Review of guide for gay and lesbian couples

My book review of Nolo publisher's "A Legal Guide for Lesbian and Gay Couples" appears in the December 2010 issue of Wisconsin Lawyer. In summary, the guide gives some basic information for couples or attorneys, but sometimes the information is a bit outdated or better available elsewhere, like specialized online sources. Because the guide is written for a lay reader, it is probably not very useful for attorneys (who are the reading audience of my review) unless it is used as a very basic starting point for understanding issues for lesbian and gay couples.

When older parents get remarried

This article from the Wall Street Journal/Smart Money gives some great information and helpful suggestions regarding property and estates when older parents remarry. Careful consideration should be given to how to provide for a surviving spouse, but also to leave whatever desired (by the parent) inheritance to the children of the prior marriage. A couple possibilities include a prenuptial agreement or a trust.

Without careful planning, the adult children and the surviving spouse may be at odds, even to the extent of fighting over an estate in court. For example,

Most lawyers and financial planners agree that the families that get cross-ways are those that don't communicate. [An Atlanta attorney] says there is a saying in the field: "People get over the loss of a loved one sooner than the loss of an inheritance."

Korean scholars revisit international adoptions from Korea

In recent news from my alma mater, St. Olaf College, English professor, Jennifer Kwon Dobbs, is mentioned for her co-authored essay, "Rethinking Consent to Adoption," about internation adoptions of Korean children.

Concerning the numbers for 2009,

With the international trend clearly turning toward domestic solutions and family preservation, we may wonder why over 1,080 babies went to the U.S. from South Korea this year for adoption.

The authors continue by pointing out the legal (and fading cultural) bias against unwed mothers. That bias has been the engine behind moving the children of those unwed mothers into adoption, rather than promoting family preservation or even domestic adoption within Korea. The writers note that the laws are changing to accomodate a longer period for a mother to consider placing her child for adoption, but they encourage that much more be done to improve the attitude and process of adoption in Korea.

Fascinating perspective.

Mayo Clinic electronic newsletter

The Mayo Clinic website has tons of great information, even beyond what we usually consider medical information, such as healthy eating and various aspects of healthy living. On the Clinic's homepage, you can sign up to receive its electronic newsletter.

Recently, the newsletter ran this helpful piece on talking to children about adoption. Topics in the article include when to talk to your child about adoption, how to discuss it, how to address racial or cultural differences, and answering children's questions.

Insights into international adoptions

A story in the New York Times looks at international adoptions, especially adoptions of Korean children in the 1950s to 1980s, and the difficulty with cultural and racial adjustments the children went through. Now adults, numerous adoptees were interviewed for a report, which enlightens many issues of transracial adoptions.

The report was issued by the Evan B. Donaldson Adoption Institute, a nonprofit adoption research and policy group based in New York. Since 1953, parents in the United States have adopted more than a half-million children from other countries, the vast majority of them from orphanages in Asia, South America and, most recently, Africa. Yet the impact of such adoptions on identity has been only sporadically studied. The authors of the Donaldson Adoption Institute study said they hoped their work would guide policymakers, parents and adoption agencies in helping the current generation of children adopted from Asian countries to form healthy identities.

“So much of the research on transracial adoption has been done from the perspective of adoptive parents or adolescent children,” said Adam Pertman, executive director of the institute. “We wanted to be able to draw on the knowledge and life experience of a group of individuals who can provide insight into what we need to do better.”

The study recommends several changes in adoption practices that the institute said are important, including better support for adoptive parents and recognition that adoption grows in significance for their children from young adulthood on, and throughout adulthood. South Korea was the first country from which Americans adopted in significant numbers. From 1953 to 2007, an estimated 160,000 South Korean children were adopted by people from other countries, most of them in the United States. They make up the largest group of transracial adoptees in the United States and, by some estimates, are 10 percent of the nation’s Korean population.

The report says that significant changes have occurred since the first generation of adopted children were brought to the United States, a time when parents were told to assimilate the children into their families without regard for their native culture.

Yet even adoptees who are exposed to their culture and have parents who discuss issues of race and discrimination say they found it difficult growing up.

Modern families are complex families

Many people think that modern families are more complex than the "traditional" families of the past. However, I think the Leave It to Beaver household is largely a fiction of the 1950's. Even before divorce was widely acceptable and available, many families were disrupted by death, abandonment, or financial crisis. In my own family, a great-great-grandmother of mine was widowed young with a small child, then widowed again in her later years, and remarried each time.

In this piece from the New York Times blog "The New Old Age," the complicated scenarios surrounding caring for divorced elderly parents and their ex- and current spouses shows the latest variation on family life. Here's just a brief excerpt:

With remarriages, moreover, the cast of characters increases. Children may find themselves caring for three or four older people instead of one or two, dealing with several sets of doctors, social workers, accountants and attorneys. And with stepsiblings, sometimes a squadron of them.

And you can just guess the potential for conflict, either among adult children/stepchildren or between children and parent's "new" spouse. Topics such as nursing care, assets, or inheritance are potential sources for conflict over which families (and their attorneys) can fight.

Wisconsin domestic partnership law...

became effective August 3, 2009. Here is how the day unfolded in Madison, according to the Wisconsin State Journal. According to Fair Wisconsin's summary (pdf), registered domestic partners have 43 of the over 200 rights of married couples. Still, that has not stopped a conservative group from suing the governor, alleging that domestic partnership provisions violate the 2006 state constitutional amendment defining marriage as between one man and one woman and prohibiting anything "substantially similar" to marriage. Here's the latest from the Wisconsin State Journal on that suit.

Adoption can be an uphill struggle

In a heartwrenching story, with a likely happy ending, a West Virginia couple learned that giving foster care to a child does not always neatly lead to the availability of the child for adoption. In the New York Times account of the story of Kathryn Kutil and Cheryl Hess, it was even more complicated by the state's position on their same-sex relationship. Early in the article, the reporter asks, "Was it somehow O.K. for a lesbian couple to care for older kids no one else would take in but not for a newborn whom another set of more "deserving" parents might want?"

Several states outright prohibit adoption by homosexuals, and in some states only one party of a gay couple can adopt but not both parties. In the case of Kutil and Hess, when their infant foster child became available for adoption, the court opined "that the best interest of the child is to be raised by a traditional family, mother and father."

Ultimately, the West Virginia supreme court had to decide that the judge had improperly weighed the various factors to determine the best interest of the child. However, the adoption will still require approval of the state health and human services department and confirmation by a county judge, all of which will take several more months.

As Kathryn Kutil said before the jury in the county courthouse, "We've done nothing wrong but love this baby and love her with everything we had."

Even the best-laid plans...

can go awry. Sometime we call this "law in action"--when the legally correct thing is ignored, and the person in front of you says something else is required or expected. Case in point, the instances where same-sex partners were denied visitation access to their ill partners in hospitals. The New York Times reported on two such couples, where the access-seeking partner had a valid health care power of attorney, but was turned away anyway.

[One] case, now the subject of a federal lawsuit in Florida, is being watched by gay rights groups, which say same-sex partners often report being excluded from a patient’s room because they aren’t “real” family members.

And lawyers say the case could affect the way hospitals treat all patients with nonmarital relationships, including older people who choose not to marry, unmarried heterosexual couples and single people who rely on the support of close friends rather than relatives.

One point of contention in the lawsuit is whether a hospital has a legal duty to its patients to always give visiting rights to their designated family members and surrogates.

Stay turned for an interesting, evolving area of healthcare, family, and patient-rights law.

Elder mediation as an option for resolving disputes

Morning Edition on National Public Radio ran this story about turning to a mediator when adult children and elderly parents have a dispute about the parent's affairs.

In one example, the mediator said, "[The father] simply didn't want any of his kids to know how much money he had and how his finances were organized."

But as the report continued, " [T]hings were getting worse. One son insisted on going to court to get his father declared mentally incompetent, so the family could take control of the father's finances."

The story goes on to decribe the benefits of involving an outside, neutral party to mediate the matter. The downside may be that there are no national standards for mediating, so the family needs to carefully interview the potential mediator for qualifications. One option for finding a mediator is Eldercare Mediators (I have no basis to vouch for the quality of the organization beyond the reference in the NPR story.)

Perhaps this type of scenario is another opportunity for collaborative law.

Lots of hub-bub about same-sex marriage

First, the Iowa Supreme Court struck down that state's statutory ban on same-sex marriage on April 2.

Next, on April 5, the Vermont house and senate passed legislation, overriding the governor's veto, to allow same-sex marriage.

Check out today's New York Times article on the move toward equality flowing through Iowa, Vermont, and beyond.

Just for a bit more fodder, consider how the cultural definition of marriage is shifting, as discussed in this article from Slate.com. In looking at how various dictionaries have expanded their definitions of marriage, the article comments:

[F]or those judges who are open to the notion that statutory and constitutional meaning can change over time, the dictionary acceptance of same-sex marriage will offer evidence of a shift in public views. Instead of fending off or ignoring the dictionary, gay advocates will be able to cite the new editions in their briefs. The new entries in Webster's, Black's, and soon the OED signal that the idea of same-sex marriage has come of age. The Supreme Court cited an "emerging awareness" that gay people shouldn't be treated like criminals in striking down remaining state sodomy laws in 2003. Now the dictionaries herald the same kind of "emerging awareness" about gay marriage.

Collaborative family law membership

I have recently become a member of the Collaborative Family Law Council of Wisconsin. In an earlier post, I described the collaborative style of law. Members of the council have access to educational and marketing resources, as well as a network of like-minded attorneys and other professionals to work with.

Besides the ways that collaborative law can assist divorcing couples, I am interested in the ways the collaborative approach can facilitate other family legal scenarios, such as estate planning.

"How much is that doggy in the split-up"

Okay, I'm showing my age with that (lame) reference to popular music (of another century, no less). However, the ABA family law listserv recently circulated this appeals case from New Jersey, under the subject of "dog custody." While that label gets attention, the decision is not really about custody at all, with no analysis parallel to child custody (except for a footnote alluding to amicus briefs asking the court to apply a "best interest of the dog" standard).

In the end, the court said the woman should receive the dog, not just its cash value. The court's analysis went like this. Beginning with the finding of the lower court, the court determined that the couple had agreed that the woman would receive the dog when they divided their property upon their split. (The couple was not married, so this is not a divorce case, which is not relevant in the court's analysis.) Next, after the man refused to give the dog to the woman, the court said that she could demand the dog back and not have to settle for the monetary value of the dog. The court reasoned that the dog had sentimental value beyond what the couple had paid for it, therefore, the woman was entitled to receive the dog specifically in the division of the couple's property.

Some introspection for assisted reproduction professionals

More on the ethics, family expectations, and financial costs of assisted reproduction in the aftermath of "the octuplets."

The New York Times recently ran this piece on the unfolding questions around assisted reproduction. Here's an excerpt:

[U]nlike some other countries, the United States has no laws to enforce those guidelines [of the American Society of Reproductive Medicine]. The Centers for Disease Control and Prevention has a surveillance system that collects data on fertility clinics, but reporting is voluntary and there are no government sanctions for not reporting.

As a result, experts say many doctors are still implanting too many embryos to increase the chance of pregnancy. Only 11 percent of in vitro procedures in the United States involve single embryos, according to 2006 data from the C.D.C.

But the 2008 guidelines say that in many cases, it is healthier to implant only one embryo, even if it means the process has to be repeated, because of the risk of multiple births. In the case of Ms. Suleman, the California Medical Board said it was investigating her fertility doctor, Michael M. Kamrava, to determine whether accepted standards of medical practice had been violated. In an interview with NBC News, Ms. Suleman, 33, said that Dr. Kamrava had implanted six embryos, and that two of them had divided into twins, resulting in eight babies.

Like I've said before, sometimes the laws or regulations for new areas of life have a hard time keeping up. In this area, it's not even in the rear-view mirror.

(Photo by Colin Gregory Palmer; used by permission.)

Birth of octuplets causes ethical stir

By now, most people have heard about the 33-year-old California woman who gave birth to octuplets. The astonishing thing is that she conceived the babies by having the embryos implanted. In addition, she already has six other children.

In assisted reproduction circles, HUGE ethical questions are swirling. Just for starters, as the Washington Post reports,

. . . [T]he medical community, particularly fertility doctors, [says] it goes against the mission of their work: to minimize high-risk, multiple-birth pregnancy and safely provide a woman with a single healthy baby. It is also raising questions about the lax regulations covering doctors and clinics that provide such services.

The reality is that assisted reproduction is governed more by guidelines than by strict regulation.

Can surrogacy ever go "mainstream"?

Recently, the New York Times magazine told the story of a woman whose child was carried by a gestational surrogate.

In expressing her conflicting emotions, the author writes, "It was a desperate measure, to be sure, and one complicated by questions from all the big sectiors: financial, religious, social, moral, legal, political."

Even amidst her mix of feeling inferior and feeling elated, the new mother shares her joy of participating in the miracle of life: "The miracle of [our son's] existence speaks to the generosity of humanity--and to the magical, unified coordination of more than a dozen people in the act of his creation."

Earlier this year, Newsweek reported about military wives who become surrogates for numerous reasons, including the extra income.

(Photo by anyjazz65; used by permission.)

Nebraska's safe haven law for children focuses on only infants now

As reported in the L.A. Times:

Nebraska on [November 21] closed a loophole in a controversial law that had allowed parents to abandon children as old as 18 at hospitals. The unicameral Legislature voted 43 to 5 to make abandonment legal only for infants up to 30 days old. Gov. Dave Heineman signed the emergency bill [the same] afternoon, and it takes effect [November 22].

Nebraska's law had been controversial for nearly three months as people from Nebraska and across the country abandoned their children in that state. Some children were as old as young teenagers. Now, the state's law is more in keeping with its original intent and that of similar laws around the nation, which is to protect infants when a desperate (and often very young) parent feels compelled to abandon the baby.

However, Nebraska's recent experiences show that parents of children of all ages can become desperate in the face of economic, health, and behavioral difficulties. Desperate even to the point of abandoning the children. A related story in the Times included this quotation:

[C]hildren's advocates as well as parents . . . say the state has done nothing to address the problem exposed by the safe-haven law: desperate families quietly struggling to raise mentally ill children with little help from the government. "There are parents like me who really need help," [one parent] said. "I don't know how to help him. I don't know what else to do."

Biology and family dynamics blur

In a slightly irreverent telling of the scientific and medical news, William Slateren writes in Slate.com about "another guy got his mother-in-law pregnant." No, it's not a made-for-tv, sordid interfamily love triangle.

When a "mother" was unable to bear her own child because she had had a hysterectomy, the woman and her husband had her egg fertilized with his sperm (so far, so good), and then the embryo was implanted in the woman's mother. Yes, the baby's grandmother was the surrogate.

For quite a few years, assisted reproduction, surrogacy, and the peeling apart of maternity have been taking various twists and turns. As usual, the law has had to catch up with people's family arrangements. In many cases, the law isn't even in the rear-view mirror yet.

(Photo by Jose Miguel Serrano; used by permission.)

Meeting your own family from down the street

Adopted children often grow up wondering what their "real" families are like. In an essay in the New York Times magazine, a man describes meeting his birth parents. As it happened, after years of looking for his birth mother, it turned out that his biological mother and father had eventually married and ended up living not too far from where the man grew up with his adoptive parents.

He describes his sharing his experience with his wife this way: "I showed her all the photographs [from my birth mother], which she took and framed and added to the wall of our apartment devoted to family pictures. Even now, the pictures . . . cause me to do a double take as I walk by them, not so much wondering, Who are those people, as thinking, Oh, there you are."

An old family, which felt like a new family, now feels like an old family.

(Photo by Jeff Belmonte; used by permission.)

When the "Supremes Court" rules on a break-up

"It is our opinion that stopping in the name of love is not only the compulsory duty of the philandering party, but it would be irresponsible for him to do otherwise, pursuant to the aforementioned instances in which we have been both good and sweet to you, as well as the imminent risk of breaking the court's heart. Think it o-o-ver."

This is an excerpt of an Onion story, "Supremes Court Upholds Stopping in the Name of Love in 2-1 Decision."

I can't wait until Tina Turner joins the court and they rule on "What's Love Got to Do with It."