Family Law in Connecticut

Same-sex couples have the right to marry in Connecticut. Single gay people can adopt in Connecticut; same-sex couples can jointly become the legal parents of a child.

Questions & Answers (Accurate as of February 12, 2014)

Marriage

Can same-sex couples marry in Connecticut?

Yes.  On October 10, 2008, Connecticut’s Supreme Court ruled that the state can no longer bar gay and lesbian couples from marrying.  This decision was the result of a lawsuit, Kerrigan & Mock v. Connecticut Dept. of Public Health, which GLAD filed on August 25, 2004 in New Haven Superior Court on behalf of eight gay and lesbian Connecticut couples who were denied marriage licenses.  The plaintiff couples, who at that time had been in committed relationships for between 10 and 30 years, many of them raising children, contended that their exclusion from marriage violated the equal protection and due process provisions of the Connecticut Constitution.

In April 2005, while the Kerrigan lawsuit was still ongoing, the Civil Union Law was signed by the Governor granting same-sex couples the state-based legal rights and benefits of marriage. GLAD argued in Kerrigan that a separate institution for gay and lesbian couples also violates the Connecticut Constitution.

On June 12, 2006, the trial court ruled for the state, claiming that there was no difference between a marriage and a civil union.  GLAD appealed this decision to the Connecticut Supreme Court.  After both sides filed lengthy legal briefs, the Connecticut Supreme Court heard oral arguments on May 14, 2007.

The Supreme Court ruling came on October 10, 2008 in a 4-3 decision issued on the basis of equal protection and a determination that sexual orientation-based classifications receive intermediate scrutiny.  In its decision, the Supreme Court ruled that: “Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice.  To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.  The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so.”56

Importantly, the Supreme Court found that because of the history of systemic discrimination against gay and lesbian people, laws that discriminate on the basis of sexual orientation must receive a higher level of review or scrutiny than ordinary legislation.  This heightened scrutiny means the state must have particularly strong and substantial reasons if it chooses to deny rights to gay and lesbian citizens.  The state, according to the Supreme Court, had no sufficient justification for denying marriage to same-sex couples.

The process for getting married in Connecticut basically requires the following basic steps:

  1. an eligible couple submits an application for a license in either the town or city in Connecticut where the wedding will take place or where either of the parties lives;
  2. the couple must pay the applicable fee and receive a marriage license from the clerk;
  3. the couple must have the marriage solemnized (i.e., have a ceremony) within 65 days of filing the application;
  4. once the ceremony has been performed, the person who performed it will state the time and place of the wedding on the license, sign it, and send it back to the city or town where the couple married; and
  5. the clerk will then register the marriage and the couple can receive an official certificate of their marriage.

Although this is great news, couples should be aware that whether the marriage will be respected in their home state or country is a complicated issue.

How will the marriage of a same-sex couple be respected?

Connecticut will generally respect the legal marriages of same-sex couples regardless of where the marriage was consecrated, and a Connecticut marriage will be respected as a marriage anywhere that same-sex couples can marry. For the most up to date list go to: http://www.freedomtomarry.org/states/

The 1996 federal law, the Defense of Marriage Act (DOMA), which prevented same-sex married couples from accessing the 1, 138 federal laws that pertain to marriage, was finally ruled unconstitutional by the United States Supreme Court on June 26, 2013. This case, Windsor v. United States, was filed by the American Civil Liberties Union (ACLU). Glad filed the first challenge to DOMA in 2009, Gill v. OPM, and the legal framework developed in that case was used in subsequent cases, including the Windsor case. GLAD was also responsible for coordinating the amici briefs in that case.

This means that same-sex married couples living in places that recognize their marriages will have their marriages respected by the federal government for all purposes, e.g. taxes, Social Security (including SSDI and SSI), immigration, bankruptcy, FMLA, federal student financial aid, Medicaid, Medicare, veteran's benefits, TANF, and many more.

For same-sex married couples who live in non-recognition states, even though their state will not recognize their marriage, the federal government will for some purposes (e.g. taxes and immigration) and not for others.  GLAD and other legal organizations are advocating that the federal government respect the marriages of same-sex couples for all federal programs wherever they reside, but it will take some time to achieve this goal.  For more detailed information about various federal programs and whether the program will recognize the marriages of same-sex couples who live in non-recognition states, go to http://www.glad.org/doma.

Also, while DOMA was in effect, if an employer granted a spousal benefit to an employee (e.g. allowing the spouse of the employee to be on the company health plan), the employee was taxed on that benefit.  Now that DOMA is gone, that is no longer the case.  And since the IRS respects the marriages of same-sex couples wherever they live, this applies to all married same-sex couples regardless of where they reside.

Unfortunately, one issue that was not resolved by taking down DOMA was whether an employer can be legally required to provide health insurance to a same-sex spouse.  If the company has a self-insured health plan, that plan is controlled by a federal agency called ERISA, and because the federal anti-discrimination employment law, Tile VII, does not explicitly prohibit discrimination based on “sexual orientation”, some employers are claiming that they are not legally required to provide this benefit to same-sex spouses.  Also, if the health plan is insured, and the owner of the plan is situated in a state that doesn’t recognize the marriages of same-sex couples, some employers are choosing to discriminate against same-sex spouses.  However, for both self-insured and insured health plans, nothing prevents the employer from offering coverage to same-sex spouses.  If your employer is discriminating against same-sex spouses, contact GLAD Answers.

What happens if we need to end our marriage?

Should the couple at some point wish to end the marriage, unless the couple lives in a state or country which does respect the marriage, it may not be possible to dissolve the marriage until one member of the couple moves to a place that does respect the marriage and lives there long enough to meet that state or country’s residency requirement for divorce.

There are a small number of places that will allow a relationship that was granted there to be dissolved without a residency requirement if you can prove that neither spouse can dissolve it where they currently reside (e.g. Vermont, California, Delaware, District of Columbia, Minnesota and Canada).57

GLAD has prepared a number of publications dealing with marriage.  These publications are available both in printed form and on our website, http://www.glad.org. ; They include:

  • How To Get Married in Connecticut
  • Same-Sex Spousal Health Benefits

Can Connecticut same-sex couples get married anywhere else? 

The list of states where same-sex couples can currently marry is found at: http://www.freedomtomarry.org/states/. There is information about getting married in Massachusetts, Vermont, Connecticut, New Hampshire, Maine, Rhode Island and Canada (same-sex couples can marry in Canada and there is no residency requirement) on GLAD’s website at:  www.glad.org/rights/publications/c/marriage/.

For information about getting married outside New England, contact Lambda Legal (www.lambdalegal.org).

Some people may be able to wed outside the United States, but some of these locales have residency and other requirements that make it difficult for non-citizens to marry.

Civil Unions

Connecticut was the second state (Vermont was the first) to allow same-sex couples to enter into a civil union, which is a legal status parallel to civil marriage at the state law level.  Without any compulsion from a court, the state legislature passed a law, “An Act Concerning Civil Unions,” that was signed by the Governor on April 20, 2005 and became effective October 1, 2005.  Civil Unions provide all the benefits, protections and responsibilities that are granted to a spouse under state law.58 The Connecticut Supreme Court ruling, which enables same-sex couples to marry, did not in any way change the state’s Civil Union Law.

However, on April 23, 2009, the Governor signed into law Public Act 09-13, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” which provided a process for moving from a system in which both civil unions and marriage are available to gay and lesbian couples to a system in which only marriage is available.  All existing Connecticut civil unions were converted into marriages on October 1, 2010. 

If you have a civil union (or registered domestic partnership) from another state, Public Act 09-13 clarifies that Connecticut will grant you the same rights and benefits, and hold you to the same responsibilities, as a married couple in Connecticut.

Legal Protections for Same-Sex Couples

Without getting a marriage, what steps can a couple take to legally safeguard their relationship in Connecticut?

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage or civil union.

There are far more modest steps available to people who seek certain limited legal protections and do not desire a civil union.

Relationship Agreement or Contract: In 1987, the Connecticut Supreme Court ruled that an agreement between an unmarried heterosexual couple to share their earnings and the fruits of their labor was an express contract which could be enforced according to the ordinary rules of contract when the couple separated.59  There is every reason to believe that the same result will apply to the contract of a same-sex couple.  While the court held that contracts could be oral or in writing, this ruling provides great incentive for couples to sort out their affairs in writing before a separation.

Document Designating a Non-Legally Related Adult to Have Certain Rights and Responsibilities: In 2002, Connecticut adopted a new set of laws,60 that allows an adult, known as the designator, to name another adult of either sex, known as the designee, to make certain decisions on her or his behalf, or giving the designee certain rights or responsibilities. The protections this law provides fall far short of those associated with marriage, but they may provide some peace of mind for couples under a narrow set of circumstances.

To make this designation, the designator must sign, date and acknowledge a document before a notary public and two witnesses.  The designator can revoke the document at any time by destroying the document or by executing a new document.61 The designation document must be honored in the following circumstances:

  • In The Workplace: An employer must notify an employee of an emergency phone call concerning the employee’s designee.62
  • In Court And Administrative Proceedings Involving Crime Victims: The designee of a homicide victim is granted employment protection for missing work in order to attend the court proceedings.63 The designee is also entitled to request and receive advance notice of the terms of plea agreements with the perpetrator,62 to make a statement in court prior to the sentencing of the perpetrator, and to make a statement at parole hearings of the perpetrator.64  The designee, if wholly or partly dependent on the deceased person’s income, may seek compensation from the Office of Victim Services.65
  • In Health Care Settings: With regard to end-of-life decisions, a doctor must attempt to determine the patient’s wishes.  If a patient’s wishes are not written in a living will, the designee is among those with whom the doctor must consult regarding the removal of life support.64  The doctor must record any such communications with a designee in the patient’s medical record.65  Before removing life support, the doctor must make reasonable efforts to notify the patient’s designee.66  In addition, the designee has priority in making anatomical gifts on behalf of a deceased designator over all representatives or family members with the exception of a surviving spouse.67
  • In Psychiatric Hospitals: The designee is among the list of people who may consent to medical or surgical procedures for involuntarily committed psychiatric patients who are unable to consent themselves.68
  • In Nursing Homes: The act entitles the designee to (1) receive advance notice of involuntary, non-emergency room transfer, including Medicaid patients’ transfer into non-private rooms; (2) participate in any consultations prior to any contested transfer; (3) private visits with the patient; and (4) meet in the facility with family members of other patients.69

Other documents, discussed below, allow same-sex partners to share financial, medical, and end of life decisions.  The rights and responsibilities to which the designee is entitled under Public Act 02-105 overlap with some of those set forth in the documents discussed below.  It is unclear how the law will handle these potential conflicts, and therefore any preference for who should carry out specific obligations should be clearly noted in all relevant documents.

Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters and health care or personal matters, in the event the one becomes incapacitated or disabled.70 The law provides a “short form” which allows a person to check off the kinds of transactions he or she would want the “attorney-in-fact” to perform in his or her place.  These include (a) real estate matters; (b) chattel and goods transactions; (c) bond, share and commodity transactions; (d) banking transactions; (e) business operating transactions; (f) insurance transactions; (g) estate transactions; (h) claims and litigation; (i) personal relationships and affairs; (j) benefits from military service; (k) records, reports and statements; and (l) all other matters designated by the individual, except health care decisions. Those can be delegated to a “health care representative” that is described below.73

Note that the “attorney-in-fact” may make health care decisions and thus serve as a voice for securing medical treatments already determined by the declarant.  However, the power of the “attorney-in-fact” does not extend to decisions concerning engagement or withdrawal of life support.  That responsibility lies with a “health care agent” (see below) or a designee under Public Act 02-105, unless set forth in a living will.

It is not clear if the “attorney-in-fact” receives priority for visiting a person in the hospital, so it is important to state whether you want such a preference given in the power of attorney or another document.

The power of attorney can become effective immediately, or upon your disability (called a “springing” power of attorney, because it springs into being upon disability), and it can have a short termination date, long termination date, or no termination date. It should be witnessed by two disinterested individuals and notarized.  The notary may also serve as a witness.  The power of attorney must stay in possession of the “attorney-in-fact.”

Health Care Representative: A person age 18 or over may appoint another person to act as his or her health care representative and thereby state his or her wishes regarding health care including withdrawal of life support, preferences for types of medical care, anatomical gifts, or limits on the agent’s authority for end-of-life issues.74 The document must be executed in accordance with Conn. Gen Stat. sec. 19a-577 or sec. 19a-575a, and must be witnessed by two adults.  Absent a living will, the attending physician will consult the health care representative, the next of kin, the patient’s designee under Public Act 02-105, or any other person knowledgeable of the patient’s wishes.75 The representative’s designation can be revoked by a written document signed by the person who appointed the representative and two witnesses. 76

Appointment of Conservator: Before an individual adult becomes disabled or incompetent, he or she may also designate in writing one or more persons to act as a conservator of his person or estate or both for when the adult is found incapable of managing his or her own affairs.77  These documents must be treated with the same formality as wills.  See generally Conn. Gen. Stat. sec. 45a-645 (b).  The appointment of a conservator takes precedence over an attorney-in-fact, health care agent or designee under the new act.78  A person may also nominate a conservator in accord with the form provided by statute.79  Note that all nominations are subject to the scrutiny of the probate court at the time a person is deemed incapable or incompetent.

Will: Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family or (3) if next-of-kin cannot be located, to the state.  If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.80 In addition, if a person has children, he or she can nominate the future guardian and “trustee for asset management” of the child in the will.  That nomination will be evaluated by the Probate Court.

Transfer of Car Ownership to Surviving Partner: Under Public Act 02-105, a car owner may designate, on the car’s registration, a beneficiary to assume ownership of the car upon the death of the owner.81

Funeral Planning Documents: Upon death, a person’s body is given to their spouse or their next-of-kin.82  This can mean that a person’s own partner has no right to remove the body, write an obituary, or make plans for a final resting place.  To avoid that problem, you can create a document (witnessed and notarized) that designates the person you want to be able to have custody and control of your remains.83 (Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters, as well as to family).

Summary: Some attorneys, particularly if a person is naming the same individual as responsible for his or her welfare, have wrapped together many of the above protections (except the relationship contract, will and the designation under Public Act 02-105) into a document entitled:  “Health Care Instructions, Appointment of Health Care Representative, Appointment of Attorney in Fact for Health Care Decisions, Designation of Conservator for Future Incapacity and Document of Anatomical Gift.”84  It seems likely that the designation under Public Act 02-105 may also be incorporated into such a comprehensive document.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions.  In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents.

If a couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  If a couple has a marriage or civil union, divorce laws apply.  Absent a marriage, civil union or an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it. 

If a person has changed his or her mind about who should be his or her “attorney-in-fact,” or health care representative, or beneficiary or executor under a will, or funeral planner, or conservator, or designee under Public Act 02-105, those documents should be revoked, with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner, which were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.”  Some people call cohabitation agreements “domestic partner agreements.”  See GLAD’s publications on Domestic Partnerships for further information.

Does Connecticut provide same-sex domestic partner benefits to state employees?

Not any longer. Although Connecticut offered domestic partnership benefits for its state employees for several years, there was an agreement that when marriage became available to same-sex couples those benefits would only be available to married or civil union spouses.  Beginning in November 2009 domestic partnership benefits were terminated. The process for obtaining coverage is simple.  Contact the Comptroller’s office at (860) 702-3301. You will need to fill out a domestic partnership affidavit and health insurance change forms.

Can cities and towns in Connecticut provide domestic partner health insurance benefits to their own employees?

Yes.  For example, Hartford has a domestic partnership ordinance providing a means for couples to register as domestic partners.85

What kinds of domestic partner benefits may private employers provide?

Private employers may provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, access to company facilities or any other benefit.

Even when employers provide these benefits, though, federal laws require different tax or other treatment of the benefits for domestic (and civil union) partners as compared to married spouses (unless the partner is a dependent).  For example, an employee must pay income tax on the value of his or her same-sex partner’s health insurance benefits, but an employee with a spouse does not.86  For pensions, a same-sex partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension although a spouse would have that right.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

That is an open question.  On the one hand, the non-discrimination law says that an employer can’t discriminate on the basis of sexual orientation in terms of compensation, and employee benefits are a form of compensation.  But on the other hand, lawsuits in other states have largely failed with these types of claims on the grounds that all unmarried people—gay and non-gay alike—are barred from benefits, so there is no sexual orientation discrimination. What is clear is that a private employer may provide domestic partner benefits; the only question is whether the employer could be forced to do so through the non-discrimination law.

Adoption

Can a single gay individual adopt a child in Connecticut?

Yes.

Can same-sex partners together adopt a child in Connecticut?

Yes.  A couple with a marriage or civil union must adopt a child not born into the relationship as a couple.  A couple who does not have a marriage or civil union can both become legal parents of a child through a process, called “second parent adoption,” whereby one adopts (or gives birth to the child), and then the second parent adopts.  A law which became effective October 1, 2000 creates a process for “second parent adoption” whereby an existing parent (biological or adoptive) may agree to the adoption of the child by another person “who shares parental responsibility for the child.”87

What is the advantage of doing a second parent adoption?

A joint or second parent adoption means that the child now has two legal parents for all purposes.  The law will finally reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the person is a parent entitled to make decisions for the child in day-to-day and emergency matters.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits.

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we have a marriage or a civil union?

A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple.  While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves.  Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt.,2006), cert. denied, 127 S.Ct. 2130 (2007); Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88 (2006), cert. denied 128 S.Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.  Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant was issued.  Lisa and Isabella still have not been found.

On March 8, 2010, Liberty Counsel filed on Lisa’s behalf an appeal of the custody order with the Vermont Supreme Court, and GLAD has filed a response on behalf of Janet.  GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to http://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins. ;

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

As a general matter, the rights of the other parent (non-birth parent or non-adoptive parent) are limited in these circumstances.  Whether the couple obtained a marriage or civil union may alter the situation.  If there is no marriage or civil union, the law permits persons to petition the Superior Court for visitation but not custody.88  The threshold requirement for a visitation petition is a disruption in a child’s family life.89  As to what “family life” means under the law, see Michaud v. Wawruck.90

Several courts have allowed lesbian co-parents the right to visit with their children following a separation.91  Persons awarded visitation have no obligation to support the child, but a legal parent may accept support which is paid.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels.  Separating a child from a person who has acted as their parent can be a devastating loss for a child.  Moreover, court proceedings to establish visitation will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families:  Standards for LGBT Families at http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.  Among these are:

  • Co-parenting Agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death.  While these agreements may not be given effect, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
  • Wills: The legal parent may nominate a guardian of the child upon the parent’s death.  These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would likely have priority over the nominated guardian.
  • Power of Attorney: This document is signed by the parent and authorizes another person (the “attorney-in-fact”) to make medical or financial decisions for the child (See discussion above).

Custody and Visitation

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

1. Support the rights of LGBT parents;
2. Honor existing relationships regardless of legal labels;
3. Honor the children’s existing parental relationships after the break-up;
4. Maintain continuity for the children;
5. Seek a voluntary resolution;
6. Remember that breaking up is hard to do;
7. Investigate allegations of abuse;
8. The absence of agreements or legal relationships should not determine outcome;
9. Treat litigation as a last resort; and
10. Refuse to resort to homophobic/transphobic laws and sentiments.

For more detailed information about these standard see the publication Protecting Families:  Standards for LGBT Families at: http://www.glad.org/uploads/docs/publications/protecting-families-standards-for-lgbt-families.pdf.

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

This question has never been answered squarely by the Connecticut Supreme Court.  As a practical matter, a parent’s sexual orientation by itself should not be grounds for denying custody or visitation.  A 1988 case decided by a lower court involved a lesbian mother who lost custody of her children to their father, and who was ordered not to have her partner present when the children visited.  But the mother did not appeal those rulings and the only matter to reach the Supreme Court was the issue of the financial obligations imposed on her.92

It is extremely important that you be honest with your lawyer about your personal circumstances.  The information is likely to come to light in any event since a family services officer will be appointed and speak to you, your spouse, your child, and possibly neighbors and people at your child’s school.  If you don’t trust your lawyer with this information, get a new lawyer.

What are the factors for making custody determinations generally?

Upon divorce, the parties may make an agreement about custody and visitation.  If they can’t reach an agreement, a Superior Court judge will make custody and visitation orders based on the “best interests of the child” standard.91  As a general matter, the best interests of the child “include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment.”93

In all contested cases, the judge will appoint a family relations officer to investigate in order to help the judge arrive at a decision.  The investigation can touch on matters of “parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and characters of his parents or guardians and evaluation of his mental or physical condition.”94

Are there different kinds of custody?

Yes.  “Joint custody” means an order of legal custody of the child to both parents, which allows them joint decision-making for the child and providing that the child shall have continuing contact with both parents.96  Sole custody means that only one of the parents has those rights.

How is “sexual orientation” used in custody proceedings?

In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent may argue that the ex’s new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.

Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?

Whether or not you come out during the divorce process is a personal decision, but there is little to no benefit in keeping it a secret.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a change of circumstances, which affects the child’s best interests, and that the custody issues should be litigated anew.  People can seek to modify court orders for custody when there has been a change in circumstances which alters the child’s best interests. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition claiming a “change” would be pointless.97

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but should not do so unless it is clearly in the best interests of the child.  Connecticut courts have rejected the notion that any particular lifestyle, in and of itself, will harm a child and insist instead on proof.

Domestic Violence

What is domestic violence?

Under the law, “family violence” means “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault…”98  Verbal threats by themselves do not trigger the law’s protections unless there is “a present danger and the likelihood that physical violence will occur.”

Do the domestic violence laws apply to people in same-sex relationships?

In some circumstances.  “Family violence” between family or household members includes, among other things,civil union and same-sex married spouses as well as relationships in which people are or were residing in the same household, people who have a child in common, and people who are in or have recently been in a dating relationship.99

How do I get a court order protecting me from an abusive partner?

You can get a court order from the Family Court, which will prohibit the abuser from coming near you or your home or from harassing you any further.  It will only be issued if the court finds you have been subjected to “a continuous threat of present physical pain and injury.” 100  Orders may be granted on an emergency basis.

The process is intended to be simple.  You may go to court nearest where you live, or if you have just fled your home, in the town where you used to live.  You will need to fill out an application alleging “abuse” as defined above with an affidavit providing the details.  The affidavit is signed under oath, so everything you say must be true. Try to demonstrate in as much detail as possible why you feel threatened.

The defendant/abuser must be served with (given a copy of) the court order and notified of his or her right to contest the order in court.  At that time, both parties often have attorneys.  You should bring with you any witnesses who can substantiate the abuse, as well as copies of threatening letters, medical records, or any other documents that can show how you have been harmed and why you are afraid.  Expect to be asked questions by the judge and the attorney for the abuser/defendant.  You have the same right to ask questions.

Once the order is issued, it is effective statewide.  Violation of a court order of which an abuser has notice is a criminal offense.101  After hearing, the court may grant orders of protection up to 6 months in duration, and those orders may later be extended for up to another 6 months at a time.102

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed.  If you don’t show up, it is possible the court will think of you as unreliable if you need legal help in the future.

There is another type of order available as well called a “protective” order.  It is issued automatically when an assailant is arrested and requires no contact to occur between the assailant and victim.

There are other laws that prohibit stalking, harassing and trespassing which may apply to you, but are beyond the scope of this document.

Where can I go to get help?

In addition to the local police, district attorney, and Superior Court you can contact:

  • Connecticut Coalition Against Domestic Violence (CCADV)
    (860) 282-7899 or Toll-Free (888) 774-2900
    www.ctcadv.org
  • Connecticut Sexual Assault Crisis Services
    (860) 282-9881 or Toll-Free (888) 999-5545 (English (888)-568-8332 (Español)
    www.connsacs.org
  • Connecticut Women’s Education and Legal Fund (CWEALF)
    (860) 524-0601 or Toll-Free (800) 479-2949
    www.cwealf.org

Does domestic violence play a role in custody decisions?

It may, but there is no law saying that it should.  It is a factor which affects the best interests of the child analysis.

Footnotes

56 Kerrigan v. Comm’r of Pub. Health 289 Conn. 135, 262 (2008).
57 See the following publication from the National Center for Lesbian Right: http://www.nclrights.org/wp-content/uploads/2013/07/Divorce_in_DOMA_States_Attorney_Guide.pdf. 58 California provides a registered domestic partnership system which is nearly as comprehensive and New Jersey and Maine provide more limited protections.
59 Boland v. Catalano, 2002 Conn. 333, 340-41, 521 A.2d 142, 146 (1987)
60 Public Act 02-105
61 Public Act 02-105, sec. 3(b)
62 Conn. Gen. Stat. sec. 31-51jj
63 Conn. Gen. Stat. sec. 54-85d
64 Conn. Gen. Stat. secs. 1-1k, 54-91c, 54-126a
65 Conn. Gen. Stat. sec. 54-201
66 Conn. Gen. Stat. sec. 19a-571(a)
67 Conn. Gen. Stat. sec. 19a-578(b)
68 Conn. Gen. Stat. sec. 19a-580
69 Conn. Gen. Stat. sec. 19a-289h(a)
70 Conn. Gen. Stat. sec. 17a-543(b)
71 Conn. Gen. Stat. sec. 19a-550
72 Conn. Gen. Stat. sec. 1-42
73 See Conn. Gen. Stat. sec. 1-43(a)
74 Conn. Gen. Stat. secs. 19a-576
75 Conn. Gen. Stat. sec. 19a-571
76 Conn. Gen. Stat. sec. 191-575a
77 Conn. Gen. Stat. sec. 45a-645
76 Conn. Gen. Stat. sec. 45a-650 (g)
77 Conn. Gen. Stat. sec. 19a-575
78 See generally Conn. Gen. Stat. secs. 45a-433 – 45a-439
81 Conn. Gen. Stat. sec. 14-16
82 Conn. Gen. Stat. sec. 45a-318
83 Conn. Gen. Stat. sec. 45a-318
84 Conn. Gen. Stat. sec. 19a-575a
85 Hartford, CT Municipal Code, Chap. 2, Art. III, sec. 2-63 (2000)
86 See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)
87 Public Act 00-228, amending Conn. Gen. Stat. sec. 45a-724.
88 Conn. Gen. Stat. sec. 46b-59
89 Castagno v. Wholean, 239 Conn. 336 (1996)
90 209 Conn. 404 (1988)(“traditional models of the nuclear family have come. . . to be replaced by various configurations. . . and we should not assume that the welfare of children is best served by a narrow definition of those who we permit to continue to manifest their deep concern for the child’s growth and development”)
91 See e.g. Antonucci v. Cameron, 25 Conn. L. Rptr. 509 (Conn. Super. Ct. Dept., Sept. 24, 1999)(allowing visitation to lesbian co-parent where visitation is in the best interests of the child); Laspina-Williams v. Laspina-Williams, 46 Conn. Supp. 165, 742 A.2d 840 (1999)(denying motion to dismiss of biological mother in co-parent visitation case)
92 Charpentier v. Charpentier, 206 Conn. 150, 536 A.2d 948 (1988)
93 Conn. Gen. Stat. sec. 46b-56(b)(1)
94 Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996, 999 (1985)
95 Conn. Gen. Stat. sec. 46b-6
96 Conn. Gen. Stat. sec. 46b-56a
97 See generally, Conn. Gen. Stat. sec. 46b-56
98 Conn. Gen. Stat. sec. 46b-38a(1)
99 Conn. Gen. Stat. sec. 46b-38a(2)
100 Conn. Gen. Stat. sec. 46b-15
101 See generally, Conn. Gen. Stat. sec. 46b-15 (c)
102 Conn. Gen. Stat. sec. 46b-15(d)