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Know Your Rights: Family Rights in Connecticut

LGBTQ+ Families in Connecticut

Parenting

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Family | Parenting | Connecticut

What is the Connecticut Parentage Act?

The Connecticut Parentage Act (CPA) (Public Act 21-15) is a new set of state laws that comprehensively updates Connecticut parentage law and aims to ensure each child has a clear path to secure their legal parentage. See: Substitute House Bill No. 6321 – Public Act No. 21-15

Specifically, the CPA ensures greater protections and equal treatment for children of LGBTQ+ parents. The law allows many LGBTQ+ parents to establish parentage through a simple form, an Acknowledgement of Parentage, ensuring LGBTQ+ parents are able to establish their legal relationship to their child immediately at birth or any time before the child turns 18. 

The CPA also extends an accessible path to parentage for children born through assisted reproduction and strengthens protections for children born through surrogacy. The bill was signed into law on May 26, 2021.

What does parentage mean?

“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Why was the CPA passed now?

For years, countless Connecticut families struggled under a legal system that failed to extend parentage protections to LGBTQ+ and non-LGBTQ+ families equally. 

In response, the We Care Coalition, a broad coalition of families and organizations pushing for parentage reform in Connecticut, advocated for modernizing the state’s parentage laws. With the lead sponsorship of Rep. Jeff Currey and Sen. Alex Kasser, the coalition’s hard work paid off.

Why is it important to establish parentage quickly?

Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.

How can Connecticut families establish parentage under the CPA?

The CPA provides that Connecticut parents can establish their parentage in the following ways:

  • Giving birth (except for people acting as surrogates)
  • Adoption
  • Acknowledgment (by signing an Acknowledgment of Parentage)
  • Adjudication (an order from a court)
  • Presumption (including the marital presumption)
  • Genetic connection (except for sperm or egg donors)
  • De facto parentage
  • Intended parentage through assisted reproduction
  • Intended parentage through a surrogacy agreement

What if I am a non-biological parent? How can I establish myself as a legal parent?

The CPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction other than surrogacy, you can establish parentage by signing an Acknowledgement of Parentage.

All parents can establish parentage through a court order. A presumed parent or an intended parent of a child conceived through assisted reproduction can seek a judgment declaring the person a parent of the child or do a co-parent or second parent adoption. Some non-biological parents can establish parentage through the CPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

Who is an intended parent?

An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child. The CPA addresses intended parents in the context of surrogacy separately from intended parents in the context of other forms of assisted reproduction. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.

Who is a presumed parent?

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Acknowledgement of Parentage, by an adjudication, or as otherwise provided in the CPA.

You are a presumed parent if any of the below are true:

  • You are married to the child’s birth parent when the child is born
  • You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce
  • You, jointly with another parent, resided in the same household with the child and held out the child as your child for at least two years from the time the child was born or adopted

How does the CPA help people conceiving through assisted reproduction?

The CPA provides important clarity and protections for children born through assisted reproduction. The CPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the CPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent.

What is an Acknowledgment of Parentage?

Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgment of Parentage program.

Federal regulations require states to provide an Acknowledgment of Parentage program at hospitals and state birth record agencies. Acknowledgment of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.

By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgment of Parentage has the binding force of a court order and should be treated as valid in all states.

How do I establish my parentage through an Acknowledgment of Parentage?

You can voluntarily acknowledge the parentage of a child by signing a form from the Connecticut Department of Public Health known as an Acknowledgement of Parentage. An Acknowledgement of Parentage must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the Acknowledgment of Parentage). The other parent can be the genetic parent, an intended parent of a child born through assisted reproduction other than surrogacy, or a presumed parent (i.e., the spouse of the birth parent at the time of the child’s birth, or a person who resided with the child and held out the child as the person’s child for at least the first two years of the child’s life.

Signing an Acknowledgement of Parentage form is voluntary, and it can be done at the hospital soon after birth or at a later time at a DSS office. An Acknowledgement of Parentage form must be notarized or witnessed and signed by at least one other person in addition to the parents.  To be valid, the people signing the form must be given oral and written notice explaining the legal consequences, rights, and responsibilities that arise from signing an Acknowledgement of Parentage. If either the birth parent or the non-birth parent does not want to sign this form to establish parentage for the non-birth parent, then either of them can try to have a court determine parentage.

If you have any questions about whether to sign an Acknowledgement of Parentage form, you should consult with a lawyer before signing. An Acknowledgement of Parentage is the equivalent of a court judgment of parentage, and parentage is a considerable, life-long responsibility. 

When can I not establish parentage through an Acknowledgment of Parentage?

  • A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
  • Parentage cannot be established through an Acknowledgment of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage. 
  • A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgment of Parentage until the child is two.

When can a parent sign an Acknowledgment of Parentage?

Acknowledgments of Parentage can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgment of Parentage can also be completed before the child’s birth but will not take effect until the child is born.

For parents who are signing an acknowledgment of parentage for an older child (i.e. not in a Connecticut hospital), you should contact the Child Support Unit at your local Department of Social Services office to make an appointment to sign the acknowledgment.

How can an Acknowledgment of Parentage be rescinded?

An Acknowledgement of Parentage can be rescinded by either party for any reason within 60 days after its signing or prior to an administrative or judicial proceeding relating to the child in which the signatory is a party, whichever is earlier. A signatory may rescind an Acknowledgment of Parentage by filing a rescission—signed in the presence of either a notary or witness—with the Connecticut Department of Public Health. If the form is not rescinded within that 60-day time frame, an Acknowledgement of Parentage can be challenged only on the basis of fraud, duress, or material mistake of fact. At this stage, the Acknowledgment of Parentage can only be challenged in court.

What if I reside in Connecticut, but my child was born in another state?

You can sign an Acknowledgment of Parentage in Connecticut. If you experience barriers to executing an Acknowledgment of Parentage, please contact GLAD Answers..

What is the difference between joint, second-parent (also known as co-parent) and single parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Connecticut.

What is the advantage of doing a second parent adoption or joint adoption?

Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second-parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will and may be able to collect Social Security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that 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 are married?

When a child is born into a marriage, Connecticut law and the law of all states, presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.

Now Connecticut couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgment of Parentage.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second-parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a co-parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to acknowledgments of parentage is an emerging development, some parents might feel more comfortable also completing a second parent adoption in addition to or instead of an Acknowledgment of Parentage. To understand what is best for your family, individualized legal advice is recommended.

Who is a de facto parent?

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence, all of the following:

  1. You lived with the child as a regular member of the household for at least one year
  2. You consistently took care of the child
  3. You took full and permanent responsibility for the child without expectation of financial compensation
  4. You held the child out as your child
  5. You established a bonded and dependent relationship which is parental in nature
  6. You had a parental relationship with the child that was supported by another parent
  7. Continuing a relationship with the child is in the child’s best interest.

How does the CPA address surrogacy?

Connecticut law already authorized courts to recognize intended parents who have children through a gestational surrogacy arrangement as the child’s legal parents. The CPA provides much more comprehensive regulation of surrogacy, including guidance about how to establish parentage through surrogacy agreements. The CPA includes both gestational surrogacy, in which the person acting as the surrogate is not genetically connected to the child, and genetic surrogacy, in which the person acting as the surrogate is genetically connected to the child. 

Before starting any medical procedures to conceive a child through a surrogacy process, you must have a written and signed agreement. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties. If you are entering a genetic surrogacy agreement, you must also have the agreement validated by a probate court before any medical procedure takes place.

To enter into a surrogacy agreement, all of the following must be true:

  1. All intended parents and the person acting as the surrogate must be at least 21
  2. All intended parents and the person acting as the surrogate must have completed a mental health evaluation, and the person acting as the surrogate must also have completed a medical evaluation
  3. The person acting as the surrogate must have previously given birth to at least one child
  4. The person acting as the surrogate must have health insurance or some other form of medical coverage
  5. The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s)

The law requires surrogacy agreements to incorporate several terms to be valid, such as allowing a person acting as a surrogate to make their own health and welfare decisions during pregnancy and requiring the intended parent(s) to pay all related healthcare costs.

What if I am not married?

The CPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the CPA aims to treat all Connecticut families equally.

What if I am transgender or non-binary?

The CPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The CPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the CPA aims to treat all Connecticut families equally.

Can a child have more than two legal parents?

Yes. Under the CPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.

What protections are there for survivors of domestic violence so that they are not pressured into establishing legal parentage?

The CPA aims to ensure that the establishment of parentage is fair, clear, efficient, and child-centered. Some legal parentage–such as the non-marital presumption and de facto parentage–can arise by consent. No one should ever be pressured to consent to parentage. The CPA contains provisions that allow parents to challenge another person’s parentage if the other person claims to be a presumed parent or a de facto parent but satisfied the requirements for parentage through duress, coercion, or threat of harm.

Where can I go if I need help resolving a parentage issue?

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or call 800.455.4523 (GLAD).

Resources

For more information about Connecticut Parentage Act, see: Connecticut Parentage Act – Yale Law School

Webinar explaining the CPA: Connecticut Parentage Act: What You Need to Know – GLAD.

Sample Acknowledgment of Parentage form (Note: you cannot fill out the form online. You must get the form from a hospital or your local DSS office):  STATE OF CONNECTICUT-DEPARTMENT OF PUBLIC HEALTH VITAL RECORDS SECTION – PARENTAGE REGISTRY

Protecting Families: Protecting Families: Standards for LGBT Families – GLAD

Parenting a Transgender Child: Parenting a Transgender or Gender-Expansive Child: How to Protect Your Family Against False Allegations of Child Abuse

Family | Relationships | Connecticut

What role did GLAD play in the fight for marriage equality?

GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections, and responsibilities of marriage but called them civil unions or registered domestic partnerships.

GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health

This was followed by:

  • Maine approved domestic partnerships in 2004, which provided some of the protections of marriage;
  • civil unions in Connecticut in 2005;
  • GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008; 
  • civil unions in New Hampshire in 2008;
  • Vermont provides marriage for same-sex couples in 2009;
  • Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009;
  • marriage in New Hampshire in 2010;
  • Connecticut converts all its civil unions into marriage in 2010;
  • conversion of New Hampshire civil unions to marriage in 2011;
  • civil unions in Rhode Island in 2011; 
  • marriage in Maine in 2012; 
  • marriage in Rhode Island in 2013;
  • civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage.

At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996, which was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry that those marriages would not be recognized by the federal government. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.

Finally, in Obergefell v. Hodges, on June 26, 2015, the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs at oral arguments. Post Obergefell, all 50 states are required to issue marriage licenses to same- sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can same-sex couples marry in Connecticut?

Yes. On October 10, 2008, Connecticut’s Supreme Court ruled that same-sex couples are entitled to full marriage equality under the Connecticut Constitution. 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.

For information about how to get married in Connecticut see: License to Get Married.

Will other states and the federal government respect my marriage?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security). 

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal

What happens if we need to end our marriage?

After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Connecticut applies its divorce statutes to same-sex couples.

However, spouses should note that when Connecticut courts divide marital property and award alimony, one of the factors a judge considers is the length of the marriage. The Connecticut Supreme Court has specifically held that a judge cannot take a period of premarital cohabitation into account. Unfortunately for spouses whose partnership pre-dates marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.

If you are going through divorce proceedings in Connecticut and believe your division of assets may be unfairly affected by the length of your marriage, contact GLAD Answers.

Does Connecticut still allow civil unions?

Not anymore. Connecticut completed its transition from civil unions to full marriage equality for same-sex couples in 2010 and automatically converted any existing civil unions into marriage.

If you have a civil union (or registered domestic partnership) from another state, Connecticut will grant you the same rights and benefits, and hold you to the same responsibilities, as a married couple in Connecticut. However, with the exception of Social Security, the federal government will not recognize your civil union.

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.

  1. Relationship Agreement or Contract: A couple has the option of drafting a written cohabitation agreement, outlining their respective rights with regards to property, finances, and other aspects of their relationship. In 1987, the Connecticut Supreme Court ruled that a cohabitation agreement between an unmarried heterosexual couple was an express contract which could be enforced according to the ordinary rules of contract when the couple separated. 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 a great incentive for couples to sort out their affairs in writing before a separation.
  2. Document Designating a Non-Legally Related Adult to Have Certain Rights and Responsibilities: Connecticut law allows any adult to grant another adult the ability to make certain decisions on their behalf. Although the protections this law provides fall far short of those associated with marriage, they may provide some peace of mind for couples under a narrow set of circumstances.

To grant your partner (or anyone else) this decision-making power, you must sign, date, and acknowledge a designation document before a notary public and two witnesses. You can revoke the document at any time by destroying it or by executing a new document. The designation document must be honored in the following circumstances:

  • In The Workplace: If you experience an emergency and you or someone else calls your partner at work to inform them, their employer must notify them of the phone call.

 

  • In Court and Administrative Proceedings Involving Crime Victims: If you are the victim of a homicide, your partner is granted employment protection for missing work in order to attend court proceedings. Your partner is also entitled to request and receive advance notice of the terms of plea agreements with the perpetrator, to make a statement in court prior to the sentencing of the perpetrator, and to make a statement at parole hearings of the perpetrator. If your partner is wholly or partly dependent on your income, they may seek compensation from the Office of Victim Services.

 

  • In Automobile Ownership: If you own a car, your partner assumes ownership upon your death.

 

  • In Health Care Settings: If it comes time to make end of life decisions and your wishes are not written in a living will, your partner will be among those the doctor will consult regarding the removal of life support. Before removing life support, the doctor must make reasonable efforts to notify your partner. In addition, your partner has priority over all of your other representatives or family members when it comes to making anatomical gifts on your behalf, with the exception of a surviving spouse.

 

  • In Psychiatric Hospitals: Your partner is among the list of people who may consent to medical or surgical procedures for you, if you have been involuntarily admitted and are unable to consent yourself

 

  • In Nursing Homes: Finally, the act entitles your partner 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) have private visits with you; and (4) organize and participate in patient social events or community activities. 

 

Other documents, discussed below, allow your partner to share financial, medical, and end of life decisions. The rights and responsibilities granted to your partner by the designation document discussed above 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.

  1. Power of Attorney: A couple can choose to grant each other the durable power of attorney, allowing one partner to make financial decisions on the other’s behalf in the event of incapacity or disability.

The law provides a “short form” which allows you to check off the kinds of transactions you wish your partner (your “attorney-in- fact”) to perform. 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 you, with the exception of health care decisions. Those can be delegated to a “health care representative,” a process described below.

The power of attorney can either become effective immediately or in the event of your incapacity, and it can have a short termination date, long termination date, or no termination date at all. It should be witnessed by two disinterested individuals and notarized. The notary may also serve as a witness. The power of attorney form must stay in your partner’s possession.

  1. Health Care Representative: A couple can also choose to appoint each other as health care representatives, allowing them to make medical decisions on one another’s behalf in the event of an emergency. You may state your preference about withdrawal of life support, types of medical care, anatomical gifts, or any other limits on your health care representative’s authority in the same document. The document must be executed and witnessed by two adults, and must be revoked the same way. If you have no health care representative, medical care providers will look to next- of-kin or any adult listed in your designation document (discussed above) to make medical decisions for you.

 

  1. Appointment of Conservator: You may also choose to appoint you partner as your conservator. A conservator manages your financial and/or daily affairs when you are no longer capable of managing them yourself, either because of old age or mental or physical incapacity. Note that all conservator nominations are subject to the scrutiny of the probate court at the time you are deemed incapable or incompetent.

 

  1. Will: Without a will, a deceased unmarried person’s property passes to: (1) their children; (2) their family, or; (3) if next of kin cannot be located, to the state. If you wish to provide for others, such as your partner, a will is essential. Even if you have few possessions, you can name in the will the person who will administer your estate.

In addition, if you have children, you can nominate their future guardian and “trustee for asset management” in the will. This nomination will be evaluated by the Probate Court.

  1. Funeral Planning Documents: Upon death, a person’s body is given to their spouse or their next of kin. 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 this 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. 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 directly to the person you want to take care of matters, as well as to family.

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, an attorney may be able to better 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. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

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

Upon separation, if the couple has a Relationship or Partnership Agreement/Contract, its terms will be invoked, and the couple’s assets will be divided as per the agreement. Without an agreement, unmarried couples may be forced to endure costly and protracted litigation over property and financial matters.

PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, then 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 your present wishes.

What is domestic partnership?

Although it is a term used in many contexts, “domestic partnership” most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes, most commonly employee benefits. 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

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, benefits would only be available to married or civil union spouses. Beginning in November 2009, domestic partnership benefits were terminated.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities

Even when employers provide these benefits, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

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 LGBTQ+ 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. Not allow the absence of agreements or legal relationships to determine outcomes;
  9. Treat litigation as a last resort; and
  10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families | GLAD

How does a court generally go about making custody determinations?

When a married couple divorces, the parties are encouraged to make their own agreement about custody and visitation. If they can’t reach an agreement, a Superior Court judge will make a custody and visitation determination based on the best interests of the child. A court considers all relevant factors, keeping in mind a child’s growth, development, well- being, and the continuity and stability of their environment.98

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, [the child’s] 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.”

Are there different kinds of custody?

Yes, four kinds:

  1. “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
  2. “Shared legal custody” means that both parents are involved in and make these decisions.
  3. “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
  4. “Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.

The court may also award custody to a third party if it finds it to be in the child’s best interests.

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?

As stated above, Connecticut courts base custody arrangements on the best interests of the child. As a general rule, a parent’s sexual orientation or marital status should have no bearing on a child’s best interests.

Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to your child. Any number of reasons can be cited, such as that the LGBTQ+ parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a bad role model, 

or that the parent’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 that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.

Is it considered harm to the child if they are teased about having a gay or lesbian parent?

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Does it matter if my ex knew or suspected I was LGBTQ+ before we separated?

It may make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a change in circumstances that alters the child’s best interests. If a spouse did not know of your sexual orientation or gender identity at the time of the court proceedings but learned of it later, they may argue that this is a change of circumstances and that the custody issues should be litigated anew.

Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

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

Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.

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 so will insist on specific proof.

Resources

History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia

Connecticut Estate Planning Laws: Connecticut Estate Planning Laws

Divorce Options in Connecticut: Divorce Options in Connecticut.

Do It Yourself Divorce Guide: Do It Yourself Divorce Guide (JDP-FM-179)

Divorce in Connecticut: Divorce in Connecticut – CT Judicial Branch

Filing for Divorce with Children: Filing for a Divorce with Children – CT Judicial Branch

Filing for Divorce without Children: Filing for a Divorce without Children – CT Judicial Branch

Connecticut Law About Child Custody and Visitation: Connecticut Law About Child Custody and Visitation 

Cases & Advocacy

To see Family cases or advocacy which GLAD has been directly involved with in Connecticut, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Connecticut.”

News & Press Releases

To see news and press releases about Family in Connecticut, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Connecticut.”