ABA Opinion on Judicial Ethics in Performing Same-Sex Marriages

The American Bar Association’s Standing committee on Ethics released a formal opinion last week on guidance for judges performing same-sex marriage: In wake of landmark decision, ABA issues guidance for judges performing same-sex marriages. Their guidance interprets the Model Code of Judicial Conduct.

The Formal Opinion 485 incorporates procedures and policies developed for judges in Ohio, Arizona, and Nebraska. The 2015 Obergefell v. Hodges decision found the 14th Amendment of the U.S. Constitution prohibits states from refusing to license marriages between same-sex individuals and mandates that states recognize marriages between two same-sex people when lawfully performed in other states.

There are judges whose performance of same-sex marriages is mandatory and others who can choose whether to perform such marriages. The opinion of the committee interpreting the Model Code of Judicial Conduct is that ethics are violated when a judge performs marriages of opposite-sex couples yet refuses to perform marriages of same-sex couples. A judge may decline to perform all marriages for members of the public, yet still do weddings for family and friend, without violating the code of conduct. But the judge has to be consistent and not discriminate in performing weddings for members of the public.

Judges must maintain their impartiality and be free from bias and prejudice. It is not enough for a judge to actually be impartial, the public must perceive the judge to be impartial also. Refusing to perform weddings based on the sexual orientation of a couple where state law authorizes such shows prejudice or partiality.

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially, and free from bias and prejudice. Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial. If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper under Rules 1.1, 2.2, 2.3(A), and 2.3(B) Model Code….”

“Model Rule 1.1 obligates judges to comply with the law. Obergefell makes clear that the U.S. Constitution prohibits state officials from engaging in discrimination and bias toward gays and lesbians in decisions related to same-sex marriage; in short, the decision establishes law with which judges must comply. Model Rule 2.2 requires judges to “uphold and apply [this] law,” and further directs that judges “perform all duties of judicial office fairly and impartially.” As noted earlier, the term “impartiality” as used in this context means “the absence of bias or prejudice in favor of, or against, particular parties or classes of parties.” Furthermore, Model Rule 2.3(A) specifically requires judges to perform their duties free from bias and prejudice. Model Rule 2.3(B) prohibits a judge who is performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status. Indeed, we are aware of no state judicial ethics opinion concluding that similar judicial code provisions permit judges who perform marriage ceremonies for opposite sex couples to refuse to perform marriage ceremonies for same-sex couples….”

“A judge may choose to perform no marriages, or to perform marriages exclusively for family and friends. If judges opt to perform marriages only for friends and relatives, however, they cannot refuse to perform same-sex marriages for friends and relatives. Again, to refuse to perform same-sex marriages for friends and relatives while performing marriages of opposite-sex friends and relatives would violate Model Rules 2.2, 2.3(A), and 2.3(B). The fact that the judge’s conduct affects a smaller group of people—that is, friends and family versus the public at large— does not change the judge’s ethical obligations….”

The opinion concludes:

“A judge for whom performing marriages is either a mandatory part of his or her official duties or an optional exercise of judicial authority violates the Model Code of Judicial Conduct by refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples. In a jurisdiction where a judge is not obligated to perform marriages, the judge may decline to perform all marriages for members of the public. A judge who chooses not to perform any marriages for the public may still perform marriages for family and friends, so long as the judge does not discriminate between same-sex and opposite-sex couples when performing marriages for family and friends.”

The American Bar Association is one of the largest voluntary professional membership organizations in the world, with more than 400,000 members.

Read Formal Opinion 485 here: https://www.americanbar.org/content/dam/aba/images/news/2019/02/formal_op_485.pdf

For more information on Obergefell v. Hodges see the Oyez site here: https://www.oyez.org/cases/2014/14-556 They have links to the oral arguments, opinion announcements, majority and dissenting opinions.

 

 

 

Will you be my LGBT Valentine?

Love is for everybody. It’s a nice thought. But sort through the greeting cards at literally any store and the chances of finding something queer-themed, or even remotely non-heterosexual, is going to be low, low, low.

It doesn’t feel nice to be left out. So, here’s a website with download-and-print Valentine’s Day cards, classic e-Card style. And you can them give out to your loved ones!

Check them out: https://www.google.com/amp/s/www.youthkiawaaz.com/2019/02/lgbt-valentines-day-cards/amp/

 

Don’t try this at home! Parental donor agreements

The topic of Sperm Donor Agreements has recently risen in discussion between same-sex couples wanting start their families using alternative reproductive methods and how the law can impact their ability to parent. Some questions have been:

  • When is a sperm donor legal?
  • Is a sperm donor a parent?
  • Can a sperm donor get rights to my child?
  • Should I memorialize in writing an agreement between my sperm donor and I?
  • What does the law say regarding sperm donors?

A Sperm Donor Agreement is a contract between the sperm donor and the intended parents. A Sperm Donor Agreement is a protective measure used to clearly identify and establish legal parentage.  For instance, although a sperm donor would technically be the biological father of the conceived child, a sperm donor agreement would establish that the donor is not the child’s legal parent and that he intends to sever all rights and responsibilities of parenthood including visitation, access, decision-making, and child support.

A recent Texas illustrates the legal ramifications of not properly securing a donor agreement between a lesbian couple and a known sperm donor. In the case of In Re P.S., a woman asked her friend to be a sperm donor so that she could have a child. Both the woman and her friend orally agreed that he would be the donor but not the father of the child if a child was conceived. The friend willingly provided his sperm and a pregnancy resulted. The child was born in August 2014. Upon the birth of the child, both the birth mother and biological father signed an Acknowledgment of Paternity form so that the biological fathers name would appear on the child’s birth certificate. The birth mother attempted to rescind this Acknowledgment of Paternity soon after.

Later, the birth mother married a woman and sought to have her spouse adopt the child. She claimed that the man was only a sperm donor and had no parental rights to contest the second parent adoption. Based on the Acknowledgment of Paternity document, the court disagreed and found the man to be the legal father of the child and denied the request for the adoption by the birth mother’s spouse. The court further granted the father visitation rights with the child and set his child support obligations.

The court rested its decision on two statutory provisions found in the Texas Family Code. First, the court considered Section 160.702 which states that a “donor” is not a parent of a child conceived by means of assisted reproduction. Furthermore, the court examined the definition of a “donor” in section 160.102(6) which defines a “donor” as an individual who provides sperm to a licensed physician to be used for assisted reproduction.

The insemination was done informally at the home of the birth mother. The father did not provide his sperm to a licensed physician but rather directly to birth mother. Because of these two factors, the father was not considered a “donor” under state law.

If the parties had the artificial insemination done through a physician’s office, the father would have been a donor under the law and would not have been entitled to parental rights.

The lesson to learn here is that you can’t handle things informally between you and a donor if you do not want the donor to be a legal parent. To qualify as a donor under the law, the donation much happen through a licensed physician. A variety of issues can arise when the sperm donor is “known” to the prospective couple and matters are handled informally. A donor can easily assert themselves in parenting responsibilities when that role is not clearly defined by agreement and law.

You can read the full case here: http://caselaw.findlaw.com/tx-court-of-appeals/1752229.html

 

Parameters of an LGBT custody case

LGBT relationships are still a relatively new construct in a legal system that has traditionally been focused almost exclusively on two-parent, opposite gendered relationships. Some courts lag behind in addressing custody issues with same-sex partners, mostly due to inexperience and inconsistency in the laws.

Because same-sex parents cannot biologically birth children together, the legal definition of who qualifies as a parent is more complex in LGBT custody cases. One partner may be the legal parent, either from biological birth or adoption. The other parent may be an emotional parent but lack the legal formalities of technical parenthood. Unfortunately, these situations are relatively simple in the context of legal custody orders – the legal parent will retain custody of the child. The secondary, emotional-but-not-legal parent probably will not be granted any legal rights to the child and will find it extremely difficult to receive any court-ordered access to the child beyond the discretion of the legal parent. The non-legal parent cannot be ordered to pay child support either.

Same-sex partners can be considered both legal parents in one of 3 scenarios:

  • Both parents adopt the child.
  • One parent is biologically the child of one parent and the other parent adopts the child.
  • Child born to a legally recognized marriage where the law recognizes the non-biological parent as a presumptive legal parent.

While some states may recognize the third option as a route to legal parenthood, Texas is not one of them at this time.  There has simply been little legal precedent to come before the Texas courts on this issue, so to press the rights of a non-biological spouse to legal parentage, a case will eventually have to push the issue to the expense of a trial and appeal.

Where two legal parents in a same sex relationship seek custody of a child, the case resembles that of a more traditional custody case, with the same issues and factors being applied.  The best interest of the child will be the overarching consideration with issues like personal relationships, employment, emotional health and stability, ability to support both parents’ relationship with the child, and the child’s preference being considered.

For LGBT parents seeking to establish court orders regarding a child, the best option in almost every situation is to reach an agreement. Compromise may not be ideal but if the agreement falls within the range of possible outcomes in the court then it is almost certainly better than protracted and expensive litigation.

If you are faced with contested litigation, do your research and understand the nuances of Texas laws. Ultimately, acknowledge whether you are willing to be the “test case” for pushing the envelope of LGBT custody rights if the situation requires it. Last, Find a legal team that has experience in the LGBT custody arena but also is expert in traditional custody cases.

 

After the Breakup: Same Sex Couples with Children

For most couples with children, a breakup in their relationship does not equate to losing their children. However, when it comes to same sex couples, particularly those who never married, there are legal barriers that prevent them from asserting their rights as parents to their children.

In a recent case out of the Fourth Court of Appeals in San Antonio, a same sex couple conceived a child through artificial insemination. A year later, the parties separated, and the biological mother (Bio Mom) of the child moved to Texas, subsequently denying her former partner (Non-Bio Mom) any access to their child.  Non-Bio Mom filed a lawsuit seeking to establish legal standing to assert her parentage through two separate channels: first, she filed for divorce based on common law marriage, and second, she sought joint managing conservatorship through the adjudication of parentage. Parentage is adjudicated when a court formally orders the existence of a parent-child relationship.

Non-Bio Mom’s case was dismissed because she lacked standing, which is a legal hurdle overcome only by satisfying specific statutory requirements—none of which were met by Non-Bio Mom’s particular set of facts. The trial court denied the existence of a common law marriage between the parties and dismissed Non-Bio Mom’s statutory claims to standing as both an intended parent and a party with actual care, possession, and control of the child for at least six months.

Non-Bio Mom’s claim as the intended parent was dismissed because the statute only applies to men claiming to be fathers.Her claim as a party with actual care, possession, and control for at least six months was dismissed because the applicable period of time had ended more than 90 days before Non-Bio Mom filed her lawsuit, and the Court of Appeals further stated that she was not entitled to “equitable tolling” of her claim (essentially an extension of the statute of limitations which would preserve Non-Bio Mom’s claim) based on Bio Mom’s representations that the parties would reach an agreement.

Had Non-Bio Mom’s facts been tweaked slightly, she may have had stronger footing to defeat Bio-Mom’s motion to dismiss her lawsuit. For instance, another provision of the Texas Family Code provides that a man is presumed to be the parent of his child he lives with the child for two years, and he represents to others that he is the father of that child. However—note the pronoun usage—the kicker here is that the “Presumption of Paternity” appears to preclude a parental presumption for mothers. While the Uniform Parentage Act (UPA) is intended to be gender neutral, Texas courts have not consistently acknowledged this concept, nor has the Texas legislature adopted gender-neutral verbiage. See Does Heather Really Have Two Mommies? 

The bottom line is that any unmarried individuals in same-sex relationships with children who are contemplating a breakup should seek legal counsel prior so they can fully explore and understand all of the potential outcomes and complications. Married individuals in same-sex relationships may also face post-breakup hurdles depending on the date of their marriage and whether they are listed as a parent on their child’s birth certificate. It is imperative that individuals seek legal counsel from attorneys who handle these types of cases regularly and understand all aspects of the law as it applies to each individual case—both from the trial court level and from the appellate level.

 

Unique challenges of same sex custody cases in Texas

The right for same-sex couples to marry, and also divorce, has been in place in the U.S. for several years now. Same-sex relationships have normalized somewhat from being a unique anomaly to a run-of-the-mill occurrence. Even in some of the more conservative counties and courts that we practice in at our firm, gay marriage is now just  marriage and gay divorce is now just divorce. Adoptions by same-sex parents are even a normal happening and not something unusual or remarkable.

Even so, the rights to custody of children may not work exactly the same for a same-sex couple as other couples. In many same-sex relationships, one spouse is the blood relation to the child while the other spouse acts as a parent in the relationship, with virtually no difference being seen by the child. But, the non-biological parent may not have any legal rights to the child in the event the relationship ends, in spite of the emotional ties.

The safest way to solidify the legal relationship between a nonbiological parent and a child of the marriage is to go through formal step-parent adoption proceedings. It is easiest to do this when the relationship is good and everyone is happy. This is also the easiest time to avoid doing these necessary steps because things look good and it is largely unnecessary. An adopted parent is legally the same as a biological parent in determining the continuing relationship between parents and child after the end of the marriage relationship.

Short of adoption, the remedies for continuing a relationship with a nonbiological child after the end of the marriage relationship are bleak. Agreement between the parents to continue access is the most obvious remedy. But when a couple breaks up their relationship, sometimes they are unwilling to see the parenting role separated from the relationship to allow such continued access. In that event, the nonbiological parent is faced with seeking to continue a relationship in the court system. However, the law heavily favors legal parents (biological or adoptive) and their ability to make decisions for their children. In fact, the standard to impose court-ordered access is so high that the law says the legal parent has the constitutional right to make parenting decisions about who can be around the child without interference from a judge or court order. The singular exception is when the legal parent’s environment would cause significant physical or emotional harm to the child. Only then can the courts intervene.

While there is a window of opportunity written in the law that in some ways presumes parentage to both spouses for a child born during the marriage, no court in Texas has applied this law to a same-sex relationship. Even in hetero relationships, this rule is rebuttable when DNA rejects the parents biological connection. It would seem this possible remedy may not actually provide any security for a nonbiological parent in a same sex relationship even once litigated in the courts.

The message, loud and clear, to same sex couples who adopt or birth children during their relationship is that both parents must be made legal parents through adoption to provide the most security for the child in the event the relationship breaks up.

Can a gay man get custody of his child?

Can a gay man get custody when exiting a heterosexual relationship? I read with interest this article Gay Parent’s Claim for Custody. The article poses the challenges facing a gay man in getting custody of a child when exiting a heterosexual relationship. Some courts do not view gay men as equal to mothers and even hetero-fathers in custody cases. Prevailing prejudices and discrimination remains with some judges.

The best interest of the child remains the prevailing standard that any judge must apply in a case regarding custody of a child. No parent should expose their children to unstable new romantic relationships or unseemly behavior. Focusing on the stability of the parent to provide a good environment for the child can overcome the prejudices that exist. For example, a partnership between two stable men in an enduring relationship may be more nurturing and reliable for the child than a woman with many relationships and no particular connection. Such an unstable relationship by the mother would demonstrate a negative aspect of love and romance to the child.

The parental bond and involvement in the child’s life will also provide a good area of evidence to help boost a gay father’s request for custody. A gay father who is involved at school and with extracurricular activities will have advantages over an uninvolved mother. Helping with homework, knowing the child’s teachers and friends, and attending to medical issues are all important factors in a custody case, regardless of sexual orientation of the parent.

The bottom line, even in conservative courts and with conservative judges, a child-centered focus of the matters related to custody of the child can overcome the prejudices that may still exist. As with any parent, regardless of orientation, the involvement in the child’s life and emphasis on the child’s wellbeing will outweigh other factors most of the time.

Equal Parent Benefits for All Couples

Suzan and Kimberly McLaughlin, a married lesbian couple, conceived a child using artificial insemination with an anonymous donor in 2011.  When the parties later separated in 2013, Kimberly began restricting Suzan’s access to the child.  Suzan filed a lawsuit seeking to be recognized as a parent that same year.  In April 2016, the trial court ruled that Suzan is a legal parent of the child under Arizona law.  Kimberly appealed.  In October 2016, the Arizona Court of Appeals affirmed the trial court’s ruling that Suzan is a legal parent of the child. Kimberly then appealed the case to the Arizona Supreme Court, who affirmed the Court of Appeals on September 19, 2017, stating that that: “[i]t would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.” Kimberly then filed a petition for writ of certiorari to the U.S. Supreme Court, which was denied on February 26, 2018.

What is the effect of the U.S. Supreme Court denying Kimberly’s petition? Well, in Arizona, the denial means that the Arizona Supreme Court’s decision stands. The denial of a petition for certiorari does not mean that the Supreme Court agrees with the decision of the Court of Appeals, only that the case will not be reviewed. This means that while the denial is significant for the parties to the case, the impact the denial may have on other cases is unclear. Basically, the denial of a petition for writ of certiorari means that the appeals court decision agrees with the current law. In this case, the Arizona Supreme Court ruled consistent with its interpretation of Obergefell by extending the right to marry to include the subsequent benefits of marriage, including parentage. Since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, many cases have recognized that married same-sex parents must be treated equally as married opposite-sex parents.  In June 2017, the U.S. Supreme Court held in Pavan v. Smith that Obergefell requires states to treat all married couples equally.  The Arizona Supreme Court’s decision in McLaughlin is consistent with settled law and should be instructive to other states considering this issue.

Read more about the case here:

http://www.nclrights.org/wp-content/uploads/2017/09/McLaughlin-v-McLaughlin.pdf

http://www.scotusblog.com/2018/01/petition-of-the-day-1299/

 

 

Lesbian Couple Disqualified from Adopting Refugee Child

So, can a lesbian couple adopt a refugee kid through Catholic Charities of Fort Worth?  Funny you should ask.

When Fatma Marouf and Bryn Esplin, both attorneys and professors at Texas A&M University, learned that there were as many as 300,000 homeless or unaccompanied refugee children worldwide, they decided to adopt or foster one.   They reached out to Catholic Charities of Fort Worth, a federally-funded agency specializing in placing refugee children, and set up an interview.  During the interview, an employee told Marouf and Esplin that the agency only adopts to families who “mirror the holy family,” and because they were a same-sex couple, they would be disqualified. (Didn’t the “holy family” initially consist of an unwed pregnant teen? I digress.)

Lambda Legal filed suit on behalf of the couple, rightfully claiming that their equal protection rights under the Fifth Amendment of the Constitution had been violated.  As stated in their complaint, “[t]here is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents.”

No valid basis and no excuse.

Read more about the case and the complaint here:

https://www.lambdalegal.org/in-court/cases/marouf-v-azar

 

Arizona: presumption of maternity upheld

The Arizona Supreme Court handed down an opinion recently finding a presumption of maternity for a married lesbian couple where the child was born during the marriage. This ruling applies the presumption of paternity for a heterosexual couple to a same-sex couple. This is what many believe the correct application of the law to be post-Obergefell. This question has not been finally decided in Texas, and a Beaumont ruling actually finds the opposite of this ruling – that the presumption of maternity does not apply to a lesbian couple.

The Arizona court examined the application of the constitutional protections from Obergefell in reconciling the paternity statutes. Their analysis follows:

Kimberly argues that the Court cannot interpret § 25- 814(A)(1) gender neutrally because doing so would effectively rewrite the statute, thereby invading the legislature’s domain. Instead, Kimberly contends that this Court must wait for the legislature to remedy this constitutional defect. This argument misperceives this Court’s constitutional role and responsibility when faced with a statute that violates the equal protection of the laws guaranteed by the Fourteenth Amendment.

To place the remedial issue in context, it is useful to review some settled constitutional principles. The United States Supreme Court’s interpretation of the Constitution is binding on state court judges, just as on other state officers. See Cooper v. Aaron, 358 U.S. 1, 18–19 (1958). When the Constitution conflicts with a statute, the former prevails. Marbury v. Madison, 5 U.S. 137, 178 (1803) (noting “the constitution is superior to any ordinary act of the legislature; [and] the constitution, and not such ordinary act, must govern the case to which they both apply”); The Federalist No. 78 at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). It is no answer to a constitutional violation in a pending case to assert that it could be remedied by legislative action. “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” Obergefell, 135 S. Ct. at 2605.

When a statute grants benefits but violates equal protection, a court has “two remedial alternatives.” Califano v. Westcott, 443 U.S. 76, 89 (1979). “[A] court may either declare [the statute] a nullity and order that its benefit not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Id. (quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring in result)). State court judges face the same remedial alternatives when a benefit statute violates equal protection. See Wengler, 446 U.S. at 153 (remanding remedial question to state court because “state judges are better positioned to choose” whether extension or nullification of a state benefit statute is more “consonant with the state legislature’s overall purpose”). This remedial choice is not confined to circumstances in which the state grants monetary benefits but instead applies to other statutory classifications violative of equal protection. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686–87 (2017) (concerning statutes conferring U.S. citizenship on children born abroad); Welsh, 398 U.S. at 361– 63 (Harlan, J., concurring) (concerning statute authorizing exemption from military service for conscientious objectors).

Which remedial alternative a court elects “is governed by the legislature’s intent, as revealed by the statute at hand.” Morales-Santana, 137 S. Ct. at 1699. In making this assessment, a court should “measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.” Heckler, 465 U.S. at 739 n.5 (quoting Welsh, 398 U.S. at 365 (Harlan, J., concurring in result)). Generally, the proper remedy is extension, not nullification. Morales-Santana, 137 S. Ct. at 1699.

Because § 25-814(A)(1) is now a constitutionally defective state-benefit statute, we must determine whether to extend the marital paternity presumption to similarly situated women such as Suzan or to nullify it altogether. Neither party here requests that this Court strike § 25- 814(A)(1). This is unsurprising because extension, as opposed to abrogation, is more consonant with the purposes of the marital paternity presumption.

For these reasons, we extend § 25-814(A)(1) to same-sex spouses such as Suzan. By extending § 25-814(A)(1) to same-sex spouses, we ensure all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.

Many lawyers interpret the status of the law for same-sex lesbian couples where a child is born during the marriage to require a Suit to Adjudicate Parentage as with other heterosexual couples. Most of the time we tell parents to do a second-parent adoption to be safe and establish legitimacy. But many experts in the field feel that this is an unconstitutional burden upon same-sex married parents that denies equal protection under the law.

Until there is a Texas case on point, it is still a good idea to cover all avenues just to be safe.

Read the opinion: http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2017/CV-16-0266-PR%20Opinion.pdf

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