Lesbian and Gay Parenting Questions & Answers Column With Arlene Istar LevDear Ari

A column by Arlene (Ari) Istar Lev

Legal Rights and Family

Posted By on September 2, 2010

Dear Ari:

I have been in a lesbian relationship for ten years now. Together we are raising my two daughters from a previous relationship, and a daughter we have together. My partner was just diagnosed with Genetic Emphyzema, and the doctors told her she only has 5-10 years of life. We live in Pennsylvania. I was just wondering as far as any rights go, do I have any? What will happen to me when my partner gets sick and can no longer make decisions on her own? Will our daughter (my biological) receive any benefits because of one of her parents dying? Is there anyway that we can go to another state to have our relationship become a legal union, or a marriage? Are we allowed to share legal custody of our daughter, and if so how do we do that? I am so saddened by the news, but I have to look into the future and think to myself, “What if?” Please help me, because I am at a loss and have no idea what to do now.
—Marsha

Dear Marsha:

I am so painfully sorry to hear about your partners’ illness and the decisions you will need to make over the next few years. It is very hard to know that someone you love is facing a shortened life span, and what may be a painful death. On the other hand, having a chronic illness, even one that is eventually terminal, gives you plenty of time to address the legal, medical, and emotional issues. I’ve always thought that if I had to chose my death, or that of a loved one, I would chose illness over sudden and catastrophic death – although I know not everyone sees this the same way – precisely because it would give me time to plan for my children.

Many years ago I was driving in a car with my best friend. She was at the time dying of ovarian cancer at the age of thirty. I was driving too fast, weaving in and out of traffic on the BQE in NYC. She said, with her usual drool sense of humor, “Just because I’m dying, doesn’t mean you couldn’t get me killed in a car accident.” I hope that you do not find my humor (well, it was her humor; I’m just repeating it) distasteful. I think that death bearing down at the door can help all of us WAKE UP to life.  The truth is that you all have each other now, which is really all any of us truly have. Living with life’s fragility, I hope, can help you live with awareness and great love. The good news is that there are many things you can do to help secure your family. And for everyone reading this, you don’t have to wait until you get a terminal diagnosis to do this; for that matter, everyone should put this up on there on top of your priority list.

Pennsylvania does offer second-parent adoption as of August 2002. A second parent adoption is a legal procedure that extends legal parental rights to a non-biological or non-adoptive co-parent without terminating the first parent’s legal status as a parent. The sex of the two parents is not taken into consideration when completing a second parent adoption. Second parent adoptions protect children in same-sex parent families by giving the child the legal security of having two legal parents. Please note that if a child has two legal parents from a previous relationship (i.e., a biological father,) that person’s legal relationship must be terminated before a second parent adoption can be completed. For more information you can search at National Center for Lesbian Rights or Human Rights Campaign websites. (http://www.nclrights.org/ and http://www.hrc.org/)

If you live in a state where second-parent adoption is not available you should prepare a written co-parenting agreement with your partner, which is outlined below. Some states have begun recognizing “psychological parenthood” even when legal paperwork has done been completed, but it is always best to have all the written documentation you can have.

It is especially critical for gay, lesbian, bisexual and transgender people to know that if legal paperwork is not established domestic partners will not be recognized as legal next of kin and the hospitals and courts will look to the closest biological family member to make health care decisions. If an LGBT person becomes ill or dies, decisions about financial assets and the living arrangements of children will not be respected unless they are legally documented. Listed below are important legal documents to ensure that the rights of LGBT families are protected. Other documentation that can help make your family more secure and that establish the intention to be family is also listed, but some of these may or may not be legally recognized. Family law varies from state to state, so it is always recommended that you consult an attorney familiar with LGBT family law in your state for help drawing up the necessary documents.

Durable Power of Attorney — A Power of Attorney form is a document that authorizes another person to act on your behalf and determine who will have the legal authority to make decisions for you. With a Power of Attorney a partner can pay bills, deposit checks, handle taxes, sell stocks and do everything that a legal spouse would be allowed to do.

Health Care Proxy —A Health Proxy is a form used exclusively for authorizing another person to make medical and health care decisions for you when you are unable to do so. The designated person will be able to make all health-care decisions including the type of treatment, location of treatment, and in addition, the right to refuse or decline life prolonging treatment. A health care proxy instructs medical personnel to follow the medical guidelines that the incapacitated person would have preferred.

Living Wills —A living will allows you to make decisions now about under what circumstances life-saving procedures will be performed by medical personnel.

Last Will and Testament — A will is a complex legal document that insures that the wishes of the deceased will be carried out. If a person dies without a will, it is the state and not the person or his or her family that determines how the estate is distributed. The courts could make decisions regarding the distribution of money, belongings, and property and the guardianship of children that are in direct opposition of what the person may have wanted. Having a will is the only way to insure that family members are financially cared for, and minor children remain in the custody of a parent who is not legally recognized.

Domestic Partnership Registration —Some localities have domestic partnership registration can establish your intentions to be viewed as a family. This may be used as documentation to register for spousal health insurance benefits.

Temporary Guardianship —This paperwork allows a non-legal parent to be treated as a legal parent in medical emergencies. If a spouse does not have legal rights to a child that they are parenting, it is essential to carry legal paperwork at all times, establishing the right to act “as” a parent.

Co-parenting agreements —A co-parenting agreement is a document that explains the rights and responsibilities of each parent where a second-parent adoption is not available. These are very helpful to assist in custody related decisions should a couple split up, and can serve to protect the rights of a non-biological/non-adoptive parent.

Marsha, given the tenuous nature of your partner’s health, I think it essential that you complete a Health Care Proxy, as well as Living Will. These can be hard conversations to have (“Do want us to do everything we can to prolong your life, even if there is brain damage?” etc.), but they are essential conversations to have. Ten years is in a long time so bear in mind my friend Linda’s sardonic comment while whizzing down the highway, you need to protect both of your rights, because sudden catastrophe can strike at any time, leaving your ill partner as the sole parent.

Sadly, there will not be Social Security benefits for your daughter if your partner is not a legal parent. Moving to Massachusetts might grant you more rights as a married couple, but the details of how federal law will apply are still being worked out. It seems to me you have many rights available to you in Pennsylvania, but you need to do the paperwork necessary to utilize them.