Modern Families, Outdated Laws
Spoken Remarks from Polly Crozier on April 24, 2019
Senior Staff Attorney
Thank you for coming today. I am looking forward to talking with you about some of the family law work I am doing at GLAD.
First – a little context:
Family law work has been at the heart of GLAD’s advocacy since its inception over 40 years ago. I was recently reading a 1980 case that GLAD was involved in called Bezio v. Patenaude. In that case, a young lesbian mother fought to get custody of her children back from a guardian. The trial court did not think that her homosexual lifestyle was appropriate for her children. The Supreme Judicial Court reversed – holding that her sexual orientation had no relation to her ability to parent and this mother wasn’t unfit simply because she was a lesbian.
These early GLAD cases were about protecting our relationships to our children. About showing the world that LGBTQ people are just like everyone else.
Later, of course, came the marriage equality cases culminating in GLAD’s case Obergefell v. Hodges, in 2015, at the Supreme Court of the United States (SCOTUS) that ushered in marriage equality throughout the United States. This was an important and foundational win for our families – that we deserve equal treatment under our marriage laws. It was swiftly followed by another important SCOTUS case, Pavan v. Smith, in 2017, which clarified that the mandate of equal treatment applies to state family-law rules related to children. Despite these enormous gains for marriage equality and attacks on our families keep coming at us from all directions, particularly when it comes to our parent-child relationships when so many of those relationships are based on conduct and intention and not on genetic connection. We remain vulnerable. This is why family law work remains critical and central in the movement for LGBTQ equality.
Family law work focuses on protecting our core relationships and focuses on the most vulnerable in our community — people of color and people living in poverty who face multiple layers of discrimination in our systems.
GLAD maintains a robust family law docket and is a leader in the arena of family law. Along with my colleagues Mary Bonauto and Jennifer Levi, I have the honor and privilege of doing a considerable amount of family law work at GLAD. I handle intakes from community members at their most vulnerable and scared — about to welcome a new baby and needing help to protect their relationship, ending a relationship and scared a partner will cut off access to a child, facing the state removing their child from their home and terrified they will lose that child forever.
The right to parent your child is one of the oldest and most important constitutional rights. It is easy to understand why. The parent-child relationship is one of the most important relationships in society. It is a relationship of unconditional love and a source of protection and stability for children. Securing these parent-child relationships is a focus of my work — through litigation and through legislation. I want to walk you through some cases I have been working on so you all have a sense of the issues. And then I will describe some of the legislative work that aims to address these issues broadly and proactively.
In one case, I represent a married same-sex couple who had a child through a known donor and at home insemination. Soon after the baby was born, the donor filed in court to establish himself as a parent and to strip the non-biological, marital mother of her parentage. The marital presumption of parentage remains a strong presumption, but this donor is effectively arguing to eradicate the marital presumption and to privilege his genetic connection with the child over the integrity of the marital family. The trial court agreed with GLAD and determined that our clients were the legal parents, but the donor appealed. I argued part of that appeal in March, and we recently learned that our clients have prevailed and that the donor will not be allowed to move forward with his appeal. This case is a reminder that the marital presumption is more vulnerable for LGBTQ parents because of the lack of genetic tie between the spouse and the child.
In another situation, a non-biological mother and her partner conceived their child using a known donor and at home insemination when they were unmarried. The baby was born early, and they married just six days after birth. After birth, the non-biological mom was the child’s primary parent and the birth mom struggled with mental health issues. When the child was three, the parties separated. The Department of Children and Families (DCF) later removed the child from birth mother’s home. DCF would not recognize the non-biological mom as the child’s other parent. He has her name (he is a Jr.), she’s always cared for him, she is a presumed parent under case law, but she isn’t listed on his birth certificate because he was born in a different state. DCF wouldn’t allow the non-biological mom to participate in court hearings or have a lawyer as other parents have. GLAD stepped in to push for her to get appointed counsel and allowed to participate in proceedings about her son. I’m working with her court-appointed lawyer to make sure he has the tools he needs to establish her as a legal parent and to ensure she regains custody of her son. This case is emblematic of the struggles of non-biological parents to get appropriate legal recognition when statutes are outdated.
These are just two examples of cases that highlight important gaps in our laws. GLAD has worked so hard to fill so many gaps — we’ve had major wins in recent years for parentage in Vermont, Rhode Island, New Hampshire, and Massachusetts. But holes remain. And we will continue to fight through litigation. But we also are working proactively on legislative reform. We need clear laws that state who is a parent and how to establish that parentage, and those laws must treat LGBTQ couples and their children equally. This is a national movement and a national call to action.
In 2015, my colleague Mary Bonauto worked in Maine to help pass a comprehensive update to parentage laws in that state.
In 2017, the Uniform Law Commission that recommends model, nonpartisan legislation for states to enact, issued the 2017 Uniform Parentage Act (UPA) which, among other things, recommended states enact provisions that ensure LGBTQ parents are treated equally post-Obergefell. GLAD’s work on legislative reform is part of this national movement. I currently serve on the national UPA enactment committee.
In 2018, I collaborated in efforts in Vermont to update their parentage code. In May of last year, the Vermont Parentage Act (VPA) passed, bringing broad reforms to Vermont.
- The state went from having no statutes about children born through Assisted Reproductive Technology (ART) to having more comprehensive laws.
- The state enacted comprehensive surrogacy statutes, protecting all parents involved and providing guidance to courts.
- De facto parentage was established as a legally recognized status that helps ensure that children raised by non-biological parents have more legal protections now than ever before.
- A child now has the ability to have more than two parents if a court determines that is in their best interests.
The VPA was a total modernization of the parentage code – a major accomplishment after years of the courts begging the legislature to act. The holes for Vermont children were filled.
This legislative session, I collaborated in drafting and advocating for legislation in Massachusetts and Rhode Island on parentage to address similar holes in parentage protections in those states. What are some of those holes?
In Rhode Island:
- There are NO statutes about children born through ART or surrogacy.
- An outdated statute requires a child to have an unmarried birth mother’s last name and gives no freedom to individuals and couples to choose their child’s last name.
- The parentage laws have not been reformed since the 1970s and are extremely outdated.
- There is only one statute regarding children born through ART, and it applies only within a marriage.
- There are no statutes about surrogacy.
- Massachusetts does not have a way to resolve competing claims of parentage and no legal parent status for de facto parents.
On the horizon for 2020 are parentage reforms in Connecticut. I am working actively with Yale Law Professor, Doug NeJaime, to engage diverse stakeholders in Connecticut to understand needs and craft statutory language.
That’s one key aspect of this work I want to highlight — GLAD as a collaborator. The issue of securing children is an issue that touches so many constituencies and institutions. GLAD works to ensure these legislative efforts are inclusive and collaborative so that the reforms advance the needs of LGBTQ people and children but are well crafted for the needs of the particular jurisdiction.
Finally, in all of this legislation, I hope to bring to every New England state something called a Voluntary Acknowledgment of Parentage (VAP). This is a form that is signed in the hospital and establishes legal parentage. Every child born to unmarried heterosexual/different-sex parents can access this form to establish parentage in a hospital. This easy path is required under Federal law, and it allows for a much more accessible and uncontested route to establishing parentage. A VAP is so important because VAPs are granted full faith and credit in all states.
My goal is to make sure LGBTQ parents have access to this same process. After advocacy with Massachusetts Department of Health, in April 2018, my lovely clients Rey and Tenairi were the first people in Massachusetts to use a VAP form to establish their parentage. Many of my clients have used this form since that time to swiftly and easily secure their parentage. Because of GLAD’s leadership, New England is leading in access to VAPs. After Nevada, Massachusetts, and Vermont were the second and third states to have gender-neutral VAPs. My goal is to push comprehensive reforms forward so that New England is truly a zone of equality for LGBTQ families and their children. It might take many sessions in state legislatures and fighting hard in litigation, but I feel really hopeful that we have positive momentum to make comprehensive change that will positively impact every one of our children.