Family Law Issues

Individual and Family Law
Issues for LGBTQ Persons
Presenter:
 Mitchell Hortert

LGBT Families
 Nearly 9 million adults identify as LGBT.
 See: http://services.law.ucla.edu/williamsinstitute
 901,997 same-sex couples live in the United
States and they are represented in 99% of U.S.
counties.
 See: http://www3.law.ucla.edu/williamsinstitute/pdf/Census2010Snapshot_US.pdf
 Approximately 2 million children are being
raised by LGBT parents.
 See: http://www.lgbtmap.org/file/momentum-report-2011.pdf;
http://services.law.ucla.edu/williamsinstitute; www.askchis.org

Barriers to LGBT
Family Stability
 Children denied access to permanent families
 Children lacking legal ties to both parents
 Children at risk of losing second parent, if legal parent dies
or the parents separate
 Higher tax payments
 Little access to financial protection if a parent dies or
becomes disabled
 Unequal access to health coverage
 Can have restricted from hospital visitation and medical
leave for family care giving
 Social stigma and unwelcoming healthcare settings
See www.lgbtmap.org

States and
Same-sex Marriage
 6 States- Iowa, Connecticut, Massachusetts, New
Hampshire, Vermont and New York, and the District of
Columbia, allow gay marriage.
 4 States- New Jersey, New Mexico, New York and
Rhode Island, do not explicitly prohibit gay marriage but
have not endorsed it.
 4 States- Delaware, Hawaii, Illinois and New Jersey have
approved gay civil unions.
 In 39 States, gay marriage is specifically banned
 Source: Reuters, http://www.reuters.com/article/2011/06/25/us-gaymarriage-usa-
idUSTRE75O0G420110625

Federal Defense of
Marriage Act (DOMA)
 Sec. 3 defines marriage as a union between
one man and one woman.
 Sec. 2 allows states to refuse to recognize
same-sex marriages performed in another state.
 Denies benefits of 1,100 federal laws to married
same-sex couples, including immigration
sponsorship, social security survivor benefits,
Family Medical Leave Act protection, etc.
See 1 U.S.C. § 7 and 28 U.S.C. § 1738C

Legal Status of DOMA
 Has been ruled unconstitutional by several federal
courts and a bankruptcy court, but these are under
appeal.
 Obama administration has refused to continue
defending legal challenges to DOMA, saying it is
unconstitutional and that differential treatment
based on sexual orientation should be subjected to
a strict scrutiny legal standard.
 Congressional representatives have appointed
legal counsel to defend pending DOMA lawsuits.

Marriage Equality in PA
 Currently Pennsylvania does not have a
marriage equality law.
 According to recent polling data, 65% of
Pennsylvanians statewide support civil unions
for gays and lesbians
 Comparably, only 27% (less than half as
much) of Pennsylvanians are against such
unions

Marriage Equality in PA
 What would domestic partnership laws look like?
 Rights conferred by domestic partnership registration:
 Hospital/nursing home visitation
 Access to medical records
 Ability to consent to medical treatment on behalf of an
incapacitated partner (durable medical power of attorney)
 Ability to access medical leave benefits to care for domestic
partners and their children.
 Limited inheritance/financial power of attorney rights upon the
death of one partner (ability to execute the partner’s estate if
no other executor was appointed)
 Ability to make decisions concerning organ donation and
funeral arrangements upon the death of one partner

How LGBT Families
are Formed
 Birth of child to a biologically-related parent
 Foster Care
 Adoption
 Second-Parent Adoption
 Artificial insemination
 Surrogate parenting or egg donation

LGBT Adoption
 State laws vary regarding adoption by same-sex
couples.
 Many LGBT parents adopt a child as an individual
and then petition for a “second parent” adoption by
their same-sex partner.
 The second parent is sometimes referred to as a
“psychological,” “de facto” or “non-biological”
parent.
 Several organizations have filed to overturn bans
on adoption by same-sex couples.

Second Parent Adoption
 This occurs when the biological or legal parent of a
child or children is in a relationship with another adult
wanting to share parental rights and responsibilities.
In contrast to stepparent adoption/domestic partner
adoption second parent adoption is used only when
the parents cannot marry or become domestic
partners. The biological or legal parent consents to
relinquish sole custody of the child so that his/her
partner can become a second, legal parent.
 For example, if a lesbian woman has a child through
egg or sperm donation, then her partner may be able
to adopt that child through second parent adoption.

Second Parent Adoption
 There are important benefits to formalizing a family unit
through a gay or lesbian adoption, including:
 Allows second parent to participate in helping make decisions
concerning the child's medical care, education, and religious
upbringing
 Inheritance rights from the adopted parent even in the
absence of a specific estate plan
 Social security and other federal and state benefits in event
of death
 Guarantees custody rights if first parent dies or becomes
incapacitated
 Protects custody or visitation if the parents separate
 Provides support of two parents for the benefit of the child
 Eligibility for health benefits from both parents

Pennsylvania Court Ruling
 Ted Hoover has information about a new ruling
from a Pennsylvania court that permits a
couple to adopt a child at the same time.

LGBT Adoption
Cases
 Arkansas Dept. of Human Services v. Cole,
2011 Ark. 145, --- S.W.3d ----, 2011 WL 1319217
(court held that state ban on adoption by
unmarried couples is a violation of privacy rights
under the Arkansas Constitution)
 Florida Department of Children and Families v.
Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct.
App. 2010) (court held that ban on adoption by
gay parents violated the Equal Protection clause
of the Florida Constitution)

LGBT Adoption
Cases
 Kutil and Hess v. Blake, 223 W.Va. 711 (W. Va.
2009) (lesbian foster parents permitted to adopt
child they had fostered)
 Adoption of M.A., et al., 930 A.2d 1088 (Me.
2007) (statute that allowed married couple to file
joint petition for adoption did not prohibit a joint
adoption petition by an unmarried same-sex
couple)

Same-sex Couples’
Custody Disputes
 Family law rights for same-sex couples and their
children are being decided in state court in child
custody cases, many involving lesbian parents.
 Typically, one parent has a legal relationship to
the child due to biology or adoption.
 The non-biological, non-adoptive parent may
have social, emotional and legal ties to the child
that include being named on birth certificates,
medical power of attorney, and legal
guardianship.

Legal Documents to
Protect LGBT Families
 Will and living will
 Guardianship of children
 Co-parenting or shared custody agreement
 Powers of attorney for parenting authority,
health care decisions, financial decisions
 Domestic partnership agreement
 Living trust
 Joint titling of assets with same-sex partner
 Donor insemination agreement

Advanced Medical
Directives- 2010
 President Barack Obama is ordered that nearly all hospitals
(those who accept Medicare/Medicaid funding) allow patients
to say who has visitation rights and who can help make
medical decisions, including gay and lesbian partners.
 It should be made clear that designated visitors, including
individuals designated by legally valid advance directives
(such as durable powers of attorney and health care proxies),
should enjoy visitation privileges that are no more restrictive
than those that immediate family members enjoy.
 Guarantee that all patients' advance directives, such as
durable powers of attorney and health care proxies, are
respected, and that patients' representatives otherwise have
the right to make informed decisions regarding patients' care.

Eastern Michigan
University Case
 Ward v. Wilbanks, 2010 U.S. Dist. LEXIS 127038 (E.D.
Mich., 2010).
 Student in master’s counseling program was dismissed
for refusing to counsel a homosexual client with
symptoms of depression.
 Federal district court ruled that the school disciplinary
code had adopted professional standards and that it was
not a violation of student’s Due Process rights or Free
Speech rights to discipline her for her behavior.
 The case is on appeal to the U.S. Court of Appeals for the
Sixth Circuit. See also, Keeton v. Anderson-Wiley, 733 F.
Supp. 2d 1368 (S.D. Ga. 2010).

Discrimination
 Current Pennsylvania law provides basic legal
protection against
discrimination on the basis of race, color,
religion, ancestry, age, national origin,
handicap or disability, education and the use
of a guide dog, but not sexual orientation or
gender identity or expression.
 Amending the Pennsylvania Human Relations Act
(PHRA) to prohibit discrimination on the basis of
sexual orientation and gender identity or
expression would provide basic protection to
ensure fairness for lesbian, gay, bisexual and
transgender Pennsylvanians.

Discussion Questions
©2011 National Association of Social Workers. All Rights
Reserved.
22
 Has anything surprised you? Why or why not?
 What is the most effective way to promote
positive legislative change?
 What frustrates you the most? Why?
 Is there anything else you would like to know?

Resources
Legal Developments in LGBT Family Rights (NASW LDF Article, Sep. 2011):
 https://www.socialworkers.org/ldf/legal_issue/2011/092011.asp
Provider Refusal and Conscience Clause Controversies (NASW LDF Article, June
2011):
 https://www.socialworkers.org/ldf/legal_issue/2011/052011.asp
Gay, Lesbian, Bisexual and Transgender Issues (NASW):
 http://www.socialworkers.org/diversity/new/glbt.asp
Definitions—a primer (NASW):
 http://www.socialworkers.org/diversity/new/documents/Definitions%202011.pdf
NASW Standards for Cultural Competence in Social Work Practice:
 http://www.socialworkers.org/practice/standards/NASWCulturalStandards.pdf
NASW Code of Ethics
 http://www.socialworkers.org/pubs/code

Resources,
continued
Perry v. Schwarzenegger and other NASW Amicus Briefs:
 www.socialworkers.org/ldf/brief_bank
Same Sex Marriage Position Statement (NASW, 2004):
 http://www.socialworkers.org/diversity/lgb/062804.asp
Effects of Conservative Religion on Lesbian and Gay Clients and Practitioners,
Practice Implications (2010, NASW Press):
 http://www.naswpress.org/publications/diversity/conservative-religion.html
Affirmative Practice, Understanding and Working with Lesbian, Gay, Bisexual,
and Transgender Persons (2003, NASW Press):
 http://www.naswpress.org/publications/diversity/affirmative-practice.html
LGBT Movement Advancement Project (MAP) Reports:
 www.lgbtmap.org

Family Law Issues

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