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A Family with Two Moms, Except in the Eyes of the Law

Same-sex wedding cake topper figurines
Getty Images
Same-sex wedding cake topper figurines

Same-sex couples raising children must stand ready to prove to the world they are a family, just one that happens to have two mothers or two fathers.

This constant burden of proof is especially difficult for families like the Muzingos, who live in a state that doesn’t allow them to establish legal ties to each other.

Michelle Muzingo was in the delivery room when her wife, Katrina, gave birth to each of their three children, who are now 7, 4 and 1. She cut their umbilical cords and was the first to hold the children, who call her “mommy.”

Yet because they live in Ohio, a state that does not allow gay couples to adopt, she is unable to make that title official.

“We are always scanning the circle around us to see what we need to put in place to protect ourselves,” said Katrina, 37.

A report released earlier this week illustrates just how vulnerable these couples and their children are, both legally and financially. After all, 30 states do not have laws that allow same-sex parents to both adopt, while six states restrict them or impose outright bans.

Even families who live in states that recognize their relationships can run into trouble if they travel or move. And if something were to happen to a parent who was unable to adopt or otherwise establish legal ties, the child might be denied certain federal benefits — something that children of most heterosexual parents receive automatically.

“Outdated state laws really place children being raised by lesbian and gay families at risk, whether they do so intentionally through antigay legislation or whether they do so unintentionally because they haven’t updated their laws to reflect modern and contemporary family structures,” said Laura Deaton, policy research director of Movement Advancement Project, which wrote the report with two other research and advocacy groups, the Family Equality Council and the Center for American Progress.

The Muzingos, who live in Brunswick Hills, Ohio, but married in Canada in 2005, know their children would be unable to collect Social Security death or disability benefits on Michelle’s work record.

“We have way more life insurance than probably a typical middle-class family,” said Katrina. “If something were to happen to Michelle, the sole breadwinner, we would have zero rights to her Social Security, to her pension, to anything.”

They have to deal with smaller inconveniences, too. When the couple went to sign up their son Carter for kindergarten, they had to get a notarized letter stating that he lived in the family’s home in the school district because the home was in Michelle’s name only (Michelle, 42, said she was unable to easily add Katrina to the title at closing because their marriage wasn’t recognized and Katrina wasn’t on the mortgage).

Michelle’s guardianship papers, which they drafted shortly after Katrina became pregnant for the first time, weren’t enough. And as the couple has learned, those papers — along with the powers of attorney, health care proxies and wills, which together cost $2,000 — don’t guarantee that they’ll be recognized as a family.

The same goes for many of the estimated two million or more children being raised by lesbian, gay, bisexual and transgender parents who are unable to formalize relationships with both of their parents, according to the report.

These families bear a variety of financial, legal and emotional costs. A child may be unable to receive insurance through the employer of a nonbiological parent, for instance, a particularly big burden if that parent is the sole breadwinner. (Even if the parent’s employer does provide coverage, the family may owe extra taxes on the value of that insurance, unlike their heterosexual married peers with children.)

The same parent may not have the authority to make routine or emergency medical decisions for the child, or even sign a school permission slip. And in the event of a breakup, both parent and child could be hurt: the child may be denied financial support from a parent, or the parent may be denied visitation rights.

“When both parents have legal ties to their children, family court can award custody and visitation to the most suitable parent or jointly to both parents based on the interest of the child,” the report said, “as opposed to having to exclude one parent from consideration.”

The inequities don’t end there. If the biological or legal parent were to die or become disabled, the child could be placed with a distant relative or in foster care instead of staying with the nonlegal parent. Having a legal relationship also provides children with the right to sue over a parent’s wrongful death, and it usually gives them the right to inherit from a parent who dies without a will.

So many families go to great lengths to establish strong legal relationships where they can. Take, for instance, a lesbian couple with one spouse who is pregnant. The report said that, with the exception of Iowa, all states that recognized their union would allow the second mother to be listed on the child’s birth certificate because the state’s statutes recognized her as the “presumed parent.” This is an easy and free way to establish legal ties.

But some lawyers still advise the nonbiological parent to go through the adoption process anyway. Why bother adopting your own child? If the family moves or travels to a less friendly state, that state generally must honor another state’s court judgments — but it is not obliged to honor birth certificates or relationships borne from a state statute. Adoption also creates an independent legal tie between parent and child, the report said, regardless of the parents’ relationship.

And adoption is easy for most people to understand. “Most schools, churches, summer camps and doctors understand adoption and adoption judgments,” Ms. Deaton added.

The road to adoption, however, can be more arduous and costly for same-sex couples, depending on where they live. Fifteen states plus the District of Columbia recognize same-sex unions — whether through marriage or a domestic partnership — and permit the couples to adopt jointly. An individual who is married to a child’s parent can usually adopt through a relatively streamlined and simple process known as stepparent adoption.

Five additional states — Colorado, Indiana, Maine, Montana and Pennsylvania — allow second-parent adoptions. This allows the partner of a legal parent to adopt even if the adults aren’t considered married, though they usually have to clear more hurdles.

In Colorado, second-parent adoptions require a background check, fingerprints and a home study, under which a social worker evaluates the home and adoptive parent. The cost can run $800 to $2,000, according to Erica Johnson, an estate planning lawyer with Ambler & Keenan in Denver. If the couple decides to hire a lawyer, they have to pay $1,400 to $2,000 more, she said, while stepparent adoptions are much easier.

“If they were able to get married, they don’t have any of that intrusiveness,” said Ms. Johnson, adding that the process can take months.

Beth Moloney, who lives with her wife, Barbara, in Providence, R.I., gave birth to a daughter last September. And even though the couple was married in Massachusetts in 2010 and their state recognizes civil unions, they were unable to list Barbara as a parent on their daughter’s birth certificate.

So Barbara pursued a second-parent adoption, which she completed earlier this year. “It’s like a bad movie in a lot of ways,” Ms. Moloney said. “Barbara was there when she was conceived, when she was born, was the first to hold her, and she swaddled better than I did. And here’s the state saying you’re not a parent.”

Since Barbara had to live with the baby for at least six months before the adoption could be completed, Beth said they were afraid to visit friends out of state until everything could be fully documented. “I understand in a regular adoption why these things are important,” Ms. Moloney said.

“But this is not a regular adoption. There is no third person we are taking out of the picture. There is just us.” And while some states offer new types of protections, the lack of consistency across the country — depending on which courthouse you visit, or even within states that have policies — means many children are left with legal ties to only one parent.

Repealing the law that defines marriage as between one man and one woman — part of the Defense of Marriage Act, known as DOMA — wouldn’t solve these issues either. It would help children become eligible for certain federal benefits in states that allow same-sex couples to marry, and it would help families qualify for child-related tax deductions and credits. But it wouldn’t oblige states to perform second-parent adoptions, for instance.

Ms. Moloney said she hoped that by the time her daughter grew up, these obstacles would be gone. “When I sit here and look at my daughter, I think, by the time you are a young adult and you are out in the world, I hope that you will be telling your friends, ‘Oh, my parents had to do this. Isn’t that silly?’ ”

“I hope so,” she added. “I really do.”

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