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Know Your Rights: Family Rights in Vermont

Family Rights

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Family | Relationships | Vermont

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 Vermont?

Yes. On April 7, 2009, Vermont became the first state to authorize marriage rights for same-sex couples through a legislative process rather than a court case. The bill, S.115 An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage (the “Marriage Act”), was passed by the legislature on April 3, 2009; vetoed by the Governor on April 6, 2009; and the veto was overridden by the Senate (23-5) and the House (100-49) on April 7, 2009. The Marriage Act took effect on September 1, 2009.

To find out how to get married in Vermont, see: Getting Married in Vermont

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 or our Vermont civil union?

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

However, spouses should note that when Vermont courts divide marital property and award alimony/maintenance, one of the factors a judge considers is the length of the marriage. Nonetheless, the court does include as marital property all property owned by “either or both of the parties, however or whenever acquired…” So, 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 Vermont and believe your division of assets may be unfairly affected by the length of the marriage, contact GLAD Answers.

If you have a Vermont civil union and live in Vermont, and you need to end it, you follow the exact same process as married couples do when they are divorcing.

If you do not have a Vermont civil union and DO NOT live in Vermont, if you meet the following criteria, you can end it in Vermont without needing to establish residency:

  1. The civil union was established in Vermont.
  2. Neither party’s state of residence recognizes the civil union for purposes of dissolution.
  3. No minor children were born or adopted during the civil union.
  4. The parties together file a complaint for dissolution along with a stipulation, or agreement, that resolves all issues in the dissolution.

Can same-sex couples obtain any other legal recognition of their relationships in Vermont?

Until September 1, 2009, same-sex couples were able to enter into a civil union in Vermont. However, effective September 1, 2009, Vermont no longer issues civil union licenses; but it will continue to recognize civil unions from Vermont and other states and provide those couples with all of the protections and responsibilities of marriage under Vermont state law. Couples who have a Vermont civil union, and wish to be married, will need to go through the process of getting married.

When the legislature enacted the civil union law in 2000, it also established “reciprocal beneficiary” relationships. These allow people who were at least 18 years old, not parties to a marriage, civil union, or other reciprocal beneficiary relationship, and not related by blood or adoption, to receive the protections and responsibilities granted to spouses in the areas relating to medical decision-making, end-of-life decisions, and abuse prevention. The reciprocal beneficiary law was repealed effective May 28, 2014, because, over the course of 14 years, no reciprocal beneficiary relationship had ever been established in Vermont.

What steps can a couple take to legally safeguard their relationship in Vermont?

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: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation. This kind of document serves a similar function to a prenuptial agreement. As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid. Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements)

2. Power of Attorney: Any competent person may appoint another person (such as one’s partner) as their “attorney-in-fact” for financial matters in the event the person becomes incapacitated or disabled.

This power of attorney can be extended to the time when the person is incapacitated if the power of attorney says, “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal.” If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney does not include authority to make health care decisions.

A person may also indicate their preference regarding the appointment of a guardian — a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (and courts consider the preference of the incapacitated person in appointing a guardian). The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.

3. Advance Directives for Health Care and Disposition of Remains: Under Vermont law, an individual may appoint an agent to make health care decisions for them upon incompetence, incapacity, or death and provide the agent with an advance directive that, for example, can:

a. direct the type of health care desired or not desired;

b. direct which life-sustaining treatments are desired or not desired;

c. identify persons with whom the agent should not consult or share information;

d. authorize the release of health information to other persons in addition to the agent;

e. make an anatomical gift pursuant to Vermont law;

f. nominate persons to serve (or not serve) as the individual’s guardian should that be needed;

g. direct the disposition of the person’s remains and the funeral arrangements.

Without an advance directive, medical providers and funeral directors look to a spouse or next of kin to make decisions. The advance directive can be revoked at any time by creating a new advance directive or by a clear expression of revocation. People often give a copy of their advance directive to their doctors and sometimes to family members.

4. Will: If a person who is neither married nor joined in a civil union, dies without a will, their property passes to: (1) their children or (2) their family. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate the future guardian of the children in a will.

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 that 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, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters, with no divorce system to help them sort through it. It is likely that Vermont courts will, under some circumstances, recognize contract theories and equitable principles to address the property and financial matters of a separating same-sex couple even without a written agreement. However, written agreements provide for greater security.

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 that 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 their partner and family 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.”

Does Vermont provide domestic partner benefits to state employees?

Yes. The State’s Personnel Policies and Procedures extend domestic partnership benefits to state employees. The benefits include medical and dental benefits, bereavement, and visitation rights. State employees interested in receiving health and dental insurance for their partners should contact the Department of Human Resources at (802) 828-3491 for an application, which can also be found on the state website.

To qualify as a domestic partner, a couple must:

  1. be each other’s sole domestic partner in an “exclusive and enduring domestic relationship”
  2. share a residence for at least six months prior to applying
  3. be 18 years of age or older
  4. not be married to anyone
  5. not be related by blood such they could not marry
  6. be competent to enter a contract, and
  7. have agreed to be responsible for each other’s welfare

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

Yes. Some of the cities that offer medical benefits for domestic partners of municipal employees include Burlington and Middlebury.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide domestic partners with 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 breakup;
  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.

How does a court generally go about making custody determinations?

Upon divorce or civil union dissolution, a court makes an order concerning parental rights and responsibilities of any minor child of the parties based on the best interests of the child. If the parties make an agreement about custody and visitation, the court will presume that agreement to be in the best interests of the child. If parents cannot agree, the court determines the way that parental rights and responsibilities will be divided or shared between them. In considering the best interests of the child, the court examines the following factors:

  • the relationship of the child with each parent and each parent’s ability to provide the child with love, affection, and guidance;
  • each parent’s ability to ensure that the child receives adequate food, clothing, medical care, other material needs, and a safe environment;
  • each parent’s ability to meet the child’s present and future developmental needs;
  • the quality of the child’s adjustment to the child’s present housing, school, and community and the potential effect of any change;
  • each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
  • the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
  • the relationship of the child with any other person who may significantly affect the child;
  • the parents’ ability to communicate, cooperate with each other, and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
  • evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.

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 that 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, Vermont 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 real, substantial, and unanticipated change in circumstances that alter the child’s best interests. If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, they may argue that this is a substantial 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?

The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation, but unless the partner is causing harm to the child— a very high standard— visitation should not be restricted.

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.

Resources

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

Vermont Estate Planning Laws: Vermont Estate Planning Laws – FindLaw.

Divorce: Divorce | Vermont Judiciary

Parental Rights & Responsibilities: Parental Rights and Responsibilities and Parent-Child Contact | Vermont Judiciary

Cases & Advocacy

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

News & Press Releases

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

Family | Parenting | Vermont

What is the Vermont Parentage Act?

The Vermont Parentage Act, or VPA, is a new set of state laws that expand the ways someone can legally establish that they are the parent of a child (also known as parentage). 

On July 1, 2018, the new Vermont Parentage Act (VPA) went into effect. Through the VPA, the Vermont Legislature rewrote Vermont’s laws on parentage to be modern and reflective of the great diversity of families in Vermont. What this means for children and families in Vermont is that there is greater clarity on who can establish parentage and how to establish parentage. Securing a child’s relationship to their parent(s) is one of the most important components of stability and security for a child.

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 VPA passed now?

For years, Vermont courts have called upon the legislature to modernize the state’s parentage laws as they were forced to decide cases without clear statutory guidance. In response, the legislature established a Parentage Study Commission during the 2016-2017 legislative session. The Parentage Study Commission was comprised of a broad array of stakeholders. The Commission studied the existing parentage laws and case law, and it made recommendations about necessary changes. Their work culminated in a report issued in October 2017 which included the proposed legislation that would become the VPA.

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 Vermonters establish parentage under the VPA?

The VPA provides that Vermonters can establish their parentage in the following ways:

  • Giving birth (excluding surrogates)
  • Adoption
  • Acknowledgment
  • Adjudication
  • Presumption
  • De facto parentage
  • Genetic parentage (excluding donors)
  • Assisted reproduction
  • Gestational carrier agreement

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 or is an intended parent under a gestational carrier agreement. 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 Voluntary Acknowledgement of Parentage (VAP), by an adjudication, or as otherwise provided in the VPA.

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 that was terminated by death, annulment, or divorce;
  • You married the child’s birth parent after the child was born, asserted parentage, and are named as a parent on the birth certificate;
  • You resided with the child in the same household, and you and another parent held the child out as your child for two years after birth or adoption and assumed personal, financial, or custodial responsibilities for the child.

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 a significant amount of time;
  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 that 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.

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 Acknowledgment 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 a Vermont Voluntary Acknowledgment of Parentage (VAP)?

You can voluntarily acknowledge the parentage of a child by signing a form from the Vermont Department of Health known as a “Voluntary Acknowledgement of Parentage” or VAP. A VAP must be signed by the birth parent and the other parent. 

If you are the non-birth parent, you can sign a VAP if you are a genetic parent, an intended parent of a child born by assisted reproduction or by a gestational carrier agreement, or a presumed parent of the child. 

Signing a VAP form is voluntary, and it can be done at the hospital soon after birth or at another time. A VAP form must be witnessed and signed by at least one other person. If one person does not want to sign this form, then the other parent can try to adjudicate parentage through the courts.

When can I not establish parentage through a VAP?

  • 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 establishes 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 a VAP?

A VAP 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.

How can a VAP be rescinded?

A party who signed the VAP may rescind an acknowledgment of parentage or denial of parentage by:

  1. Filing a rescission with the Department of Health within 60 days after the effective date of the acknowledgment or denial. The signing of the rescission shall be witnessed and signed by at least one other person.
  2. Commencing a court proceeding within 60 days after the effective date of the acknowledgment or denial.
  3. Challenging the acknowledgment or denial within the earlier of 60 days after the effective date of the acknowledgment or denial or within 60 days after the date of the first court hearing in a proceeding in which the signatory is a party to adjudicate an issue relating to the child.

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

The VPA 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 or gestational surrogacy, you can establish parentage by signing a VAP.

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 VPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

How does the VPA help people who conceive through assisted reproduction?

The VPA provides important clarity and protections for children born through assisted reproduction. The VPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the VPA 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 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. Single-parent adoption is when a single individual adopts a child. All three of these are legal in Vermont.

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, Vermont law and the law of all states presume 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 Vermont couples have a second way to protect the parentage of the non-biological partner by signing a Voluntary Acknowledgment of Parentage.

If I am a parent who has signed a VAP, do I also need to do a second-parent adoption?

No. A parent who has signed a VAP should not need to do a co-parent adoption to establish parentage. A VAP 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 a VAP. To understand what is best for your family, individualized legal advice is recommended.

How does the VPA address surrogacy?

The VPA has comprehensive provisions about how to establish parentage through a gestational carrier agreement. All parties to a gestational carrier agreement must have independent counsel throughout the process.  This is a brief overview of the law for informational purposes.

Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement. This agreement is between you, any other intended parents, the person acting as a carrier, and the spouses of any of those parties (if applicable). This agreement will establish that you are the parent(s) of the child and that the carrier and their spouse, if applicable, do not have parental rights or duties. To enter into a gestational carrier agreement, the following must be true:

  1. All intended parents and the carrier must be at least 21;
  2. All intended parents and the carrier must have completed a medical evaluation and mental health consultation; and
  3. The intended parent(s) and the carrier must be represented by separate lawyers for the purposes of the agreement, and the carrier’s attorney must be paid for by the parent(s).

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

What does Vermont law say about traditional or genetic surrogacy? 

The VPA only allows traditional or genetic surrogacy if the surrogate is a family member. Someone who is not a family member cannot act in this role. Even with a family member, the law’s requirements for a valid agreement, and all of the other protections of the statute outlined above, apply.

What if I am not married?

The VPA 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 VPA aims to treat all Vermont families equally.

What if I am transgender or non-binary?

The VPA 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 VPA, 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 VPA aims to treat all Vermont families equally.

Can a child have more than two legal parents?

Yes. Under the VPA, 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 age of the child, 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 VPA 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 VPA 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 satisfies 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 calling 800.455.4523 (GLAD).

Resources

Vermont Voluntary Acknowledgment of Parentage information and form: Acknowledging Parentage in VT

Vermont Parentage Act: Title 15C: Parentage Proceedings.

More information about VPA: 

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

 

Cases & Advocacy

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

 

News & Press Releases

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