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Parenting in New Jersey
The Uncertain Legal Status of Same-Sex Couples
by Stephen J. Hyland, Esq.
© February 1, 2006, Stephen J. Hyland


Over the last 30 years, there has been considerable expansion in the recognition of equal rights for homosexuals in New Jersey, particularly in regard to the parent-child relationship in same-sex couples with children (referred to hereafter as same-sex families).

A recent decision by an Essex County court has further extended equality by recognizing two committed lesbian partners as the legal parents of a child born to one of them during their partnership. However, as New Jersey moves closer to the position of states such as Vermont and California, which provide legal recognition to same-sex couples equal to that of opposite-sex married couples, important questions emerge regarding the recognition of these rights in other states.

This article provides an update on the current state of the law of parenting in New Jersey as it relates to same-sex couples, as well as some speculation as to the future of such rights. Part I provides a brief overview of same-sex families. Part II discusses how the parent-child relationship is formed under New Jersey law. Part III covers the development of adoption law as it applies to same-sex families prior to the enactment of the Domestic Partnership Act (DPA) of 2003,1 while Part IV discusses the first post-DPA case, which further extended the parenting options of same-sex couples. Part III discusses some of the uncertainties same-sex families are likely to encounter, primarily in the area of interstate recognition. Due to space constrains, it does not address the issues of custody, visitation and support.

Part I — Same-Sex Families
Part II — Establishing the Parent-Child Relationship
Part III — Developing Recognition of Same-Sex Families
Part IV — Recent Developments
Part V — The Uncertain Future
Part VI — Conclusion

Part I — Same-Sex Families

According to some statistics, over 20 percent of gay men and 60 percent of lesbians are parents of one or more children.2 Although many of these children are the result of prior heterosexual marriages, others result from conscious decisions by same-sex couples to create a family in some way. As a result, many of New Jersey’s over 160,000 same-sex couples live in households with one or more children.3

Same-sex families frequently result when one or both partners have custody of children born to or adopted by a partner prior to becoming a couple. In other cases, the partners jointly adopt one or more children, often through a public agency. Still others result when one partner becomes a biological parent during the partnership, usually using one or another form of assisted reproductive technology.

For lesbian couples, there are several options. The simplest involves artificial insemination of one partner who subsequently gives birth to a child. A more complex option is having one partner (the genetic parent) donate an egg, which is fertilized in vitro by what is (usually) an anonymous sperm donor, and then subsequently implanted in the other partner, who carries and subsequently gives birth (the birth mother). A variation of this involves having the fertilized egg implanted in a surrogate (the birth mother), who carries the child to term. For gay male couples, the choices are biologically constrained to insemination by one partner of a surrogate. Each of these methods has its own legal complications as a result of the New Jersey Parentage Act,4 which defines how parentage arises in each of these situations.

Part II — Establishing the Parent-Child Relationship

The Parentage Act, which is based upon the 1973 version of the Uniform Parentage Act,5 was adopted to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other.6 In addition, the act established a procedure to establish parentage in disputed cases.7 Prior to the enactment of this act, a child born out of wedlock was significantly disadvantaged, since he or she was only considered to have one parent—the mother. By ensuring that every child had two legal parents, the Parentage Act thus enabled children to receive benefits, such as support or inheritance rights, from both parents.

The act provides several ways in which parentage is established. First, the parent-child relationship between a child and the natural mother is established by proof of her having given birth to the child, or under P.L. 1983, c. 17 (C.9:17-38 et seq.).8 Second, the parent-child relationship between the child and the natural father may be established in a number of ways, such as by a signed voluntary acknowledgment.9 Once adjudicated, paternity can only be voided by a finding that there exists clear and convincing evidence of: fraud, duress or material mistake of fact, with the burden of proof upon the challenger.10 Finally, the parent-child relationship between the child and an adoptive parent is established by proof of the adoption.11

The Parentage Act also establishes six presumptions regarding paternity. First, there is a presumption that a man is the biological father of a child born during or within 300 days after termination of a marriage to the biological mother.12 Second, he is presumed to be the father if, before birth, he and the mother entered into an invalid marriage.13 Third, he is presumed to be the father if, after the child’s birth, he and the birth mother entered into an invalid marriage, and he has acknowledged paternity in writing, sought to have his name placed on the birth certificate, openly holds out the child as his natural child, or is obligated to support the child by court order or voluntary agreement.14 Fourth, he is presumed to be the father if, while the child is a minor, he receives the child into his home and openly holds out the child as his own.15 Fifth, he is presumed to be the father if, while the child is a minor, he provides support for the child and openly holds out the child as his own.16 Sixth, he is presumed to be the father if he files a written acknowledgement with the local registrar and the acknowledgment is not disputed by the mother within a reasonable time.17 These presumptions may be rebutted only by clear and convincing evidence.18 In the absence of any of these presumptions, the court shall decide whether the parent and child relationship exists, based upon a preponderance of the evidence.19 Notably, this exception to the presumptions is the only one that does not refer to establishing paternity.

In an early nod to the emerging use of assisted reproductive technology, an exception was made for the use of artificial insemination. For married couples, the husband, even though he is not the donor, is still recognized as the legal parent of a child born to the marriage even if the child is a result of artificial insemination, so long as a licensed physician carried out he insemination and the husband has given his written consent.20 However, where a woman, other than a donor’s wife, is inseminated by semen provided to a licensed physician, the donor is not considered the father unless he and the woman have entered into a written agreement to the contrary.21 As a result of this last provision, which is not found in the Parentage Act, a child born to an unmarried woman as a result of artificial insemination by a physician using an anonymous donor will have only one legal parent.22

Other forms of assisted reproductive technology have not been recognized in New Jersey law. For example, the maternal presumption in the Parentage Act means that only the birth mother is recognized as a parent. Thus, the donor of an egg implanted in an unrelated female has no legal recognition as a parent, despite being the child’s direct genetic parent. In addition, a surrogate is considered the legal mother, even if implanted with another person’s fertilized egg.

Part III — Developing Recognition of Same-Sex Families

The first developments in New Jersey law regarding same-sex families arose in the context of adoption. For some time, it was recognized that homosexuality was not, per se, a legal barrier to child custody, visitation, or adoption. Furthermore, the adoption statutes provided that an unmarried person was entitled to adopt. Thus, New Jersey allowed a single homosexual to adopt, so long as it was found to be in the best interest of the child, the legal touchstone by which all adoption and parenting issues are decided.

However, the question of adoption of a partner’s child by the non-parent partner in a same-sex couple was not answered until 1993, in the case of Matter of Adoption of a Child by J.M.G.23 In this case, the trial judge had to answer two questions. First, whether such an adoption was even allowable under New Jersey law. Second, whether the adoption by an unmarried same-sex partner would terminate the natural mother’s maternal rights. Both questions presented issues of first impression in New Jersey.24

The petitioner, J.M.G., was the lesbian partner of E.O., the biological mother of the child in question. The couple had been in a committed relationship for 10 years. They jointly planned to have a child together and, under the supervision of a licensed physician, E.O. was artificially inseminated by an anonymous sperm donor and subsequently gave birth.25

In regard to the first question, the Court found that there was no legal impediment to the adoption by J.M.G. under New Jersey law.26 First, as an unmarried person, J.M.G. was legally entitled to institute an adoption on her own under the adoption statutes.27 Second, after reviewing an extensive evaluation of the matter by the guardian ad litem (a law professor), and the report of a home study and investigation by an appropriate agency,28 and after conducting its own evaluation,29 the Court determined that the adoption would be in the best interest of the child.30 In particular, the Court noted, the adoption would cause no change to the child’s daily life but provide critical legal rights and protection for her safety as well as physical and emotional well being,31 and would bring her additional economic security.32

The Court further found that the child and J.M.G. had established a close personal relationship similar to that of any other parent.33 Thus, adoption by J.M.G. would help ensure the child’s relationship continued with J.M.G., particularly if her biological mother, E.O., died, became incapacitated, or if the couple separated.34 This was particularly important since, as a result of the artificial insemination, the child had no other legal parent.

However, in allowing the adoption to proceed, the Court was faced with a dilemma, since the adoption by J.M.G. would normally terminate E.O.’s parental rights.35

Under New Jersey’s adoption statutes the entry of a judgment of adoption terminates all parental rights and responsibilities of the natural parent,36 including all rights of inheritance under intestacy from or through the parent37 and all rights of inheritance from or through the child,38 except those rights that have vested prior to the … adoption.39 Where the child has living parents, termination of parental rights must follow strict guidelines, unless the parent has voluntarily terminated those rights by, for example, surrendering the child to an adoption agency. Prior to termination, the child’s natural parents must be given notice and an opportunity to be heard.40 Failure to do so constitutes a violation of due process involving the parents’ fundamental rights regarding their children.

Although adoption normally terminates the natural parents’ rights, there is an exception for adoption by a stepparent. When the child’s parent is the spouse of the petitioner, a statutory exception prevents the adoption from unintentionally terminating that spouse’s parental rights, so long as the spouse consents.41 In J.M.G., the Court was faced with deciding whether the stepparent exception was applicable in the absence of a marriage between the adopting partner and the child’s legal parent.

To avoid the unwanted effect of termination, the Court reached back to a 1977 case, In re Adoption of a Child by A.R.,42 which held that the stepparent exception could be applied in a way that preserved the biological mother’s rights.43 The Court also favorably reviewed the application of the stepparent exception in other states to unmarried same-sex couples, including Vermont.44 Adopting the position of the Vermont Supreme Court,45 and additionally adopting the language of the A.R. case,46 the Court found that it would be a matter of common sense to treat the case at bar as a form of stepparent adoption in order to protect the child’s interest in maintaining her relationship with her biological mother.47 Furthermore, the Court stated, such an interpretation was in keeping with the historical policy and statutory mandate to construe the adoption law liberally in order to promote and protect the child’s best interests.48

Thus, having found no statute or discernible public policy prevented the Court from granting the adoption, and being fully satisfied that the fact that J.M.G. is the lesbian partner of the mother did not adversely affect the child, but in fact, provided the child with a secure environment in which to grow, the Court found that it was in the best interest of the child to grant J.M.G.’s petition for adoption.49

The second-parent adoption exception was revisited and solidified in 1995, in a case with similar facts to the J.M.G. case. In the case of Matter of the Adoption of Two Children by H.N.R.,50 the trial court held that New Jersey law did not permit the same-sex partner of the natural mother of twins to adopt the children without affecting the natural mother’s parental rights. By a two-to-one decision, the Appellate Division reversed the dismissal of the same-sex partner’s adoption petition, found that the adoption plainly serves the best interests of the children, and ordered the court to grant the judgment of adoption.51

The majority held that the stepparent exception to the natural parent’s termination of rights should not be read literally and restrictively where to do so would defeat the over-arching principal of adoption, the best interest of the children.52 With this decision, same-sex couples were clearly brought within the stepparent exception.

In the same case, the court determined that the provisions of the adoption law were silent in respect either to joint adoptions by unmarried persons or adoption by an unmarried cohabitant of the partner’s child, with the partner’s consent.53 Furthermore, an unmarried person is not disqualified simply because he or she is homosexual.54 As a result, same-sex couples in New Jersey are permitted to jointly adopt a child in the same proceeding, so long as it is found to be in the best interests of the child.

In the cases cited, second-parent adoption has been used by lesbian couples as a means of allowing both partners to parent a child born to one of the partners during the relationship. Its use is, however, by no means limited to such situations. In fact, it is used by gay male couples, who must resort to a surrogate if both want to parent a child born to one of them during the relationship. However, for gay male couples, the proceedings require an additional step.

Although New Jersey does not absolutely prohibit the use of surrogate mothers,55 the New Jersey Parentage Act views the surrogate as the natural mother of the child born, even if the surrogate is implanted with another person’s fertilized egg. A surrogate may voluntarily relinquish her rights, but may only do so after a 72-hour period has passed following the child’s birth, and may not be bound by any form of contract or order that requires the surrogate to surrender her parental rights.56 Therefore, in order for a gay male couple to become parents in this way, the surrogate must be given notice of the adoption, unless either her parental rights have been terminated in a separate judicial proceeding57 or the Court concludes, following a hearing, that she has voluntarily and properly given the child for adoption to the adopting parent[s].58

Part IV — Recent Developments

Since the J.M.G. and H.N.R. cases were decided, fundamental changes have emerged regarding same-sex families. First, since 1999, three states (Vermont,59 California,60 and Connecticut61) have enacted civil union or domestic partnership acts that provide all of the rights of marriage to same-sex couples, including parenting.62 Second, in 2003, the Massachusetts Supreme Judicial Court extended the right to marry to same-sex couples.63 In all, four states now extend the same set of rights and responsibilities under those states’ laws in regard to children as those held by opposite-gender married couples.64

In particular, due to the almost universal adoption of the Uniform Parentage Act, the presumptions regarding the parentage of children in a marriage are now available to registered (or married) same-sex couples in these states. For example, a child born to a married lesbian couple in Massachusetts is legally the child of both women, assuming they followed the strictures of the Massachusetts artificial insemination statute.65 Many of these laws seemed threatening to those who viewed the idealized family of 1950s television shows as the norm for all families.66 But to many others, these laws reflected the reality of modern family life and the changes in parentage brought about by advances in reproductive medicine.67

In New Jersey, the Legislature passed the Domestic Partnership Act of 2003,68 in part in an attempt to deflate the pressure to extend equality to marriage. Unfortunately, the act as passed lacked all but a few of the privileges and responsibilities enjoyed by married couples, and utterly failed to address the parent-child relationship except in the legislative history, which stated that the act neither creates nor diminishes individual partners’ rights and responsibilities toward children, unlike in a marriage where both spouses possess legal rights and obligations with respect to any children born during the marriage.69 However, a recent case demonstrated that New Jersey courts may begin considering the legal status of same-sex couples, at least in regard to establishing the parent-child relationship.

In a recent case, In re: Child of Kimberly Robinson and Jeanne LoCicero,70 an Essex County judge granted a petition for a pre-birth order establishing the legal parentage of a same-sex couple, applying the artificial insemination statute found in the New Jersey Parentage Act.71

The plaintiffs, a lesbian couple, began living together in 2003, became registered domestic partners in Brooklyn72 in December 2003, and then legally married in Ontario on August 7, 2004.73 At all times during their relationship, the court found, the couple lived openly as such. The couple subsequently moved to Essex County in order to be near friends and family, with whom they are apparently both close.

The couple jointly decided to start a family, designating Robinson the birth mother. She was subsequently inseminated by a licensed physician using sperm from an anonymous donor. The couple chose a donor of similar ethnicity and physical characteristics as LoCicero in the hope that the child would bear a physical resemblance to both partners.

During the eighth month of pregnancy, the couple filed a verified complaint to establish maternity, and asked for a pre-birth order naming them both as parents on the child’s birth certificate, in order to ensure that the child had the full set of rights coming from both sets of parents. In their complaint, they asked for relief based on several claims.

First, they asked the court, as a matter of public policy, to name both as parents, on the basis that New Jersey courts recognized the legal rights of non-traditional, same-sex couples to be named as parents (citing H.N.R.).74 Second, they alleged that the best interests of the child would be served by construing the artificial insemination statute to apply to same-sex couples. They also suggested to the court that the benefits of having two parents from the moment of birth were significant, and the child would be unnecessarily deprived of the benefits flowing from the non-biological mother for as much as two years if they were required to proceed through second-parent adoption. Third, the couple argued, the artificial insemination statute must be found unconstitutional if it prohibited LoCicero from adjudication as a parent, on the basis that it violated the right to equal protection under the New Jersey Constitution and the New Jersey Law Against Discrimination.75 Finally, the couple sought a decision prior to birth, so the child would receive the full rights from both parents immediately upon birth.

Because the complaint alleged that the statute was unconstitutional, the state entered an appearance, via the attorney general. However, the only argument the state offered was that the artificial insemination statute, on its face, addressed paternity and not maternity, and thus, according to the state, LoCicero was disqualified.

In its decision, the court first examined the evolution of the Uniform Parentage Act and its adoption by New Jersey in 1983. The court also took note of the 2000 and 2002 revisions of the act, which, although not yet adopted in New Jersey, attempted to address the rapidly evolving issue of parentage in light of advances in assisted reproduction technologies.

Noting further that in New Jersey there was no specific policy for interpreting the artificial insemination statute in the context of a same-gender couple, the court pointed out that the Legislature had, on the other hand, provided guidance on the analysis to be given to matters pertaining to children, that is, the best interests of the child.

Turning to this analysis, the court noted that, although it was without power to determine the validity of the couple’s Canadian marriage, this fact, as well as the couple’s domestic partner registration, demonstrated that they had availed themselves of every opportunity to be recognized as a legal family. The court also found that the couple had clearly demonstrated their joint commitment to having a child and to provide a good home for that child.

We have a child born within the context of a marriage with two spouses, the non-birth mothers wishes to have legal responsibility, the State, as a threshold matter, would not have the responsibility for the care of the child.

Therefore, concluded the court, naming LoCicero as a legal parent would be in the best interests of the child.

Having found a strong public policy favoring the best interests of the child, and being unable to discern any state interest that would preclude application of the artificial insemination statute to LoCicero, the court concluded that, within the facts of this case, the artificial insemination statute gave rise to the presumption that LoCicero was a parent of the child. Therefore, the court granted the pre-birth order naming both women as the legal parents.

On the other hand, in a later, as yet unreported case in Middlesex County, involving similar facts to the Robinson case, the court rejected the couple’s request for a pre-birth order. Thus, it is unclear whether the Robinson case represents one more step in the state’s path toward full recognition of same-sex parents, or simply a detour along the way. With several more cases currently before the New Jersey courts, the best that can be said is that the issue remains undecided.

Part V — The Uncertain Future

Despite this welcome recognition of same-sex family rights, however, the decisions in these cases carry significant risks to the parent-child relationships that are established in these ways. Furthermore, there are a number of uncertain or undecided issues associated with them.

First, there is a question of what effect, if any, the Domestic Partnership Act has on establishing and/or maintaining these rights. Although, as was pointed out in the Robinson opinion, the Domestic Partnership Act neither diminishes nor changes parental rights, it is possible that there are areas where some changes may occur. For example, had LoCicero and Robinson not been in a formal relationship recognized by New Jersey, the court might have been reluctant to find the artificial insemination statute applicable to them.

Second, in the prior cases, the stepparent exception was extended to same-sex couples precisely because they were unable to marry. This extension of the stepparent exception to same-sex couples ignored the common-law definition of stepparent in favor of a more liberal construction that was based on the best interest of the child.76 It is possible that some of these exceptions may be narrowed, limiting them to registered domestic partners only, under a theory that public policy encourages same-sex couples to register now in order to obtain certain rights, in the same way that courts have refused to extend rights of marriage to unmarried heterosexual couples.

Third, unlike a birth mother, for whom the parent-child relationship is established by giving birth, the parent-child relationship with the other parent (traditionally, paternity), may be challenged by any party, including the birth mother.77 Typically, such challenges have been raised in New Jersey by the presumed father, usually in conjunction with an attempt to avoid support. However, there appears to be nothing in the New Jersey statute that would bar the birth mother from challenging a presumption in favor of a same-sex partner, except where, as here, the birth mother asks for a court determination of parentage in favor of a partner or spouse,78 or by application of the doctrine of laches.79 If application of the presumption becomes automatic in New Jersey, as it has in Massachusetts, Vermont, California, and (soon) Connecticut, either parent may well be entitled to challenge this presumption. It is already being challenged in Vermont and Virginia by the birth mother in a highly contested custody case arising out of a civil union termination.80

Fourth, same-sex families should be carefully advised that there are significant challenges ahead in regard to the interstate enforceability of parental rights acquired in New Jersey. Parents have traditionally relied upon the full faith and credit clause of the United States Constitution, federal laws, such as the Parental Kidnapping Act,81 and uniform state laws such as the Uniform Child Support Act,82 for recognition and enforcement of their rights in other states. However, the passage of the federal Defense of Marriage Act (DOMA),83 as well as the enactment of ever more restrictive mini DOMAs84 by a significant number of the states, has created a climate of uncertainty regarding the portability of parental rights acquired by same-sex couples.

In Virginia, for example, a state court has already refused to recognize the jurisdiction of a Vermont court in a custody battle arising out of a Vermont civil union.85 The Virginia court has asserted that Virginia’s Affirmation of Marriage Act,86 which forbids recognition of the couple’s civil union or its termination by the Vermont court, prohibits the court from recognizing the Vermont court’s prior jurisdiction. Under the Virginia law, a civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction is void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.87 In Vermont, where the court issued a contempt of court order against the birth mother, the case has been appealed to the Vermont Supreme Court, which at press time had scheduled oral arguments for September 7, 2005.88

Other states have passed laws prohibiting recognition of joint or second-parent adoptions by same-sex couples. For example, Oklahoma recently enacted a statute forbidding recognition of an adoption by more than one individual of the same sex from any state or foreign jurisdiction.89 In Nebraska, where second-parent (or co-parent) adoptions are statutorily prohibited, that state’s Supreme Court overturned a trial court decision setting aside a Pennsylvania judgment granting a same-sex couple a joint adoption. The trial court acted on the basis that the Pennsylvania judgment was invalid because the Pennsylvania court had not followed that state’s law. However, the Supreme Court reversed the lower court on the basis that it was not entitled to review another state’s final judgment.90

A full discussion of the issues involved, and the conflicting laws giving rise to these particular challenges, is necessarily left to another article. Nevertheless, it is apparent that the conflict between states granting legal protection to same-sex families and those that forbid such recognition will not go away for some years to come, and may present some difficult problems for same-sex families.

VI — Conclusion

As New Jersey continues to extend legal equality to same-sex couples and their families, the author believes it should consider ways to help protect its families inside and outside the state. At the very minimum, the Legislature could examine ways to statutorily enshrine equal protection for same-sex families, with particular attention paid to updating the laws pertaining to parentage and adoption.

Family law practitioners should ensure that same-sex families are counseled about the risks as well as the benefits inherent in the various methods of creating a legal family. In particular, they should be encouraged to utilize adoption as a way of strengthening parent-child relationships acquired under the Parentage Act, particularly if there is chance that the family will relocate outside New Jersey.

The author believes in time, when the dust from the latest civil rights battlefield settles, same-sex families will find they have achieved equal treatment, at least in the eyes of the law. Until that time, New Jersey may be a welcome and supportive home.


Footnotes

1. N.J.S.A. 26:8A-1 et seq.

2. See www.gaydemographics.com.

3. Id.

4. N.J.S.A. 9:17-38 (1983).

5. U.L.A. Parentage §1 et seq. (1973).

6. N.J. Senate, No. 888—L. 1983, c.17.

7. Id.

8. N.J.S.A. 9:17-41a. Apparently, this refers to establishing the parent-child relationship in the absence of any presumptions regarding paternity. See N.J.S.A. 9:17-43d.

9. N.J.S.A. 9:17-41b.

10. Id.

11. N.J.S.A. 9:17-41c.

12. N.J.S.A. 9:17-43a. (1).

13. N.J.S.A. 9:17-43a. (2).

14. N.J.S.A. 9:17-43a. (3).

15. N.J.S.A. 9:17-43a. (4).

16. N.J.S.A. 9:17-43a. (5).

17. N.J.S.A. 9:17-43a. (6).

18. N.J.S.A. 9:17-43b and 43e.

19. N.J.S.A. 9:17-43d.

20. N.J.S.A. 9:17-44a.

21. Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of a child conceived and shall have no rights or duties stemming from the conception of a child. N.J.S.A. 9:17- 44b.

22. The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived. U.L.A. Parentage §5(b). (1973) (emphasis added).

23. 267 N.J. Super. 622 (Ch. Essex, 1993).

24. Id. at 623.

25. Id. at 624. Because E.O. followed the statutory requirements in the law, the child was born with only one legal parent, E.O. As a result, the court did not need to give notice to the father.

26. Id. at 626.

27. Id. at 627, citing N.J.S.A. 9:3-43a.

28. Id. at 623-225.

29. Id. at 624.

30. Id. at 625.

31. Id.

32. Id.

33. Id. at 626.

34. Id. at 625-626.

35. N.J.S.A. 9:3-50c.

36. N.J.S.A. 9:3-50c(1).

37. N.J.S.A. 9:3-50c(2).

38. N.J.S.A. 9:3-50c (3).

39. N.J.S.A. 9:3-50c (1).

40. N.J.S.A. 9:3-46.

41. N.J.S.A. 9:3-50c (1) and (2).

42. 267 N.J. Super. at 627, citing 152 N.J. Super. 541 (Cty. Ct. 1977)

43. These statutes, however, must be read against the peculiar factual setting of this case and with an application of common sense. 152 N.J. Super. at 545.

44. 267 N.J. Super. at 627-30.

45. 267 N.J. Super. at 628, citing Adoptions of B.L.V.B and E.L.V.B., 628 A.2d 1271 (Vt.1993).

46. 152 N.J. Super. at 545.

47. 267 N.J. Super. at 628. The court refrained from referring to J.M.G. as an actual stepparent, feeling constrained on doing so by his determination that same-sex marriages are not legal in this state. Id.

48. Id. at 631, citing N.J.S.A. 9:3-37.

49. Id. at 631-632.

50. 285 N.J. Super. 1 (App. Div. 1995).

51. Id. at 3.

52. Id at 7-8.

53. Id. at 6.

54. Id at 7, citing M.P. v. S.P., 169 N.J. Super. 425 (App. Div. 1979).

55. See, A.H.W. and P.W. v. G.H.B. and John. J. Farmer, 339 N.J. Super. 495 (Ch. Fam. Part 2000).

56. Id.

57. N.J.S.A. 9:3-45b. (2).

58. N.J.S.A. 9:3-45b. (4).

59. 15 V.S.A. §1201 et seq. (1999). (a) Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage. Vt. Stat. Ann. tit. 23, § 1204 (a) (2005).

60. A.B. 205 (2003). Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provision or sources of law, as are granted to and imposed upon spouses. Cal. Fam. Code § 297.5 (a).

61. 2005 Conn. Acts 05-10 (Reg. Sess.).

62. The rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same a those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage. Vt. Stat. Ann. tit. 23, § 1204 (f).

63. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

64. Hawaii and Maine have enacted legal protection for same-sex partners. However, neither state’s laws extend to parentage.

65. Ironically, Vermont has not adopted the Al exception and Vermont courts have only recently ruled that an anonymous sperm donor is not a legal parent. Ironically, this finding was made in the context of a custody dispute involving a lesbian couple who were, at the time, joined in a civil union.

66. See Stephanie Coontz, “The Way We Never Were: American Families and the Nostalgia Trap” (Basic Books 1992 / 2000).

67. See, Coontz, “The Way We Really Are: Coming to Terms with America’s Changing Families” (Basic Books 1997).

68. N.J.S.A. 26:8A-1, et seq.

69. Assembly Appropriations Committee, No. 3743—L.2003, c. 246.

70. In re Child of Kimberly Robinson and Jeanne LoCicero, Docket No. FD-07-6312-05-A (Sup. Ct. L. Div. Fam. Part May 23, 2005).

71. N.J.S.A. 9:17-44a.

72. Registration of their domestic partnership in the New York City registry is recognized as equivalent to registration in New Jersey under the Domestic Partnership Act.

73. Although the court did not determine whether the marriage is recognized as valid in New Jersey, the couple complied with all of the requisites of marriage in Canada. Thus, in Canada, at least, the marriage is accorded the same validity as that of any other marriage conducted between U.S. citizens celebrated in Ontario.

74. Id citing H.R.N., 285 N.J. Super. at 10.

75. N.J.S.A. 10:5-1 et seq.

76. This was pointed out by the dissent in H.N.R.

77. N.J.S.A. 9:17-45a.

78. See, e.g., B.P. v. G.P., 222 N.J. Super. 1010 (A.D. 1987), cert. denied, 108 N.J. 579 (1987); State v. Volk, 280 N.J. Super. 57 (A.D. 1995); A.K. v. S.K., 264 N.J. Super. 79 (A.D.1993); E.I.B. by I.J. v. J.R.B., 259 N.J. Super. 99 (A.D. 1992), cert. denied 130 N.J. 602.

79. See, e.g., L.V. v. R.S., 347 N.J. Super. 33 (A.D. 2002); C.R. v. J.G., 306 N.J. Super. 214 (Ch. 1997); State v. Volk, 280 N.J. Super. 57 (A.D. 1995).

80. Miller-Jenkins v. Miller-Jenkins, no cites available.

81. 28 U.S.C.A. 1738A and 1738B.

82. Uniform Interstate Family Support Act 1996 §§ 101 to 905.

83. 28 U.S.C.A. 1738C and 1 U.S.C.A. 7 (1996).

84. The term was coined by Professor Mark Strasser to refer to state laws modeled on or extending the Federal Defense of Marriage Act.

85. Miller-Jenkins v. Miller-Jenkins.

86. Va. Code § 20-45.2 and 3.

87. Va. Code. Ann. § 20-45.3 (2004).

88. It is expected that the losing party will mount an appeal to the United States Supreme Court.

89. 10 Okl. St. Ann § 7502-1.4 (A).

90. Russell v. Bridgens, 647 N.W.2d 56 (2002).

© February 1, 2006, Stephen J. Hyland, Esq.
202 Carnegie Center, Princeton, NJ 08543
609-924-0808; fax 609-452-1888
www.njdomesticpartnership.com

This article was originally published on Stephen’s Web site under
the title “The Changing and Uncertain Status of Same-Sex Families.”
Stephen J. Hyland is a partner in Hill Wallack, Attorneys at Law, and wrote
“New Jersey Domestic Partners: A Legal Guide,” (Riverview Press 2005)


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