The Challenges of L.G.B.T.Q. Family Law in New York and Beyond

The Challenges of L.G.B.T.Q. Family Law in New York and Beyond
Image by Guillaume Paumier, Wikimedia Commons

Ever since the Marriage Equality Act was enacted in our state in 2011, there has been same-sex marriage in New York and, inevitably, also same-sex divorce. Same-sex couples are faced with the same problems in terms of family and divorce law that arise in opposite-sex divorces, albeit with some specific considerations.

Consulting an L.G.B.T.Q. family lawyer is a great idea if you are uncertain as to the legal requirements of each state in terms of marriage, divorce, and parenthood as a same-sex couple. Numerous issues may arise, which will likely require legal counsel.

If you are considering assisted reproduction, whether you use a sperm bank or a known donor, there are different legal aspects to consider, to ensure that your rights as a parent are recognized. In some jurisdictions, only medically assisted insemination guarantees that the donor will not be recognized as a parent. 

As for surrogacy, some jurisdictions do not allow it in the case of L.G.B.T.Q couples, while others prohibit financially compensating the surrogate. It has also been known to happen that same-sex couples have gone through the whole process of surrogacy abroad but were unable to bring their child home to the U.S. The intersection between family law and international law gives way to many intricacies that may seem insurmountable to the lesser experienced attorney.

When it comes to adoption and foster care, since 2015, it is legal for same-sex couples to become parents in this manner at a federal level. In some states, discrimination against prospective adoptive/foster parents who are nonheterosexual is strictly prohibited.

Amid all these progressive laws, we still have the likes of Kansas, Texas, and Oklahoma, three states with legislation that allows child welfare providers to specifically discriminate against members of the L.G.B.T.Q. community-based on religion. 

Then again, even in states like New York and California, there can be nuances and hurdles to adoption, and only an experienced L.G.B.T.Q family lawyer can help. Because regardless of what the letter of the law says, the individuals enforcing it are often prejudiced, sometimes in extremely subtle ways. 

In the light of these difficulties, some L.G.B.T.Q. couples prefer to adopt children from abroad. But international adoption is also complex. Some countries that are a common source of adoptive children from U.S. couples do not allow same-sex couples to adopt a child. Sometimes the legislation of several countries must be taken into account in order to guarantee success. 

In some cases, an individual who identifies as L.G.B.T.Q may choose to enter into a parenting partnership with a friend or acquaintance, rather than with their spouse or significant other. Sometimes this creates a situation where there are more than two co-parents. 

In the case of divorce, for example, this can create unique problems. Some states recognize the possibility of multiple parents, while others don’t. When visitation and custody rights are being discussed, the legal standing of an individual as a co-parent is key. The same is true of medical care and travel-related decisions.

In short, New York and numerous states have passed many laws that are greatly advantageous for L.G.B.T.Q. individuals looking to get married or start a family, but the protections they provide are being constantly undermined. 

Especially regarding how to achieve legal status as a parent, there are many misconceptions. Whether your name is on your child’s birth certificate or not, you may need to seek a parentage judgment to clearly establishing your status as a parent. Without a court order, divorce, or the death of your spouse, for example, could bring with them an endless array of problems.

The L.G.B.T.Q. community has fought long and hard for same-sex marriage, but many individuals still prefer to enjoy a nonmarital cohabitation. In these cases, for example, if there are children, to the problem of prejudice against same-sex couples, we must add that of reduced rights for unmarried couples. While this is not true in every state, nonmarital cohabitation in the L.G.B.T.Q space presents, again, some unique challenges. And the same is true for single parenthood. 

Quite simply, the law is having a hard time catching up with how the L.G.B.T.Q. community continues to expand the concept of family. Through each step of family planning, it is important to have access to sound legal advice to facilitate marriage and parenthood and prevent unnecessarily complicated divorces.

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Dror Bikel

Dror Bikel is a Manhattan-based divorce and child custody lawyer. He founded and leads Bikel and Schanfield, New York’s best-known firm for high-conflict matrimonial disputes.

As founding partner of the Manhattan-based firm, Bikel & Schanfield, LLP, Dror Bikel’s 20+ years of trial and litigation experience offers invaluable insight in facilitating settlements, mediating disputes and obtaining superior results for his clients. A recipient of the New York Super Lawyers Award, Mr. Bikel is voted among the Top 5% New York State Family Law Attorneys.

To connect with Dror: 212.682.6222 or [hidden email] or online
To learn more about Dror Bikel: drorbikel.com
To learn more about Dror's book The 1% Divorce: When Titans Clashsuttonhart.com

For media inquiries or speaking engagements: [hidden email]



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