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|  | Feature Red Tape Protecting Gay and Lesbian Families  By JoSelle Vanderhooft
Seanna Williams and her partner Kim Carey know first hand what tragedy looks like. After “jumping through a lot of hoops” including psychological interviews and months-long waits to see the only doctor in the state at the time who would help single females conceive via artificial insemination, their first child — a girl — was stillborn.
Williams, a full time social worker at the Utah AIDS Foundation and the Harm Reduction Project, remembers a poignant encounter that night at the hospital in Orem, where the couple and their son Sullivan reside: “The night nurse came in and we were filling out the death certificate,” she recalls. “Kim was pretty out of it on medication and we were waiting for this poor child to be born so we could bury her. And the nurse said, ‘Ok, so let’s see, where do we put your information?’ This is three a.m. and it’s already been two days, and I just kind of looked at her and said, ‘This is Utah. There is no place for my information.’
“She looked at me and said, ‘No, that isn’t right.’ And she kept turning this paper over like something was going to magically appear,” continued Williams.
“I think a lot of people don’t pay attention,” Carey, a stay at home mom, gently adds while bouncing a fussy Sullivan, four months old. “They don’t have a clue that you don’t have any rights to him.”
But whether or not most people know it, gays and lesbians have not been able to adopt their partners’ children under Utah law since Governor Mike Leavitt signed House Bill 103 into law in 2000. After that, Utah’s adoption laws, which previously had allowed any adult to adopt, barred people “cohabitating” in sexual relationships other than “a legally valid and binding marriage under the laws of this state” from adopting children — thereby leaving people like Williams with the same responsibilities as heterosexual parents, but few of the rights and protections.
“[They’ll] let me pay for my son’s medical [bills] and schooling and the million dollars that it takes to raise a child,”
Williams says, “But [they] won’t give me the rights to protect me if something happens to the birth mother.”
It’s a terrible situation, and one Utah attorney Laura Milliken Gray finds intolerable, particularly given the rights families and especially children receive from legal adoption.
“Children gain a lot of legal rights through being adopted,” she said. “They get federal Social Security death and disability benefits if the adoptive parent dies, the right to inherit from that parent, the right to get on that parent’s health insurance through that parent’s employment and the right to stay with their non-biological parent if their natural parent dies or becomes disabled. The legislature just stripped those rights away and effectively bastardized these children because [these families] are unable to avail themselves of the protections available before the passage of that law. That really affected lots of families here.”
After the new statute’s creation, Gray says she’s had to “get creative” in finding ways to help her clients gain at least some protections they would have enjoyed when she performed her first “second-parent” adoption for a Utah lesbian couple in 1998. Now that Utah law forbids unmarried couples from entering into these adoptions, in which the non-biological gay or lesbian parent fully adopts the child, gaining the full legal rights over their children that a heterosexual step-parent would have, Grey says she typically presents her clients with two options these days: co-guardianship actions and co-parenting agreements.
According to Gray, the two arrangements work somewhat differently. In the first, the child’s non-biological parent simply enters into an agreement to act as his or her child’s co-guardian. Although a court has to file such an action, it grants the adoptive parents only a fraction of rights over their adoptive children.
Co-parenting agreements, on the other hand, work a little differently. These are simply agreements between the two parents which define their intentions in raising the child together and provisions for how the child will be raised if their relationship breaks up or if one partner dies or becomes disabled.
“One thing we’re seeing now in this marriage paranoia frenzy that’s occurring with these anti-gay marriage laws, particularly in Utah, is laws that try to prohibit gay couples from going to court for redress for any of the issues that may arise if their relationship ends,” including dividing property and arranging for visitation and child support, Gray explains. “It’s somewhat unclear as to whether these agreements would be honored by courts in every case or not, because it’s new and nobody’s tried it here yet. But my opinion is I have to do something.”
Gray wants to do everything in her power to protect these families — not only from intrusion by third parties who might try and break them apart, but also “in the event there’s a break up so that both parents can continue their relationship with the child if that was their intention from the beginning.” She also recommends that gay and lesbian couples carefully plan their estates, naming partners as guardians in wills and trustees when setting up trusts for their children.
Nonetheless, Williams and Carey see such necessary legal actions and papers as more red tape to wade through, because they only give them a fraction of the rights married couples enjoy. This became clear to Williams when Carey went into labor with Sullivan seven weeks early. At this time, Williams realized that she didn’t have any legal documents for their baby, and her partner’s parents would have full rights to her son if Carey died in labor — a very real possibility considering her high-risk second pregnancy.
“I had to run home and hurry up and type up a document of power of attorney and a guardianship document specifying that if something happened to her in child birth, I got to make the decisions for [Sullivan],” Williams recalls. “I had two nurses witness it because there was no notary available and [hoped] that that was going to hold up in court.”
She laughs at the situation’s absurdity: “I don’t think other people have to go through with that. Since he’s been born, we have to carry documents that don’t even mean anything in Utah. Cohabitation agreements, co-parenting agreements, stuff that is totally not legal, isn’t worth the paper it’s written on. None of it is more or less in Utah, it just goes to show intent in case something happens to her. But we have to carry it everywhere.”
Additionally, Williams said she chose not to enter into a co-guardianship agreement due to the high cost and the unlikelihood of an Orem judge granting such a measure.
“I don’t have that kind of money right now,” she explains. “I mean, I’m a social worker for two non profits so I don’t have that kind of money. And co-guardianship still doesn’t mean much. I mean, if something happens to her, I could have all the guardianship papers in the world. Even co-guardianship. But if her married, hetero siblings wanted to step in on her death, they’re going to win. They are blood related to this child. They can provide more. They have a two-parent family with other siblings — even with co-guardianship I would probably lose custody.”
Although Carey’s parents and siblings have accepted their relationship and their family, that acceptance doesn’t make either of them feel more comfortable.
“You know after your child dies things change,” Williams says. “Her parents are very cool right now, as cool as they can be, but she’s got some siblings who are very wealthy and two parents and kids in the house, and I wouldn’t even have the finances to fight [a custody battle].”
It’s a worry for me,” Williams continues. “I have no ties to this child legally or blood wise. And right now our relationship is great, but legally if she wanted to, Kim could just pack up and go and there is absolutely nothing I could do. I couldn’t sue her in court or demand visitation.”
“And I wouldn’t be able to demand child support for him either,” Carey adds.
When it comes to challenging the law in court, Gray also hopes for the best, even though she knows that the current climate of political hostility towards gays and lesbians means Utah courts aren’t ready to hear challenges to the statute — yet.
According to Gray, after testifying before the legislature against HB103, the bill limiting adoption to legally-married couples, “When I was walking out, I walked by Gayle Ruzicka and said, ‘This is not over and I’ll see you in court.’ I meant it, and I will get there because I think this is a manifest injustice. But when you bring those kinds of suits you have to wait for the right time, and now is not the right time.”
Sadly, waiting for the right time seems an increasingly harrowing task for Williams and Carey, who fear that the increasingly hostile political climate Gray described may have an immediate effect on their family — particularly with Amendment 3 on the November ballot.
“[If the amendment passes] we couldn’t even appeal to the legislature to do anything about certain rights. It would tie their hands because it’s a constitutional amendment,” Williams explains. “That really frightens me because I don’t know how far people will go. You know, does somebody call DCFS and say ‘they’re in violation of everything?’ Does it come down to, ‘I’m sorry — one of you is going to have to move out or you’re going to lose custody of your child?’”
“I’d like to think that Utah would not go that far, but without some kind of protection in place and something to fall back on, who knows if that’s the next step?” said Williams. “You’ve got people saying that this child is being abused simply because he’s with two women — that he’s in an abusive family and he’ll never grow up normal.” After a pause, she continued, “You know, I don’t know how ‘normal’ he’s going to be, but he’s going to be very well loved.”
Nonetheless, Williams takes some comfort in remembering the conclusion of her encounter with the night nurse at the Orem hospital the night her first child died.
“She got teary eyed,” Williams remembers. “She said, ‘That’s not right.’ I said, ‘Are you from Utah?’ and she said, ‘I’ve lived here all my life.’ This is a nice little Mormon nurse, you know, on the delivery unit and she was just floored that we were going through this and my name wasn’t going to appear anywhere on the death certificate. And that’s where I thought, ‘You know, I don’t think most people demonize same-sex households the way politicians would like to think they do.’”
“The more people I talk to the more I realize Joe average voter out there doesn’t care,” Williams continues. “Our neighbors do not care. They came to our baby shower. When Kim got out of the hospital they brought dinner over. The more people I talk to the more I wonder who are these politicians representing when they say, ‘We’ve got to move on this’ and ‘We’ve got to stop this?’”
“I wish people could know that we’re not different,” she continues. “My lawn has to get mowed once a week, my house gets clean, my laundry gets done and I need to take my car in for an oil change. My kid won’t sleep all the way through the night — oh please oh please sleep all the way through the night — we have financial problems, we have arguments, we have family stresses.”
“And we have the same goals for our son,” Carey interjects, handing a cranky Sullivan to her partner. “We want to raise him to be a good, kind, generous, loving human being.”
Williams takes her son in arms, smiling: “We want him to go to school, and be a fabulously wealthy doctor someday,” she chuckles, “and marry a nice girl or a nice boy — whatever he chooses to do and have a wonderful life.”
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