The Challenges of LGBTQ Family Law in New York and Beyond

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 LGBTQ 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 LGBTQ 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 LGBTQ 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 LGBTQ 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 LGBTQ 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 LGBTQ 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 LGBTQ 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 LGBTQ 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 founded and leads Bikel & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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