By Sheila Pursglove
Legal News
Imagine marrying in one state, taking a temporary job in another state where your children are born, then moving back home – to find your kids are no longer viewed as children of your marriage, and a second parent adoption is necessary, to the tune of several thousands of dollars.
That’s a legal boondoggle many gay parents could confront and was an issue discussed at a December 4 roundtable on same-sex marriage convened by the Washtenaw County Bar Association LGBT Rights Section. The forum came in the wake of a 3-2 decision in November by the Sixth Circuit Court of Appeals to uphold Michigan’s ban on recognition of same-sex marriage.
The Sixth Circuit ruling has resulted in a chaotic situation in Michigan not the least of which is adoption by lesbian, gay and bisexual parents, according to section co-chairs Angie Martell and Kerene Moore.
“A growing number of children live in families with two same-sex parents, and sexual orientation is not relevant to parental ability,” said Moore, an attorney with Legal Services of South Central Michigan.
While several states allow second-parent adoption, Alabama, Arizona, Kansas, Kentucky, Mississippi, Nebraska, North Carolina, Ohio, Utah and Wisconsin limit or prohibit adoption by LGBT individuals or couples.
A PowerPoint slide showed a map of the 35 states plus the District of Columbia where marriage equality is afforded.
The Great Lakes State is in the company of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas in excluding same-sex marriage by state constitutional amendment.
“I was recently in Chicago at a Midwest meeting of the LGBT Institute, talking to an attorney from Kansas – and I couldn’t believe that Kansas recognizes same-sex marriage and Michigan does not,” said Martell, founder of Iglesia Martell Law Firm in Ann Arbor.
The PowerPoint presentation painted a dismal picture for supporters of same-sex marriage. Only two states – Ohio and Missouri – recognize out-of-state marriages of same-sex couples – and for Ohioans, that recognition is only for death certificates.
Jurisdictions providing civil unions or comprehensive domestic partnerships include California, Colorado, D.C., Delaware, Illinois, Hawaii, New Jersey, Nevada, Oregon, Rhode Island, and Washington.
Tribal nations were one of the first groups to recognize marriage equality: and include the Coquille Indian Tribe, Suquamish Tribe, Little Traverse Bay Bands of Odawa Indians, The Confederated Tribes of the Colville Reservation, Pokagon Band of Potawatomi, Iipay Nation of Santa Ysabel, Cheyenne and Arapaho Tribes, Leech Lake Band of Ojibwe, Puyallup Tribe, and Shoshone and Arapaho Tribes of the Wind River Indian Reservation.
Maine, New York, Hawaii, Maryland, and Wisconsin offer limited relationship recognition rights to same-sex couples.
Divorce for same-sex couples living in non-recognition states has many challenges, Moore noted.
“Ex-partners may be responsible for medical decisions in the event of an accident,” she said. “People may be unable to marry a new partner or, if they remarry, could be subject to criminal bigamy charges.”
Some jurisdictions have allowed non-resident couples to divorce, Moore indicated.
There are alternate pathways to separation or divorce, Martell stated. California, Delaware, D.C., Hawaii, Minnesota, Vermont and Canada have varying residency requirements in order to petition for divorce, but state courts may dissolve marriage, civil union, and registered domestic partnerships if both partners live in a state where the courts will not dissolve their legal relationship, Martell noted, adding that Vermont has other requirements to be fulfilled. Colorado and Oregon allow non-residents to dissolve their marriage or civil union regardless of which state they live in.
“Kerene and I have both had successes with divorce and custody cases, but it tends to be on a case-by-case basis, is very stressful and piecemeal, and depends on the jurisdiction,” Martell said. “Mediation is very important, especially if there are kids.”
Roundtable attendees discussed the ramifications of the recent House Committee refusal to take a vote on expanding the Elliott-Larsen Civil Rights Act to include the LGBT community.
Martell, who said the gay rights situation is similar to that of interracial marriages of years past, cited several challenges in the Michigan political landscape surrounding its refusal to include gender identity and expression.
“Gender identity and expression should be included in all non-discrimination statutes,” she said. “When someone is discriminated because he or she is perceived to be or actually is gay, lesbian, or transgender that is wrong. In a recent memo, the Department of Education echoed this when it made it clear that transgender and gender nonconforming students are protected from discrimination under Title IX, the federal law that prohibits discrimination based on sex in schools.”
Estate planning can also be complex, especially if partners are estranged from their families, as is often the case; and so can filling out financial information on FAFSA forms for a child’s college education, or filing for Social Security.
Martell and Moore noted that the Institute of Legal Education (ICLE), National Center for Lesbian Rights (NCLR) and Lambda Legal all offer excellent resources.
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