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In the Community – 2016

2016

Instructions to Add Second Parent To Child’s Social Security Record

See the attached Social Security record instructions pdf.

Post-Election Questions:

Here are answers to the questions we are receiving repeatedly after the election, and as requested, some of our post-election thoughts and ideas as a Wisconsin lawyers who practices LGBT law:

 

  1. No, the new administration cannot invalidate your marriage.
  2. It would be next to impossible for the new administration to overturn Obergefell v. Hodges (the 2015 U.S. Supreme Court marriage equality decision). NCLR explained it well in their press release:

    “There is no realistic possibility that anyone’s marriage will be invalidated. The law is very strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. So people who are already married should not be concerned that their marriages can be taken away. To the contrary, it is important that they continue to live their lives as married couples. Looking forward for individuals who are not currently married but who may wish to marry in the future, we also think it is highly unlikely that the fundamental right of same-sex couples to marry will be challenged or that the Supreme Court would revisit its 2015 holding that same-sex couples have that fundamental right. The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is also very strong, and the Supreme Court very rarely overturns an important constitutional ruling so soon after issuing it. In addition, while the new administration is very conservative, neither Donald Trump nor anyone associated with his campaign has indicated any intention to try to turn back the clock on the freedom to marry, and the great majority of Americans now strongly support marriage equality.Please feel free to share this and thank you for supporting our families and the powerful ongoing work of NCLR, now more important than ever…”

     

  3. The new administration could, however, make the day-to-day implementation of marriage equality by federal agencies very painful for us.
  4. Religious exception legislation and regulations are very real possibilities now, which is one way the new administration could cause the pain referred to in #3 above.
  5. As we’ve always recommended, get an adoption or parentage order for your child. Do not rely on a two-parent birth certificate alone. See this. Same thing for thorough estate planning
  6. The new administration cannot undo the recent Torres birth certificate decision or affect our parentage or step-parent adoption laws. But see #3 above.
  7. The new administration cannot invalidate your adoption or parentage orders. But see #3 above.
  8. Make sure your child’s Social Security number record lists both parents as the child’s legal parents. We hope to post more practical information on this point soon.
  9. Get your child a passport now and make sure that State Department records list both parents as the child’s legal parents.
  10. Gender marker revisions to passports should be made as quickly as possible, before the wonderful State Department policy (of Secretary Hillary Clinton’s) is changed.
  11. If you have been considering filing an immigration petition for your spouse or step-child, talk to an immigration attorney immediately about filing immediately (or not at all during the new administration, depending on the type of filing).
  12. Donate regularly to Lambda Legal, GLAD, the National Center for Lesbian Rights, the ACLU, and the Family Equality Council. They are the ones who bear the enormous financial and psychological burden of our high impact cases like Wolf v. Walker, Obergefell v. Hodges, and Torres. Small monthly EFTs go a long way. These organizations will have a lot of lawsuits to file in the next few years, I imagine.

Here is another Torres update:

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:

  1. 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;
  2. You and your spouse were married at the time of the birth;
  3. Your baby was gestationally carried by one of the spouses and was conceived using artificial insemination; and
  4. 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: http://www.lawcenterwisconsin.com/the-law-center-for-children-families/lgbt-family-law/

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.

Summary of the Torres Birth Certificate Decision and our first impression of what it means for lesbian parents in Wisconsin

Here 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. federal District Court for the Western District of in Wisconsin, the same judge who decided Wolf v. Walker in 2014 (the marriage equality case).
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. 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 implied 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.
  • 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. [Isn’t that recommended if unknown, also? This is a little confusing.]
  • 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, consistent with case law in other states.
  • The court admonished the Department State 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.

EWGA’s Annual Charity Golf Outing Benefits Access Community Health Centers’ Celebrate Smiles program

Attorney Nancy Winter participated in EWGA’s Annual Charity Golf Outing on August 17th. The Law Center, S.C., was one of the many proud hole sponsors and legal assistants Jon Loye and Samantha Monson (pictured below) manned The Law Center’s table at the event. This year’s outing benefitted Access Community Health Centers’ school-based Celebrate Smiles program.

EWGA

Her Madison Half Marathon and 5K

This photo is a little belated, but on June 26, 2016, several members of The Law Center participated in the Her Madison Half Marathon and 5K. Pictured here from left to right is Tiffini Mark, Lynn Bodi, Nicole Ross, Krista Loye and Samantha Monson. Attorney Lynn Bodi won second in her age group for the 5K.

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Stand Up and Sing! for Kids

The Law Center, S.C., is one of the many proud sponsors of the “Stand Up and Sing! for Kids” event that benefits Dane County CASA.  Dane County CASA’s “Stand Up and Sing! for Kids” is a fun-filled event that features performances by local celebrities, including The Gomers (Madison’s beloved karaoke-style cover band), where the audience was able to jump up on the stage and rock out with them!  The evening also included a silent auction, in which Emily Dudak Taylor won an ebike (pictured below).  All proceeds will benefit Dane County CASA and their efforts to provide a voice to abused and neglected children in Dane County.

Emily bike

emily bike 2

Emily Dudak Taylor was elected to the Board of the Children and the Law Section of the Wisconsin State Bar

Emily Dudak Taylor of The Law Center was elected last week to the Board of the Children and the Law Section of the Wisconsin State Bar. She will serve a three-year term, starting this July. She hopes to bring her experience with immigrant children and LGBT families to the Board.

Emily is a shareholder at The Law Center. She has a special interest in LGBT issues and was the lead attorney in a recent appeal in Wisconsin about applying the marital presumption of parentage to married same-sex couples post-marriage equality. She acts as counsel to a private adoption agency, surrogacy center, and fertility clinic, and is retained frequently by counties and the State to serve as immigration counsel for children in foster care.

Special Olympics Regional Track and Field Meet

Below is Attorney Nancy Winter of The Law Center, S.C., coaching at the Special Olympics Regional Track and Field Meet on May 7, 2016 at Oregon High School.  Twenty-six chapters competed at the regional meet, including Oregon.  The Oregon Chapter will take nine athletes to State! The State Meet will take place in Steven’s Point on June 10 and 11. Good luck to Nancy and all the athletes!

Nancy has been coaching track for the Special Olympics for over 10 years.  During college, Nancy was a member of the track and field team at UW-Madison.  Her areas of law include life and estate planning, probate, real estate, business law, and tax planning and preparation.

Special Olympics Photo 2016

Attorney Emily Dudak Taylor will speak at PrideFest Milwaukee

Attorney Emily Dudak Taylor of The Law Center, S.C., will speak at PrideFest Milwaukee again this year.  PrideFest is June 10 to 12, 2016 at the Summerfest Grounds.   Emily’s panel discussion will be on Sunday the 12th from 4 to 5 pm on the Stonewall Stage.  It is entitled “LGBT Rights and Advocacy Today” and will also include representatives from Fair Wisconsin, the ACLU, GSAFE, and Diverse and Resilient.  Come join us for some fun, camaraderie, and education at PrideFest: www.pridefest.com.

Attorney Emily Dudak Taylor wrote an article in Our Lives

Attorney Emily Dudak Taylor of The Law Center, S.C., has an article in Our Lives this month.  It discusses the recent U.S. Supreme Court decision about interstate recognition of same-sex adoptions.  To read the full article go to pages 48-49 of the magazine at http://ourlivesmadison.com/wp-content/uploads/2016/05/OL541.pdf.

Emily is an attorney and partner at The Law Center for Children and Families in Madison, Wisconsin.  She practices adoption, assisted reproduction, immigration, and LGBT family formation.  She has a special passion for LGBT issues, and was the lead attorney in a recent appeal in Wisconsin about applying the marital presumption of parentage to married same-sex couples after Wolf v. Walker and Obergefell v. Hodges.  She’s also a co-author of the Wisconsin State Bar book entitled Sexual Orientation and the Law.

Attorney Lynn Bodi to Speak at the Wisconsin Family Court Commissioners Association Spring Conference on Thursday, May 19

Attorney Lynn Bodi of The Law Center, S.C. will speak about surrogacy to family court commissioners on May 19, 2016 at the Wisconsin Family Court Commissioners Association Spring Conference in Neenah, Wisconsin.  She and Attorney Richard Schoenbohm will discuss everything from parentage agreements and their enforceability, to insurance coverage for maternity expenses, to procedures and standards in court proceedings regarding legal parentage of the child born through surrogacy.

Lynn is a partner at and one of the founders of The Law Center for Children & Families in Madison, Wisconsin. She practices in the areas of assisted reproduction, adoption, and third party rights. She is also a founder and owner of The Surrogacy Center, housed in the same building as The Law Center. The Surrogacy Center is an agency that screens and matches Wisconsin carriers with intended parents from all over the world.

Attorney Nancy Winter and Dustin Brown Accept Check on Behalf of Dane County CASA

Attorney Nancy Winter of The Law Center, S.C., and Dustin Brown, accepted a check on behalf of Dane County CASA for a whopping $17,309.53. This was the amount raised for CASA at last summer’s EWGA (the Executive Women’s Golf Association). Nancy is on Board of Directors for Dane County CASA, and Dustin was the President through 2015. The Law Center, S.C., is looking forward to sponsoring this year’s EWGA charity golf outing on August 17, 2016.

CASA provides volunteer Court Appointed Special Advocates (“CASAs”) to abused and neglected children who are under the protection or authority of the Dane County Courts. CASA is a unique program in that it is directly assigned by the courts to work with some of Dane County’s most vulnerable children. Each year, CASA infuses thousands of hours of volunteer work by its highly trained CASA volunteers into the juvenile court system, and into the lives of the special children they serve.

EWGA check

Attorney Emily Dudak Taylor Will Speak at the Family Equality Council’s Maybe Baby Event

Attorney Emily Dudak Taylor of The Law Center, S.C., will speak on the Expert Panel at the Family Equality Council’s Maybe Baby event on Saturday, April 30th, at the Sheraton Madison Hotel. The event takes place from 12:30 pm until 5:00 pm, and the Expert Panel is from 1:00 to 2:00 pm. The event is designed for those who are LGBTQ and are looking to start or grow their family. During the panel, Emily will speak about the most recent case developments for LGBT families in Wisconsin, including her parentage appeal, the pending federal birth certificate lawsuit, and the recent U.S. Supreme Court Full Faith and Credit decision regarding same-sex adoptions. She will also cover post-marriage equality life and estate planning and what contracts are still recommended (Sperm Donation, Co-Maternity, prenuptial, etc.).

Please join us! Registration is free, but space is limited, so please register soon (with Family Equality Council, not our law firm). For more information and to register, please follow this link:

http://action.familyequality.org/site/Calendar?id=104324&view=DetailC:/Users/Kim/Documents/CampOutFamilyCamp

Please also see the attached flyer from Family Equality Council.

Maybe Baby WI Flyer 2016

Attorney Sara Vanden Brook to Speak at Happy Bambino on Sunday, April 17

Attorney Sara Vanden Brook of The Law Center, S.C., will be at Happy Bambino on Sunday, April 17, 2016, from 1 PM to 3 PM, as part of the workshop, The Good Divorce: Co-Parenting through Separation or Divorce. This workshop is for parents who want to learn more about the legal processes involved in separating/divorcing and strategies for successfully co-parenting while separated and/or divorced. This class is also appropriate for parents who are considering a separation/divorce. For more information and if you would like to register, please follow this link:  http://happybambino.com/coparenting.

Sara practices collaborative and other forms of divorce.  She is currently the President and a member of the board of the Divorce Cooperation Institute.

Attorney Lynn Bodi presented a webinar for the American Academy of Adoption Attorneys (AAAA)

Attorney Lynn Bodi of The Law Center, S.C., presented a webinar for the American Academy of Adoption Attorneys (AAAA) on April 14, 2016 regarding AAAA’s new Ethics Code.  She also helped draft the new ethical rules.

AAAA is a national association of approximately 340 attorneys who practice, or have otherwise distinguished themselves, in the field of adoption law. The Academy’s work includes promoting the reform of adoption laws and disseminating information on ethical adoption practices.  http://www.adoptionattorneys.org/aaaa/home

Lynn is a partner at and one of the founders of The Law Center for Children & Families in Madison, Wisconsin. She practices in the areas of assisted reproduction, adoption, and third party rights. She is also a founder and owner of The Surrogacy Center and Adoptions of Wisconsin, housed in the same building as The Law Center.

Attorney Nancy L. Winter Interviewed About Small Business Taxation

Attorney Nancy Winter of The Law Center, S.C., was recently interviewed for TDS’ Business Blog.  Nancy discusses income tax issues for self-employed individuals and small businesses, including what deductions they can claim and the advantages and disadvantages of doing so.  For example, she discusses how to treat a home office space and personal vehicles.  To learn more, please follow this link to TDS’ Business Blog: http://blog.tdsbusiness.com/tips-advice/tax-tips-all-small-business-owners-should-know/.

Nancy’s areas of practice include life and estate planning, probate, business law, real estate, and tax planning and preparation.  She is also on the Board of Dane County CASA/Canopy Center and coaches track for the Oregon Area Special Olympics.

Attorney Sara Vanden Brook Named President of The Divorce Cooperation Institute (DCI)

Attorney Sara Vanden Brook of The Law Center for Children and Families has recently been named President of The Divorce Cooperation Institute (DCI).   DCI’s mission is to help parties resolve issues and avoid costly litigation by providing family law attorneys with a model using cooperative skills, tools, and current research. Cooperative divorce is a settlement-based model of divorce, which often involves counselors and financial professionals to help with settlement, not just lawyers.  For more information, see www.cooperativedivorce.org.

Sara practices cooperative, collaborative, and other forms of divorce at The Law Center, as well as international family law, foster parent and grandparent rights, and other unique areas of law affecting children.  Sara has long been a strong advocate for children and believes in a team approach to family law to meet the needs of each family member involved a case, especially the child.

The Law Center, S.C., at Lily’s Luau for Lily’s Fund for Epilepsy Research

Attys. Kristi Baker and Lynn Bodi of The Law Center, S.C., had a great time at Lily’s Luau, which took place on January 23, 2016. The Law Center was a proud Beach Buddy sponsor and is happy to support epilepsy research through Lily’s Fund.

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