Legal Hoops for Gay Parents

New York Times reports:

MOST pregnant women avoid long road trips right before their due date. But Amanda and Kay Shelton, a lesbian couple in Beverly Hills, Mich., contemplated traveling more than 600 miles to New Jersey so Amanda could give birth in a state where their baby could have two “legal” mothers.

Michigan, along with several others, doesn’t allow same-sex couples to perform second-parent adoptions, which allow one partner to adopt the other’s biological or adopted children. They never did make the long trip, which would have allowed Kay to begin adoption proceedings immediately. “It was not terribly practical, so we were kind of in a difficult spot,” said Amanda, 34.

The inability to adopt is one of many legal and financial inequalities the Sheltons face because their state and the federal government do not recognize their union, which they affirmed in a ceremony almost 11 years ago.

Though Kay, 37, is known as “mama” to their children — Maya is 3, Myles, 8 months — the state government still views her as a legal stranger. So Amanda, who works as acommercial litigator for a law firm in Detroit, must sign a notarized document every six months that gives Kay, who stays home with the children, parental consent. But they have often wondered if there was more they could do to strengthen those legal ties, or to improve their financial situation. So we asked three experts in same-sex issues — a lawyer, a financial planner and an accountant — for advice.

LEGAL DOCUMENTS The Sheltons say their top priority is their children. If Amanda were unable to care for them, Kay said, “I would not want them missing from me, even for a day.”

Michigan recognizes second-parent adoptions performed elsewhere, but that would require establishing residency in a state where Kay could adopt. That can take more than a year.

Several documents are available to create as many rights as possible for the couple, according to Mary Kator, chief counsel at the Rainbow Law Center, a firm in Southfield, Mich. Without the documents, Kay, a former auto mechanic, is vulnerable — especially if the couple ever splits up.

Instead of relying on the renewable parental authority document, she suggested a “power of attorney for parental authority,” which does not expire. It would allow Kay to act on the children’s behalf, whether it was for a trip to the doctor’s office or a visit with a teacher. “It has never been challenged and as a practical matter, it works,” Ms. Kator said.

Ms. Kator also suggested a parental appointment of guardian, which would designate Kay as the children’s guardian in the event that Amanda died or became incapacitated, giving Kay priority over any blood relatives.

They also need to update their wills: Amanda should appoint Kay as the children’s guardian, but the documents should also express that Kay be treated as a co-parent.

“Even the ring your partner has given you will belong to your birth family upon your death,” said Ms. Kator of same-sex couples in Michigan who die without a will.

Since many of the couple’s assets would pass to one of them directly because they are either jointly held, like their home and savings accounts, or, in the case of Amanda’sretirement accounts, have Kay listed as the beneficiary, Ms. Kator did not think it was necessary to use a revocable living trust.

The trust is often recommended for couples with substantial assets that may be subject to probate, the process to settle a deceased person’s estate. Assets held in the trust bypass that process. The couple do need to make sure their beneficiary designations are kept up to date.

The Sheltons already have medical powers of attorney that allow them to make medical decisions for each other. Ms. Kator suggested making them broader and more explicit, giving each partner broad visiting rights and authorizing a health provider to give them medical information. The couple already have a durable power of attorney that would allow them to handle legal and financial matters for each other.

Finally, they should set up a domestic partner agreement and a co-parenting agreement that outlines how to handle child support and parenting should the couple ever split. This is especially important for Kay, since she is not a legal parent and has no wage-earning job. “In our community, because we don’t have divorce courts we don’t have the ability to address this economic inequality, and a domestic partner agreement can substitute for that,” Ms. Kator said.

FINANCIAL CONCERNS Since Kay isn’t earning any money, she cannot use any tax-advantaged savings vehicles for retirement — these require earned income. And Amanda can’t contribute to a spousal I.R.A. on her behalf, since they cannot marry.

Kay isn’t entitled to receive Social Security benefits on Amanda’s earnings record, either. Normally, lower-earning spouses can receive up to half of their spouse’s benefits, if those are higher than their own. Surviving spouses are also entitled to collect their husband or wife’s higher benefits instead of their own. “I know I need to be saving more for her, but I’m not,” said Amanda, who puts about $6,000 a year in her 401(k). It would be difficult, if not impossible, to divide that up should they split. Married people who divorce can divide retirement plan assets without having to pay taxes or penalties on withdrawals, but the Sheltons wouldn’t have those privileges, said James Tissot, president of Prism Planning in New York.

“The biggest issue as you go forward is the disparity between the two retirement plans and coming up with something that is equitable,” he told the couple. That agreement should be included in a domestic partner agreement.

After paying down certain debts, he suggested that Amanda at least double her savings.

TAXES If the Sheltons could file their federal returns jointly, they would save several thousand dollars in taxes. Instead, Amanda files her federal tax return as “head of household,” and claims the children and Kay as dependents. Tax rates are higher for people who file as head of household compared with couples who file jointly, so they end up paying at least $3,000 more, according to Tina Salandra, an accountant and president of Numerical L.L.C.

But they could do something that would help Kay save for retirement: Amanda could hire Kay as a nanny and pay her $3,649 a year, which she could then put into a Roth I.R.A. (Kay needs to earn less than $3,650 for Amanda to continue to claim her as a dependent, Ms. Salandra said.) Kay and Amanda would both owe Social Security and Medicare taxes, and Amanda would need to pay state unemployment taxes. That’s roughly $644 in total, but Amanda could deduct her share of the payroll taxes as itemized deductions on her return. After reviewing the advice, the Sheltons said their first priority would be to put the extra parental protections into place, then update their will.

The couple said they were optimistic that, someday, their family would be able to avoid all of these extra costs and hurdles. “I would love to have another wedding because I loveweddings,” Amanda said, laughing.  “And I would love to have our kids there and to be part of that. I am hopeful.”

http://www.nytimes.com/2011/03/24/your-money/24financial-and-legal-issues-facing-gay-parents.html

Lesbian couple open the UK’s first same-sex only fertility clinic

Co-ParentMatch.com wishes Natalie and Ashling the best of luck with their brilliant new same-sex fertility clinic.

DailyMail reports:

A lesbian couple are to open Britain’s first gay-only fertility centre.

Natalie Drew and Ashling  Phillips, who have two children by a sperm donor, said they decided to set up a centre exclusively for gay people after their own experiences in trying to start a family.

The Gay Family Web Fertility Centre opens its office on Monday in Birmingham where it will ‘match-make’ potential parents with sperm donors, egg donors or surrogates

The couple say that there are not enough resources for same-sex couples because much of the  current advice is focused on heterosexual couples.

Miss Drew, 35, said: ‘One lady we spoke to was having trouble  conceiving, but she was told that she wasn’t eligible for treatment because she hadn’t had sex with a man within the last 10 years.

‘Most of the GPs will try to be progressive, but they will refer to the person carrying the child and not the partner, which makes them feel excluded.’

The couple started the fertility centre online in 2007. Following a surge in demand they have decided to set up an office, with a nurse to carry out blood tests and other checks, and a counsellor to provide support from conception to childbirth.

Miss Drew and Miss Phillips said they had suffered problems when trying to conceive their daughter Gianna, five, and son Kai, two.  Doctors had asked them to bring the father in for tests, she said, which was difficult because he lived in London.

Miss Drew said she was made to feel alienated by the process because Miss Phillips, 32, was  carrying Kai and staff addressed her as the mother, rather than including both of them.

She added: ‘A lot of the criteria is outdated and hasn’t moved with the times. Some couples were spending thousands of pounds going through the process and were no further forward.

‘We wanted to set up something where we would act as a go-between and where couples could meet potential donors face-to-face to work out how they would work things out. We also want to save people from having to explain their situation: that they are gay and using a donor.’

The service helped 60 couples last year and costs £9.99 a month, with extra fees for tests and consultations.

The project has been criticised by Christian groups

Mike Judge, of the Christian  Institute, said: ‘Kids need a mum and a dad, a male and female role model. This is denying that.

‘This clinic is more to do with the desires of adults rather than the best interests of children.’

Miss Drew said: ‘There is a lot of research to say that children brought up by same-sex couples are just as happy as children from traditional families.

‘We have had a bit of hostility, more from different gay groups that run similar centres who are a bit hostile because we’ve stood up and said that this needs to be exclusively gay.’

A Home Office spokesman said: ‘The law is very clear: someone who is providing a service cannot refuse to serve somebody on the basis of their sexual orientation, but in this case they can market themselves as a same-sex fertility clinic.

‘However, if a straight couple were to approach them for help, they would not be able to refuse to serve them.’

The pair say they would not turn away a heterosexual couple, but the clinic’s priority is people in same-sex relationships.

http://www.dailymail.co.uk/health/article-1368707/Gay-family-planning-Lesbian-couple-open-countrys-fertility-clinic-aimed-sex-couples.html

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