Children & the Law Section Blog: The Status of LGBT Parental Rights in Wisconsin after Pavan v. Smith:

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  • Children & the Law Section Blog
    December
    12
    2017

    The Status of LGBT Parental Rights in Wisconsin after Pavan v. Smith

    Emily Dudak Taylor, Kristi Baker

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    Recent – and dramatic – changes in the law have granted marriage and parental equality to lesbian, gay, bisexual and transgender families – but should same-sex parents still obtain a court order for adoption? Emily Dudak Taylor and Kristi Baker discuss the relevant recent cases and the best way to ensure a child’s access to both parents for years to come.

    The past three years have seen dramatic changes in the law for lesbian, gay, bisexual and transgender (LGBT) parents and families in Wisconsin and throughout the United States.

    There are four cases to know:

    • The cases of Wolf v. Walker and Obergefell v. Hodges brought marriage equality first to Wisconsin in 2014 and then to the entire United States in 2015.
    • The cases of Torres v. Seemeyer and Pavan v. Smith brought parentage equality first to Wisconsin in 2016 (in part) and then to the entire United States in 2017 (in full).

    Advocates for children should be aware of these new cases, and consider how the cases may affect their particular area of children’s law, for example, when identifying who has parental rights in CHIPS, TPR, and divorce cases.

    Wolf v. Walker and Obergefell v. Hodges

    Wolf v. Walker is the federal appellate decision that brought marriage equality to Wisconsin on Friday afternoon, June 6, 2014.1 The decision, and therefore marriage equality in Wisconsin, became final on Oct. 6, 2014, when certiorari was denied by the U.S. Supreme Court.2 Less than one year later, on June 26, 2015, the U.S. Supreme Court announced its decision in Obergefell v. Hodges, and brought marriage equality to the entire United States.3 The decision was final and binding throughout the United States on the day it was issued.

    Together, these two marriage equality cases provide the following:

    • that same-sex couples must be allowed to marry in Wisconsin and every other state;
    • that out-of-state marriages must be recognized in Wisconsin and every other state;
    • that the rights, benefits, and responsibilities of marriage must be applied equally to same- and different-sex couples; and
    • that all of this must happen right now, not later after additional policy debate, litigation, or legislation.

    Wisconsin, and a few other states, initially refused to fully implement marriage equality and apply all of the benefits of marriage to same-sex couples on the same terms as different-sex couples. This resulted in additional litigation, especially in the area of parental rights.

    Parentage equality became the new battlefront.

    Torres v. Seemeyer

    Torres v. Seemeyer is the federal district court decision in 2016 that requires the State of Wisconsin to ungender and apply Wisconsin’s artificial insemination statute, Wis. Stat. section 891.40, equally to same- and different-sex couples.4

    Emily Dudak Taylor Emily Dudak Taylor, Tulane 2005, is a partner at The Law Center for Children & Families in Madison, where she focuses her practice on adoption, immigration, assisted reproduction, and LGBT family formation.

    Kristi Baker Kristi Baker, Hamline 2014, is an attorney with The Law Center for Children & Families in Madison, where she focuses on school law, family law, and foster parent and grandparent rights.

    That statute provides that, if a husband consents to the artificial insemination of his wife in writing, he is the legal parent of the resulting child. The court ordered Wisconsin Vital Records to issue two-parent birth certificates for children born to married same-sex couples in this way, if the couples comply with the artificial insemination statute’s requirements.

    Pavan v. Smith

    Pavan v. Smith is the U.S. Supreme Court decision, issued June 26, 2017, that held Arkansas’ marital presumption of paternity and artificial insemination statutes must be applied equally to same- and different-sex married couples.5

    The Court in an unusually short (five-page) decision, and without oral argument or the regular briefing schedule, summarily reversed the Arkansas Supreme Court. The Arkansas Supreme Court had allowed Arkansas Vital Records to refuse to apply the marital presumption of paternity and artificial insemination statutes to married lesbian couples and to refuse them two-parent birth certificates.

    The U.S. Supreme Court said that it already decided this issue in Obergefell. It said, citing its own Obergefell decision, that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples,” including “the constellation of benefits that the States have linked to marriage.”

    A bit exasperated, the U.S. Supreme Court said: in Obergefell we even “expressly identified ‘birth and death certificates.’ That was no accident: several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates.”

    With this short decision, the U.S. Supreme Court closed the door on this issue and brought parentage equality to the entire country.

    Court Orders: Still Needed

    However, even with these positive changes in the law, it is still recommended that same-sex couples who conceive their children through assisted reproduction obtain a court order regarding their parental rights, to ensure that both parents are recognized and afforded equal treatment throughout the United States.

    Such a court order will also protect the child’s access to both parents’ love, care, and support, in the event of divorce, death, or incapacity. Same-sex couples should not rely upon their now-legally recognized marriages, or even their child’s birth certificate listing both parents, to protect their family. They need a court order.

    Ensuring Portability

    This recommendation is due to “portability of judgment.”

    Families that travel outside of Wisconsin need to know that their joint legal parentage will be respected and recognized. A birth certificate does not provide such security. A court order is necessary to receive Full Faith and Credit under the U.S. Constitution.6

    A court order is also recommended for portability in time. If a couple rests on a birth certificate alone, and the legislature changes the law of parentage in the future, ambiguity would result. Only a court order will freeze time and clearly survive changes in the law.

    In addition, if parental rights are ever challenged in court (such as by a family member, one of the parents, or a third party service provider such as a health insurance company), a court order will provide much stronger protection than just a birth certificate.

    This is a bitter pill for same-sex couples, since different-sex couples are not advised to do the same, but the legal consensus on this issue is wide.7

    Obtaining a Court Order

    The recommended court order can be obtained in two different ways in Wisconsin, depending on the facts of the family:

    • via a parentage petition (similar to an uncontested paternity action, invoking Wisconsin’s marital presumption of paternity/parentage, Wis. Stat. section 891.41 and/or Wisconsin’s artificial insemination statute, Wis. Stat. section 891.40); or
    • via a so-called “step-parent” adoption.

    Note: an expanded version of this article will appear in the upcoming issue of the Children and the Law Section newsletter.

    Endnotes


    1 986 F. Supp. 2d 982, 1028 (W.D. Wis. 2014) (declaratory judgment and opinion).

    2 986 F. Supp. 2d 982 (W.D. Wis. 2014), aff’d sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert. denied, 574 U.S.____, 135 S. Ct. 316 (No. 14-278).

    3 576 U.S.____, 135 S. Ct. 2584.

    4 No. 15-CV-288-BBC (W.D. Wis. Sept. 14, 2016).

    5 582 U.S.____.

    6 See Adar v. Smith, 639 F.3d 146 (5th Cir. 2011).

    7 See the National Center for Lesbian Rights’ advisory on the issue of portability.





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