOPTION DECISION:  On April 7, 2011, the Arkansas Supreme Court struck down the state ban on fostering or adoption by cohabiting unmarried couples. To briefly recap: On November 4, 2008 -- the same date that Obama was elected President and Proposition 8 passed in California -- a ballot initiative was approved by a simple majority (57%) of Arkansas voters titled "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old."  Under the Act, an individual was prohibited from being an adoptive or foster parent if that individual was "cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state."  (Although the law applied equally to unmarried same-sex couples and unmarried different-sex couples, it clearly had a disparate impact on same-sex couples because they are unable to enter into "a marriage that is valid under the ... laws of [Arkansas].")

The Arkansas Supreme Court found that this Act unconstitutionally infringed on the fundamental right to privacy implicit in the Arkansas Constitution, because it required the government to inquire into the private, consensual, intimate sexual conduct of adults applying to be foster or adoptive parents, as a precondition to approving the placement of children in their home. The Court determined that individualized home studies -- required of all applicants to foster or adopt children -- were sufficient to address the needs of the state's children, and that a blanket policy prohibiting fostering or adoption by cohabiting adults was overbroad and impermissibly invaded Constitutionally-protected privacy rights. This is an important and well-written decision, which is well worth the read for anyone interested.

(2) LOUISIANA BIRTH CERTIFICATE/ADOPTION DECISION: Late Tuesday, April 12, the United States Court of Appeals for the Fifth Circuit, based in Louisiana, issued a shocking decision that the Full Faith and Credit Clause of the United States Constitution does not require states to issue new birth certificates for children born in their states but adopted elsewhere, if the out-of-state adoption is not of a type allowed under the birth state's laws.  (FYI, see this map for an explanation of which states are in which federal Circuit.) 

This case was brought on behalf of a gay couple from New York who adopted a child born in Louisiana.  The couple adopted the child in New York, where the adoption was completely legal.   Because Louisiana law does not allow unmarried couples to jointly adopt children, the Registrar of Births in Louisiana -- charged with issuing birth certificates for Louisiana-born children -- refused to issue a new birth certificate with both fathers' names on it (although she did offer to issue a new, post-adoptive birth certificate with one of the adoptive father's names on it if they wanted her to, since Louisiana law does not prohibit adoptions by single people).  The U.S. Court of Appeals upheld this decision by the Registrar -- overturning the lower court's ruling in favor of the couple and child -- finding that while the Full Faith and Credit Clause requires recognition of both parents as legal parents based on the New York adoption, it does not require that  Louisiana issue a new birth certificate evidencing that recognition. 

The court engaged in what I will frankly characterize as an appalling discussion of why it is okay for a state to blatantly discriminate against children adopted by unmarried couples -- as opposed to children adopted by married couples -- by refusing to provide the prior category of children with birth certificates that accurately reflect their parents.  The explanation for this discrimination -- which seems to have recreated a distinction between "legitimate" and "illegitimate" children that was ruled unconstitutional by our United States Supreme Court back in the '70's --  is that "Louisiana may rationally conclude that having parenthood focused on a married couple or single individual -- not on the freely severable relationship of unmarried partners -- furthers the interests of adopted children."  Since issuing a birth certificate apparently evidences state approval (as opposed to simply recognition) of the adoption, and since Louisiana does not "approve" of adoptions by unmarried couples, they can refuse to do so.

(3) EGG DONATION LAW SUIT: As if these two major decisions weren't enough to digest in one week, I arrived in my office this morning to word that a class action lawsuit has just been filed in the United States District Court for the Northern District of California challenging the efforts of the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) to set maximum compensation parameters for commercial egg donation.  According to the complaint, ASRM and SART are engaging in "price fixing" in violation of federal anti-trust laws.  Questions posed by the complaint include: "Whether Defendant Class Members engaged in a contract, combination or conspiracy among themselves to fix, maintain, or stabilize the price of Donor Services in the United States?"  The plaintiffs acknowledge that the purpose of the ASRM guidelines is to assure that the financial incentives young women are offered to engage in egg donation "should not be so excessive as to constitute undue inducement."

The area of egg donation is rife with ethical dilemmas.  Now we have to think about this new dilemma -- whether a "free market economy" approach to tissue donation is appropriate and, if not, how to control this process without violating anti-trust laws.  Stay tuned for updates as this plays out.

It's only Thursday.  Could there possibly be more to come??

The Circle Game

Do any of you remember the beautiful, haunting song by Joni Mitchell called "The Circle Game"? It addresses the circles of life, as children grow up and elders grow old. My friend Judy and I used to sing it to our kids when they were little. Now those kids are looking at colleges, and Judy died of breast cancer almost a year ago. "And the seasons, they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind from where we came/And go round and round and round in the Circle Game."

This song seems to capture the moment that I -- and many of my friends and colleagues -- are finding ourselves in -- watching our children grow up and out; watching our parents grow old and pass away. I am thinking these thoughts, and writing this blog, from 36027 feet, as I jet my way home from Boston on Virgin America (and thank you, Virgin, for the in-air wifi option, that allows me to use the 6.25 hours in the sky productively!).

I have been in Boston for the past week, on a true "Circle Game" journey. Here's a brief recap: Last Tuesday morning, I got up at the crack of dawn to catch a flight to New Haven, CT (via Philadelphia) to meet my son there. Travel observations of note: Contrary to predictions, I did not get assaulted in the Philly airport, even though I was wearing a cozy and attractive San Francisco Giants World Champions sweatshirt. Beyond that, the only noteworthy thing about the actual trip to New Haven was the propeller plane on which I flew from Philly to New Haven. I honestly didn't even know they still had propeller planes in service! Anyway, me and about 38 of my new best friends -- instantly bonded to each other by the shared experience of actually being expected to board a plane that looked like it had been flying pretty much non-stop since the 50's and was probably due for a long rest -- enjoyed a calm and uneventful (and blessedly short!) flight, arriving in New Haven in just under an hour. So much for the trip itself....

Why was I headed to New Haven? This is where the Circle Game part of the story begins.

My elder son is a Junior in high school, which means that it is time to start thinking seriously about where he might want to go to college. So, for spring break, we did the almost-mandatory spring-break-of-Junior-year college tour. For a variety of reasons, we ended up touring some of the New England schools of note: Columbia, NYU, Yale, Wesleyan, Brown, Harvard, Boston University, Tufts and Northeastern. Nine colleges in six days -- quite a whirlwind! But what a wonderful opportunity for both my son and me to get a sense of what college is like in 2011 -- to get a much clearer picture of the range of academic options out there -- and to start to get a read on the types of schools where he will thrive. It was exciting -- for both me and my son -- to see him on these college campuses, young and smart and healthy and excited about launching the next chapter of his life. Very much a forward-looking experience.

Our tour ended in Boston and Cambridge. Cambridge is where I grew up, and my mother still lives there. My brother currently is living in neighboring Medford, where he is getting his PhD at Tufts. I went to law school at Northeastern University in Boston. So visits to Boston tend to be trips down memory lane, as well as opportunities to catch up with people from my past who remain in the area. This time, the interspersing of college tours with visits to family and friends who remain in and around Boston, crystallized the forward-looking/backward-looking moment that I, and many of my peers, are in. My mother slipped and fell over the weekend of March 26-27, fracturing a hip for the second time in 5 months (the other hip from the one she fractured over Halloween weekend so that now, all of a sudden, what was her "bad" leg has become her "good" leg). Visits with mom this time around were in the hospital and then in rehab. Because she's 87 and hospitalized -- and therefore seriously thinking about the end of her life on this earth -- these visits involved a lot of reminiscing and active wondering about how her life story will end. Very much a backward-looking experience.

College campus -- hospital -- college campus -- rehab. Are you getting the idea??

It is an amazing experience watching the many, varied ways our elders find to exit this earth. My grandfather -- physically weak after multiple serious heart attacks -- found the gumption to get himself all the way from Cambridge, Massachusetts to a small town in the Austrian Alps where he had lived before being forced to flee by the Nazis. Once there, he died in his sleep within just a few days. My grandmother, whip smart and fiercely independent to the end, died in a fall returning to her bedroom from her bathroom at the age of 96, having walked past a portable commode, a walker and several canes -- all set out to avoid her making middle-of-the-night treks to the toilet without proper precautions. My beloved father died of what can only be described as old age, at 90, with his body and mind simultaneously drifting into a decline that afforded him the luxury of not having to comprehend that he was going while he was on his way out. My mother now appears also to be in a significant decline, but she has the misfortune that her head and her body are not fully in synch, so she still has the mental capacity to understand that she is losing her physical and cognitive abilities and is left feeling depressed and out of control.

Practicing family law as I do, I spend my days helping people navigate some of the major, vulnerable moments in their lives. Having babies. Getting divorced. This trip was a reminder of some of the other major life transitions that I don't see as much in the office -- those that come when our children are grown enough to venture out of the nest and find their own way; and those that come at the end of life, when our bodies and minds start looking for ways to finish the story. "So the years spin by and now the boy is twenty/Though his dreams have lost some grandeur coming true/There'll be new dreams, maybe better dreams and plenty/Before the last revolving year is through./And the seasons they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind/From where we came/And go round and round and round/In the Circle Game."

The Tragedy of Disrupted Adoptions

November is National Adoption Month -- "a month set aside each year to raise awareness about the adoption of children and youth from foster care." Ironic, then, that two adoption cases are making headlines for all the wrong reasons.

In Missouri, in the case of a young boy named Carlos, the state Supreme Court is being asked to intervene to set aside the adoption of a 4 year old child whose mother is an undocumented worker who was caught up in an immigration sweep at her work place and subsequently incarcerated. Although initially the child was cared for by an aunt, she was overwhelmed with the care of her own children and ended up giving him to another couple to care for in her sister's absence. This other couple subsequently surrendered him to their church to be placed for adoption, without ever notifying the mother (who remained in the United States, and easy to locate given that she was in custody) or obtaining her consent. The mother has always wanted her son, and there is no indication that she had been in any way negligent in her care of him -- the only reason she was separated from him was because she was taken into custody for being undocumented, while the child is a U.S. citizen. Now, the Missouri Supreme Court is being asked to reunite mother and son, albeit gradually through a responsible reunification plan -- ideally worked out in cooperation with the "adoptive" parents -- because he was never eligible for adoption in the first place, given that he had a fit mother who loved and wanted him.

While Missouri sorts out the Baby Carlos mess, here in California we are witnessing an intense battle between an adoptive mother and a birth father, which is taking place in two states and on national television. In the Baby Vanessa case, a birth mother placed her baby for adoption at birth, through a licensed adoption agency and with all consents seemingly in order. However, the birth mother indicated that she did not have enough information to make it possible to identify the birth father, so his consent was never sought or obtained. Now it turns out that the birth father was, in fact, known to the birth mother and he is fighting for the child. Baby Vanessa is 2 years old and has been with the same person -- the adoptive mother -- since she was born. Now, she is in danger of being removed from that home because the birth father's rights to his daughter were never terminated, and he wants her back in Ohio where he can have a relationship with her.

It is easy to take sides in these cases, and the media has certainly done so. Baby Carlos should be returned to his mother, because his mother was a loving fit parent who took good care of him for the first 6 months of his life and was torn from him through circumstances outside of her control. Baby Vanessa should stay with her adoptive mother because her adoptive mother has provided her with a loving and stable home from birth, and the father who is fighting for her has been convicted of abuse and lost custody of his other children, so is not realistically able to provide for Vanessa.

But there are broader lessons to be learned from these two stories, that consistently apply to these and other disrupted adoption cases. No matter how wonderful an adoptive home seems, no court should be allowing an adoption to proceed without making as certain as possible that any living birth parents -- or potential birth parents -- have received proper notice and had an opportunity to be heard. Do they want the children? Are they actually fit to raise the children? And where, in all of this, do the children's rights to stable, loving homes and secure attachments come into play??

At the end of the day, in these and all adoption cases, there is simply no substitute for doing things right the first time, while these babies are still young and good decisions can be made without all the drama that accompanies efforts to fix adoption disasters later. So wherever Carlos and Vanessa end up, let's all make an effort to honor National Adoption Month by recommitting ourselves to adherence to proper adoption procedures -- and to a revamping of those procedures as necessary -- to assure that children's needs are met through the adoption process with an eye toward BOTH stability for the children and fairness for the birth parents, and with a fervent hope that there will be very few more cases like the two described above.