PROTECTING LGBT FAMILIES IN WISCONSIN
AFTER WOLF V. WALKER AND OBERGEFELL V. HODGES
By Attorney Emily Dudak Taylor
Instructions for Listing Both Parents on Social Security Record for Child, November 11, 2016:
See the attached Social Security record instructions pdf.
Torres update, September 29, 2016:
On September 14, 2016, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin issued the decision in the Torres birth certificate case. We’ve already summarized that decision on Facebook and our website. Yesterday, however, the Judge issued the actual injunction, which implements the decision from the 14th. While the actual injunction does not affect many of our clients (because they already have two-parent birth certificates and parentage or adoption orders), it is still useful to share. It is helpful for everyone to share, to get the word out to families who this may affect.
NOTICE FROM COURT
If you are a member of a same-sex couple who meets the following criteria, you and your child are entitled to a birth certificate that lists both spouses as parents, if you do not already have one:
- You or your legally married spouse had a baby in Wisconsin between June 6, 2014 and May 2, 2016 and completed a birth certificate worksheet before May 2, 2016;
- You and your spouse were married at the time of the birth;
- Your baby was gestationally carried by one of the spouses and was conceived using artificial insemination; and
- You did not comply with the requirements of Wis. Stat. § 891.40(1).
To apply for a two-parent birth certificate under this injunction, see the attached order and notice from Judge Crabb: Torres injunction 09282016.
As we said last week, we are excited to start using the Torres decision in state court to obtain parentage orders, and avoid “step-parent” adoptions whenever possible, and along the way, help develop and smoothen the parentage process. We will keep you (and Lambda Legal) posted, as we do so around the State.
Nothing in this post should be construed as legal advice. If you wish to obtain specific legal advice, please call our office at (608) 821-8200.
Torres update, September 15, 2016:
Below is a summary of the Torres birth certificate decision from yesterday and our first impression of what it means for lesbian parents in Wisconsin:
Last spring, Lambda Legal filed a class action lawsuit against the Wisconsin Department of Health Services, i.e., the Vital Records Office, after Vital Records refused to issue a two-parent birth certificate to a married lesbian couple who conceived their child through artificial insemination (“AI”) using donor sperm and whose child was born during their marriage. (This was before Vital Records starting listing lesbian spouses/non-biological parents as “Father” in approximately March 2016.) Lambda Legal argued that the refusal violated the equal protection and due process rights of the couple at issue and similarly situated couples, i.e., the class. The decision was issued yesterday by Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin, the same judge who decided Wolf v. Walker in 2014 (the marriage equality case). The decision is attached: Torres Order dated 9-14-16
The 20-page decision comes down to this:
- The court refused to decide the issue of whether the marital presumption of paternity/parentage applies to married lesbian couples, for a technical, procedural reason. The marital presumption is a statute that says a husband is presumed to be the legal father of any child born to his wife during marriage. Lambda Legal and our firm have argued that the presumption must be ungendered after Wolf and applied equally to all married couples. The court declined to address the issue directly. It did, however, imply that it thought the presumption should not apply to same-sex couples when AI is used, because the presumption should not apply to any couple (even a different-sex couple) when AI is used. In other words, the court suggested that when AI is used to conceive a child by anyone (even a different-sex couple), the marital presumption should not apply, the AI statute should.
- The court declared that the AI statute must be applied to all married couples equally. This is the big holding of this decision. Therefore, if a married lesbian couple conceives a child through AI under the supervision of a doctor and the spouse consents in writing to the AI, then the non-biological parent must be listed on the birth certificate as the second parent. When this “writing” must be signed by the non-biological parent was not specified by the court, nor is it specified in the statute, so arguably it can be before or after conception. We recommend that it become standard practice to sign the writing prior to conception and to be legally married at the time of conception. We plan to talk to the fertility clinics we work with, to make them aware of this recommendation. We already have forms for this that we use for our clients.
- This means that for married couples who do not comply with the AI statute (same- or different-sex), they must adopt if they want a two-parent birth certificate. They cannot rely on the marital presumption of paternity/parentage as a back-up. As a result, couples should be aware that if they conceive their child at home and not under the supervision of a physician, it appears they will have no choice but for the non-biological parent to adopt their child.
- The court did not distinguish between known and unknown donors, nor does the AI statute, but if a known donor is used, it is strongly recommended that a physician oversee the AI. Some clinics are willing to do this without freezing and quarantining the sperm. When an unknown/anonymous donor is used, a clinic is already always involved, as the sperm is frozen and shipped from a sperm bank.
- The court did not address whether the AI statute covers IVF, leaving the argument to be made case-by-case that it is covered as a form of “artificial insemination.” We will certainly be making this argument, as we have been and consistent with case law in other states.
- The court admonished the Department to update its forms soon and make it clear to couples (and Vital Records employees) how to comply with the AI statute, to avoid further lawsuits.
It is not yet known whether the State will appeal this decision, or whether Lambda Legal will appeal parts of the decision, for example the sections on the marital presumption of paternity/parentage.
Do you still need a court order, even if you are issued a correct Parent/Parent birth certificate under this ruling? Unfortunately, the answer is yes, although the court order should not need to be an adoption order. We will now attempt to use the Torres decision (pending any appeal) to hopefully obtain quick and easy parentage orders through the AI statute (when the couple complies with the statute, that is). If the couple does not comply with the AI statute, a “step-parent” adoption will be the only option for a court order.
The reason court orders are still recommended is “portability of judgment.” The couple needs to be able to travel outside of Wisconsin and know that their joint parentage will be respected and recognized. The couple also needs to be assured that if the Legislature changes the law, their parentage has been reduced to court order and finalized under the current law. You cannot have those assurances with just a birth certificate. You need a court order to have finality and receive Full Faith and Credit under the U.S. Constitution. This is a bitter pill, but the legal consensus on this issue is wide and national. The National Center for Lesbian Rights issued an advisory on this issue of portability in 2015, which can be found at http://www.nclrights.org/wp-content/uploads/2015/01/Protecting-Your-Family-After-Marriage-Equality.pdf.
We feel even more strongly about this recommendation since the U.S. Supreme Court decided the same-sex adoption case of V.L. v. E.L. on March 7, 2016. The issue presented was whether Alabama had to recognize a Georgia adoption by a non-biological parent in a lesbian artificial insemination case. The Court answered yes, that Full Faith and Credit applies to the adoption order, and that the adoption order and resulting equal parental rights must be recognized by Alabama, even if the state disagrees that same-sex couples should be allowed to be equal legal parents. The same should apply to a parentage order.
We will keep you (and Lambda Legal) posted, as we attempt to implement this ruling throughout the State.
Nothing in this post should be construed as legal advice. If you wish to obtain legal advice about this decision, please call our office at (608) 821-8200.
As of June 10, 2016:
Wolf v. Walker is the federal lawsuit by the ACLU that brought marriage equality to Wisconsin in the summer of 2014. The decision became final on October 6, 2014.
Obergefell v. Hodges is the U.S. Supreme Court case litigated by GLAD and others that brought marriage equality to the entire United States on June 26, 2015. Together, the two cases require the following:
- Same-sex couples must be allowed to marry in Wisconsin and every other state.
- Out-of-state marriages must be recognized in Wisconsin and every other state.
- The rights/benefits and responsibilities of marriage must be applied equally to same- and different-sex couples.
- All of this must happen right now, not later after additional policy debate, litigation, or legislation.
These two cases have dramatically changed Wisconsin law as applied to same-sex couples. Below is a summary of the protections now available to same-sex couples and their children in Wisconsin. Also below is a summary of recent and currently pending cases, which could affect these protections in the coming months. Wisconsin family law is still very much in flux following marriage equality and trying to adapt.
The marital presumption of parentage is a statute that says a husband is the legal parent of a child born to his wife during the marriage, automatically by operation of law at birth. This is how a husband becomes a legal parent and appears on the birth certificate by simply signing a form at the hospital. Wisconsin also has a subsequent intermarriage provision, providing that if a couple has a child during their relationship and then subsequently intermarries, the husband is presumed to be the child’s legal parent as if the child was born during the marriage.
There is also a statute in Wisconsin that says a husband is the legal parent of a child conceived by his wife during the marriage, if the child is conceived with donor sperm via physician-supervised artificial insemination and the husband consents in writing to the insemination.
Post-Wolf and Obergefell, it is our firm’s position that these statutes must be ungendered and applied equally to married same-sex couples, just like other benefits of marriage such as filing joint income tax returns. Through one or more of these statutes, after Wolf and Obergefell a same-sex spouse should be declared – or really, confirmed – to be the legal parent of the biological child of their spouse. Since Wolf and Obergefell, our firm has obtained court orders declaring same-sex spouses to be equal legal parents based on these arguments, throughout Wisconsin, not just in supposedly liberal counties. In addition, birth certificates have been revised by the Wisconsin Vital Records Office to list both parents as “Parent/Parent” pursuant to these orders.
In fact, Vital Records has been issuing birth certificates right after birth without a court order, listing non-biological parents as “Father,” since approximately March 2015. Although Vital Records will not officially admit it, it is on the basis of these statutes that these birth certificates are issued. (See the section below on “Portability of Judgment” regarding why it is still strongly recommended that you obtain a court order via parentage or adoption, even if the non-biological parent appears on the birth certificate.)
Parentage is not a step-parent adoption, although it achieves the same end: equal legal parentage cemented in a court order. This has been a common strategy for lesbian couples who conceived their child together using donor sperm.
With a few exceptions, The Law Center currently recommends against filing for parentage in state court, until the Torres lawsuit by Lambda Legal is decided in federal court. See below for more about the Torres case. This is because on November 4, 2015, the Wisconsin Court of Appeals issued a decision in our marital presumption appeal – the P.L.L.-R. case – and held that Wolf and Obergefell do not necessarily require equal application of the parentage statutes and that if a couple wants to have the statutes apply to their family, they must file a lawsuit in a certain public way, notice the Attorney General, and fight that office likely all the way up to a likely unsympathetic Wisconsin Supreme Court. We do not recommend this course of action right now. Instead, we are watching Torres closely and finalizing step-parent adoptions. There are a few exceptions to this general rule, too nuanced to explain in this handout; one exception may be developing for couples who conceived their child during their marriage with anonymous donor sperm under the supervision of a physician (and reside in a gay-friendly county). This exception is still evolving and just came about in May 2016. You should talk to an experienced LGBT lawyer before pursuing this exception.
Step-parent adoption is now available to same-sex couples in Wisconsin after Wolf and Obergefell. Step-parent adoption is the adoption of a child by the spouse of the legal parent. The legal parent’s rights are not terminated during this type of adoption. Instead, the “step-parent” comes onto the rights of the legal parent and the couple begins to share parental rights of the child. A step-parent screening is required in Wisconsin before a step-parent adoption can be finalized. The screening is completed by an adoption agency and involves completing questionnaires, background checks, and a home visit. It is not a full home study, but it is not insignificant. A screening should not be required in a parentage matter, on the other hand. Birth certificates are being revised by Wisconsin Vital Records to list both parents pursuant to step-parent adoption orders. A couple must be married to complete a step-parent adoption.
Historically, and by lay definition, step-parent adoptions have been reserved for those who are parenting a child from a previous relationship. Nevertheless, step-parent adoption is a means to the end of equal legal parentage, if the couple can tolerate the concept and the screening. In this way, it is a “confirmatory” adoption for couples who have conceived their child together. Step-parent adoption also appears to be the path of least resistance in certain counties following Wolf and Obergefell, versus parentage. Even though it is based on the same exact ungendering of the statutes argument, step-parent adoption is definitely less controversial than parentage.
This is a common strategy for lesbian couples who conceived their child together using donor sperm. It is also appropriate in true step-parent cases, i.e., when raising a child from a previous relationship.
Second-parent adoption is a step-parent adoption for a couple who is not married. This type of adoption is not yet available in Wisconsin and would likely require a new law before it could become available in Wisconsin. Right now, in Wisconsin, to adopt your partner’s biological or adoptive child, you must be married.
Joint adoption of a child by a same-sex couple is now also possible in Wisconsin after Wolf and Obergefell. This type of adoption is different from a step-parent adoption. A joint adoption refers to a couple adopting a child together from foster care or in a private adoption agency placement. Both parents adopt at the same time, from the outset. Wisconsin Vital Records is also recognizing these types of adoption orders and revising birth certificates appropriately, to list both parents thereon as “Parent/Parent.”
This is a common strategy for gay male couples adopting through a private agency, and any couple adopting from foster care. Same-sex couples, if married, should no longer be made to “choose” which one of them will adopt their child from an agency or foster care.
Portability of Judgment in ART Cases
Even if a couple is married and the non-biological parent is listed on the child’s birth certificate, the couple should still obtain a court order confirming the non-biological parent’s legal parentage. The reason is to obtain “portability of judgment.” The couple needs to be able to travel outside of Wisconsin and know that their joint parentage will be respected and recognized. You cannot have that assurance with just a birth certificate. You need a court order to receive Full Faith and Credit under the U.S. Constitution. This is a bitter pill, since husbands are not advised to do the same, but the legal consensus on this issue is wide. The National Center for Lesbian Rights recently issued an advisory on this issue of portability, which can be found at http://www.nclrights.org/wp-content/uploads/2015/01/Protecting-Your-Family-After-Marriage-Equality.pdf.
We feel even more strongly about this recommendation since the U.S. Supreme Court decided the same-sex adoption case of V.L. v. E.L. on March 7, 2016. The issue presented was whether Alabama had to recognize a Georgia adoption by a non-biological parent in a lesbian artificial insemination case. The Court answered yes, that Full Faith and Credit applies to the adoption, and that the adoption and resulting equal parental rights must be recognized by Alabama, even if the state disagrees that same-sex couples should be allowed to be equal legal parents. The short and sweet and unanimous decision speaks to the strength of this holding. We should all rest a little easier about the issue of out-of-state recognition of our court orders.
We also recommend obtaining a court order not just for geographic portability, but also for portability in time. If a couple rests on a birth certificate, and the legislature changes the law of parentage in two years, ambiguity would result. Only a court order would freeze time and clearly survive changes in the law.
Guardianship remains an option to protect an LGBT family in Wisconsin, although its appropriateness is questionable now that equal legal parentage can be achieved. A guardianship is a court order that establishes a legal relationship between a child and an adult, and may be used to give a non-legal parent the right to make day-to-day decisions about the child. A guardian can make educational and medical decisions for the child, and often, depending on the terms of the policy, can enroll the child on the guardian’s health insurance plan. A guardianship does not, however, make the guardian a legal parent, and it can be terminated by the legal parent at any time so long as the legal parent is fit.
A guardianship can be useful for a couple that, for some reason, cannot marry. Marriage is not required for a guardianship.
A Co-Parenting Agreement is the foundation of an LGBT-specific life and estate plan involving children. It is a contract between the parents that states their intentions and commitment to co-parent, stipulates to fact (e.g., “we conceived the child together”), outlines their plan regarding parentage, custody, placement, and support of the child, and often binds the parties to alternative dispute resolution within a set of standards devised by GLAD and NCLR. The contract is useful in parentage, adoption, and guardianship proceedings as an exhibit, as well as upon dissolution of the relationship, death, or incapacity. It is also referenced throughout the couple’s life and estate plan to strengthen provisions such as nominations of guardian. Ideally, these agreements are signed prior to the child’s conception or birth. Co-Parenting Agreements are particularly important in co-maternity pregnancies (one’s egg, the other’s uterus). They can also act as a safety net, in the event a parentage or adoption order is not being recognized and respected.
Sperm Donation Agreement
A state-specific Sperm Donation Agreement is essential for couples in Wisconsin who use known sperm donors to build their families. This is a contract between the sperm donor and the intended parents that makes clear that the intended parents, not the donor, will have exclusive rights to and responsibilities for the child. This contract also provides protections for the donor, for example by stating an intent to release him from liability for child support and to waive claims against his estate at his death. This contract should be in place before the sperm is exchanged, much less used. In addition, when a known sperm donor is used, it is recommended that any parental rights he may have be terminated as part of any parentage or adoption proceeding.
Life and Estate Planning
Life planning documents address illness and incapacitation. Estate planning documents address death and assets. All of these documents protect you, your partner or spouse, your children, and your family as a unit. They should be executed even if you do not have children or many assets. If you fail to make these decisions, the legal system will make them for you. A typical life and estate plan for our families includes: a Will, a Minor Support Trust, various deeds, beneficiary designation forms, a Nomination of Guardian for Minor Child, a Parental Power of Attorney, Powers of Attorney for Health Care and Finances, a Living Will, health care facility visitation authorizations, HIPAA releases, and if necessary, a Revocable Living Trust. There are also new marriage-based tax planning devices available to same-sex couples after Wolf and Obergefell and the 2013 case of United States v. Windsor (which struck down the federal Defense of Marriage Act, “DOMA”). Our firm helps couples navigate these new benefits of marriage within their estate plan, and can even help prepare your tax returns and amend past returns if advisable.
Marital Property Agreements and Divorce
Same-sex couples now have the protections contained in Wisconsin’s divorce law and marital property regime. Within that regime is the right to alter that regime in a Marital Property Agreement (usually called pre- or post-nuptial agreements). These contracts address how income and assets will be classified during the marriage, how expenses will be paid, joint ownership of a home or other property, and support rights to maintenance/alimony and property division upon divorce. Pre-nuptial agreements are recommended for all couples, no matter sex or sexual orientation, especially when the spouses come to the marriage with premarital assets or when there is a stay-at-home parent and sole breadwinner division of labor.
Pending Appeal of Torres
Torres v. Rhoades is a federal class action filed by Lambda Legal in May 2015. This lawsuit puts forth the same marriage-based parentage and ungendering arguments described above, and seeks birth certificates from Vital Records for certain children born during same-sex marriages. The Wisconsin Attorney General is opposing the case. The pace of this case has been very slow, and the widespread usefulness of a positive result is becoming questionable.
In addition to Torres, more and more lawsuits are being filed around the country seeking to have the martial presumption of parentage apply to married same-sex couples and the birth certificates of their children. The majority have been successful. Unfortunately, they are not binding in Wisconsin. Wisconsin has proven itself resistant to post-Wolf and Obergefell change, at least under current leadership.
Evaluating Your Options
Deciding how to proceed involves evaluating a variety of factors, including your family’s needs, wishes, and the state of these evolving laws. The first step towards making a plan is to meet with an attorney experienced in LGBT law. We practice statewide and offer a flat fee initial consultation (in person, telephone, or Skype) to explain these legal options in more detail and to help you develop a strategy to protect your family. To set up an initial consultation, please call our office at (608) 821-8200.