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Gay and lesbian couples are increasingly likely to have children. Approximately one in five of male, and one in three of female, same-sex couples are raising children together. Legal acknowledgement of these parental relationships is growing, through increasing recognition of second-parent adoptions, uniform parentage declarations, and de facto parenthood. And couples joined in gay marriages in Massachusetts, in civil unions in Vermont, and in domestic partnerships in California now have many of the same rights of legal parenthood as other marital couples. But what is the status of children born to a couple who have entered into a gay marriage, civil union, or domestic partnership if they move to a state that does not recognize that status? Approximately 40 states have statutes or constitutional amendments banning gay marriage. And in some states, including Virginia, there is legislation that extends beyond gay marriage, voiding civil unions or domestic partnerships that have been entered into in other states. Moreover, the federal Defense of Marriage Act provides that “no state is required to give effect to any public act, record, or judicial proceeding of another such organization with respect to a relationship between persons of the same sex that is treated as a marriage under the laws of such other organizations or a right or claim arising from such relationship.” The intersection between these statutes and the realities of gay parenting creates complicated legal issues. The problem arises most acutely when a couple, joined in a legal relationship through one state’s law, asks another state to intercede in a custody dispute. Not only are the first state’s laws frequently pitted against the laws of the other state, but also the constitutionality of federal and state defense-of-marriage statutes are called into question under the full faith and credit clause of the federal Constitution. Matters are complicated further with the question of how a child’s best interest can be served in this intersection of constitutional issues. THREE STATES, TWO RESULTS This intersection of legal forces is more than hypothetical. Two lesbian couples are currently caught in such litigation, with all the pain that entails. The first case involves Janet Jenkins and Lisa Miller, who were romantically involved from 1998 until 2003. For most of their relationship, the couple lived in Hamilton, Va., although in December 2000, Janet and Lisa traveled to Vermont to enter into a civil union. In April 2002, Janet and Lisa had a daughter, Isabella, through artificial insemination. Though it was Lisa who carried Isabella to term, the women worked in concert to select a sperm donor and to raise Isabella. A few months after Isabella’s birth, the family moved to Fair Haven, Vt. Lisa and Janet’s relationship ended in mid-2003, and Lisa returned to Virginia with Isabella. In November 2003, Lisa began a legal proceeding in Vermont to dissolve her civil union to Janet. As part of her lawsuit, Lisa asked the Vermont courts to grant her custody over Isabella and to compel Janet to pay child support. In June 2004, the Vermont Family Court issued an order that awarded Janet visitation rights in both Vermont and Virginia. Notwithstanding the Vermont order, on July 1, 2004, the date that Virginia’s Affirmation of Marriage Act took effect, Lisa filed a second suit concerning Isabella, but this time in a Virginia court. Frederick County Judge John Prosser held that he had jurisdiction to hear the case and, in October, granted full custody to Lisa, reasoning that, legally, Janet was no more than a friend to Isabella. With this Virginia ruling in her favor, Lisa returned to Vermont and asked Family Court Judge William Cohen to give full faith and credit to the Virginia decision. Judge Cohen rejected the request and denied Lisa’s bid for permission to appeal. Lisa’s refusal to comply with the visitation terms of the Vermont order led to the issuance of a Sept. 2, 2004, contempt order against her by the Vermont court. In November, Judge Cohen ruled that Janet has all the same rights over Isabella as any other legal parent, reasoning that couples joined in a civil union should be treated no differently than married couples who choose to conceive a child through artificial insemination. Cohen explicitly ruled that it was in Isabella’s best interest for her to have “two mommies.” Proceedings are ongoing in both Virginia and Vermont. The second case, which has been less procedurally complicated, is in Utah, where Cheryl Pike Barlow, the birth mother, now opposes her former partner’s involvement in the child’s life. Keri Lynne Jones had helped select the sperm donor and had participated in raising their girl. In 2001, when Cheryl was five months pregnant, she and Keri were joined in a Vermont same-sex union. The couple broke up when the girl was 2 years old. In December 2004, Utah state Judge Timothy Hanson granted Keri visitation rights, finding that the child would be better off with more people raising her. He also cited the parent-child relationship Keri had with the girl before the couple broke up. The Utah Court of Appeals denied a motion to stay the visitation order. Cheryl’s attorney appealed to the Utah Supreme Court, which has granted certiorari to hear the case. A LEGAL PARENT? There are three different, albeit interrelated, legal issues in these two cases. First, is the partner of the biological mother a “legal parent” or parent by estoppel who is entitled to seek custody and visitation? Custody disputes typically occur between the two legal parents, and the general standard that courts apply is “the best interest of the child.” If there is a dispute over a child between a parent and a third party, then the parent must typically be proved unfit before custody can be awarded to a nonparent � although this distinction is starting to blur as lesbian and gay partners seek to establish parental rights even without legal parenting status. The Vermont civil union statute, which is implicated in both cases, provides that the “rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.” The extent to which this parentage provision will protect same-sex parents turns on the interstate recognition of gay marriages, civil unions, or domestic partnerships. Thus, the second issue is: Can state and federal defense-of-marriage statutes overcome the presumption of full faith and credit? This is a constitutional question that the federal courts have not yet resolved. Finally, the third issue concerns cases in which there is litigation both in the state where the partners entered into their relationship and in a second state. In such cases, which state should have jurisdiction? Under the Uniform Child Custody Jurisdiction and Enforcement Act, currently in effect in 40 jurisdictions (including Utah, Virginia, Maryland, and the District of Columbia), only the child’s “home state” has jurisdiction to decide custody. The home state is defined as, “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” And the federal Parental Kidnapping Prevention Act supports the home state jurisdiction, requiring that there be full faith and credit given in other states to a home state’s decree. AVOIDING THE MESS The Miller-Jenkins and Barlow-Jones cases will provide at least preliminary answers to these complicated questions. But for gay couples and the attorneys who advise them, prevention, rather than litigation, may be the best way to avoid seeing the facts of one’s life turned into the kind of complicated legal scenario you find on a law-school exam. Ideally, the parenthood status of couples in civil unions, domestic partnerships, or same-sex marriages should be respected in all states, pursuant to doctrines of full faith and credit or comity. Yet as the Virginia case shows, this respect is not inevitable. Regardless of where they live, however, gay and lesbian couples who have children together have a variety of options to ensure that each of them will continue to have custody or visitation rights with respect to their children. These rights can be protected even if they move to another state, if their relationship ends, or if one or both of them is incapacitated. One option in many states is second-parent adoptions, whereby a child born to one parent is adopted by the nonbiological or nonlegal other parent. The legal parent, who does not lose any of her rights and responsibilities, must give consent. Florida is the only state that expressly prohibits individuals who are gay or lesbian from becoming adoptive parents. (The statute has been challenged as unconstitutional, but the Supreme Court recently denied certiorari on the 11th Circuit ruling upholding the statute.) In addition, Utah prohibits anyone who is cohabitating in a relationship outside marriage from adopting, and Mississippi prohibits “adoption by couples of the same gender.” In all other states, lesbian and gay individuals are statutorily eligible to adopt. There have been gay and lesbian second-parent adoptions in Maryland and the District. In California, gay and lesbian partners can both be named on the child’s birth certificate through a pre-birth judicial declaration. In theory, such adoptions or parental designations should be recognized in other states. In practice, however, judicial reaction in other states to openly lesbian, gay, and bisexual adoptive parents ranges from supportive acceptance to overt hostility. And judges in some states have ruled against same-sex adoptions: Colorado, Nebraska, Ohio, and Wisconsin courts have held that second-parent adoptions are not permissible under their state adoption statutes. In jurisdictions where second-parent or joint adoption is not available, lesbian, gay, and bisexual parents can attempt to protect their relationship with their children through a variety of privately executed documents: parenting agreements, wills, guardianship agreements, authorizations to consent to emergency medical treatments, and similar documents. Other planning issues arise if one parent is incapacitated and the other parent has no legal rights to the child, or if both parents are incapacitated. To guard against these contingencies, each parent can take advantage of medical consent authorizations or other state mechanisms permitting a parent to appoint an agent to make medical decisions on behalf of a minor in the event of the parent’s incapacity. In states with a standby guardianship statute or other provisions relating to the guardianship of minors, each parent can provide that the other is responsible for the child, or they can choose a third party. Finally, each should appoint the other as the testamentary guardian of the minor’s person in the event of death. PARENTS BY ESTOPPEL Despite these legal arrangements, if the couple dissolves their relationship, the rights of the nonbiological mother could still be in jeopardy, depending on whether the state where they live will recognize the agreements. A number of states have shown a willingness to do so. In some states, gay and lesbian partners have been recognized as de facto or equitable parents by virtue of their involvement with their children and have been able to sue for visitation rights. In Rhode Island, a family court decided that there was a de facto parent relationship between a woman and her nonbiological child, and thus enforced a written agreement between the biological mother and her ex-partner that allowed the former partner to visit the child. And the American Law Institute’s Principles of Family Dissolution recognize the status of a “parent by estoppel.” Individuals who have entered into a co-parenting agreement with the legal parent and have acted as a parent since the child’s birth, can be recognized as parents by estoppel, where such designation is in the child’s best interests. A parent by estoppel has the same rights to custody and visitation as a legal parent. But contracts and ALI recommendations go only so far. Ultimately, states will need to address this legal problem. In states that allow same-sex marriage or provide that civil unions and domestic partners should be treated like married couples for parenting purposes, these statutes could be amended to provide greater certainty for parental authority. These states should provide some method for judicial recognition of parenting relationships, which should help ensure that other states will, under the full faith and credit clause, accept such relationships. Legal recognition of both parties as parents avoids the contentious issue of the interstate recognition of gay marriages, civil unions, or domestic partnerships. One statutory reform might mandate the automatic issuance of birth certificates with both same-sex parents’ names. A second reform could require the automatic issuance of a certificate of adoption when a child is born into a same-sex relationship or an automatic declaration of parentage. With private contracts and legislative action, the special legal problems facing gay and lesbian parents can be mitigated, and their legal status and rights as parents can be affirmed. And that is certainly in the best interests of their children. Naomi Cahn is a professor at George Washington University Law School who has written extensively about adoption and family law. She can be reached at [email protected].

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