Same-Sex Spouses Turn To Adoption To Protect Parental Rights

Sep 22, 2017
Originally published on September 23, 2017 12:04 pm

Meredith and Martha Holley-Miers live in a brick row house in Washington, D.C. with their two kids and a big rainbow flag in front. The couple has been legally married for seven years — and together for 14 years.

When they decided to have a baby, they "went through a lot of time and a lot of money and a lot of heartache trying to get pregnant," Martha says. They used an anonymous sperm donor, and it took them many months. When Martha gave birth to daughter Janey — now a bubbly 8-year-old — in 2009, they knew that they'd need to put forth yet more time, money, and heartache.

"We knew that unlike straight couples having a baby there is no automatic legal connection between Meredith and the baby that that we had together," Martha says.

Behind that difference is something called the "marital presumption." When a married man and a woman have a child, they're automatically considered the parents of that child in the eyes of the law.

But many same-sex married couples worry that's not true for them. When a woman gives birth to a child, for example, her female spouse may not have the same legal rights as a parent — even if she's on the birth certificate. In 2015, the Supreme Court ruled that same-sex couples had the right to marry but courts haven't resolved what parental rights flow out of those marriages.

So to make sure sure the spouse's parental rights are protected by the law — same-sex couples are going through a months-long, invasive legal process known as second-parent adoption. NPR asked to hear about families' experiences with this process — we heard from dozens of people from Oregon to Oklahoma. Some called it "humiliating," "absurd," "frustrating;" for others it was a mere inconvenience.

For the Holley-Miers family, the whole adoption process took months and cost about $3,500. A judge granted Meredith the adoption of her daughter Janey in July 2009.

That process involved a physical, blood work, TB test, and fingerprinting, says Meredith. There were additional state and FBI background checks, too. But the most stressful aspect of the process, the couple says, was a home visit by a social worker.

"Anybody who adopts has to do a home study," Meredith says. "It just bothered me that we had to do the whole process in general."

"It was hard to not compare our experience to the experience of straight couples who — while I know a lot of straight couples have a hard time having kids — there are a lot of people who get pregnant without even planning it, and nobody really questions whether or not they are fit parents," Martha says. "It just felt really unfair."

But they felt the second parent adoption was something they had to do.

Martha worried that if she died, "Meredith would be left taking care of a baby that she had no legal bond to. And so if my family decided that they didn't like that, they could take Meredith to court and they would have a stronger legal relationship to our baby than Meredith would if we didn't do the second-parent adoption," she said. "Or if we ever — God forbid — were to split up and she didn't have a legal connection to the baby then custody issues would be very difficult for her to pursue a legal custody relationship with the baby."

The family's attorney, Michele Zavos, has spent decades helping same-sex couples protect their parental rights.

"Our law is based on heterosexual, patriarchal circumstances," Zavos says. "What we've had to do is take that framework and use it to then try and create legal relationships for people who don't fit that framework. Second-parent adoptions were made up — I think first in California — probably about 30 years ago. And now they are the law of the land."

The Supreme Court has weighed in on this, saying states have to legally recognize second-parent adoptions granted by courts in other states — no exceptions.

The Holley-Meirs' are now in the second-parent adoption process again, this time for their three-year-old, Jack. They began the process the day after President Trump was elected.

"I was afraid that he wouldn't be at all committed to continuing protections for our family," Martha says.

President Trump has not said he intends to chip away at the rights of same-sex families. Still, Martha and Meredith say they're nervous.

Their attorney, Michele Zavos, says they should be. But she says she is seeing family law evolve in some jurisdictions.

"One thing happening around the country that I think is actually quite exciting is that parentage would be based on intent," she says. "For example, we have this statute in D.C. that says if both people intend to raise the child, they're both legal parents, biology notwithstanding. When we start moving toward intent, and getting away from biology, then we will have circumstances that everybody will fit into."

But many states haven't weighed in yet on whether or not intent is enough to establish parental rights for same sex couples. For now, Zavos says, second parent adoption remains the best way to ensure two women who are married can both claim to be the legal parents of their children.

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AILSA CHANG, HOST:

Say a man and a woman are married. The woman gets pregnant and gives birth to a baby. The man she's married to is automatically the child's parent in the eyes of the law, no questions asked. Now let's say a pregnant woman is married to another woman. When that baby is born, the woman who didn't give birth may not have the same legal rights as a parent even if she's on the birth certificate.

The Supreme Court ruled that same-sex couples had the right to marry in 2015, but courts have not resolved what parental rights flow out of those marriages. So there's a workaround, but it can be a months-long, expensive and sometimes invasive legal process.

Are you Meredith?

MEREDITH HOLLEY-MIERS: I am.

CHANG: Hi. I'm Ailsa.

MEREDITH HOLLEY-MIERS: Hi, Ailsa.

CHANG: To understand that process, we dropped in on Meredith and Martha Holley-Miers one Sunday morning. They live in a brick row house in Washington D.C. with a big rainbow flag in front. These women have been legally married for seven years. They've been together for 14 years.

JANEY: Welcome to my crib.

(LAUGHTER)

CHANG: That's their daughter, Janey, a bubbly 8-year-old with a bright red, white and blue bow in her hair. She's big sis to 3-year-old Jack.

MARTHA HOLLEY-MIERS: Do you want to hold the doll?

CHANG: Inside, there's kids art everywhere. The dining room table is covered with Play-Doh. The kids hop over to the sofa to watch cartoons, and we file into the living room where there is a pile of folders.

MEREDITH HOLLEY-MIERS: So those are documents.

CHANG: These documents - several inches thick - essentially serve as proof that Meredith is a parent to the children Martha gave birth to. They used an anonymous sperm donor. There are papers detailing their estate planning, their decision to take each other's last names, and part of the stack includes documentation for what's called a second parent adoption.

Why did you feel like you needed that legal certification that Meredith was the other parent?

MARTHA HOLLEY-MIERS: If there ever happened to be something where I passed away, Meredith would be left taking care of a baby that she had no legal bond to. And so if my family decided that they didn't like that, they could take Meredith to court, and they would have a stronger legal relationship to our baby than Meredith would if we didn't do the second parent adoption.

Or if we ever - God forbid - were to split up and she didn't have a legal connection to the baby, then custody issues would be very difficult for her to pursue a legal custody relationship with the baby.

CHANG: What did you have to go through for the second parent adoption? You said a home study.

MEREDITH HOLLEY-MIERS: I mean anyone who adopts has to do a home study. It just bothered me that we had to go through the whole process in general. But there's a home study. You have to take a physical, bloodwork, TB test. There's background checks, fingerprinting.

MARTHA HOLLEY-MIERS: You have to do state and FBI background checks. And because she lives in D.C. but technically works in Maryland, she had to do them in both jurisdictions. But the biggest thing that felt like - it felt very stressful leading up to it - was this home visit with the social worker.

CHANG: Yeah. Tell me about that.

MARTHA HOLLEY-MIERS: We didn't really know what to expect from it. We just knew a social worker who was contracted by the city was going to come and interview us and make sure that our home was safe and secure for this baby. And it was hard to not compare our experience to the experience of straight couples who while I know a lot of straight couples have a hard time having kids, there are a lot of people who get pregnant without even planning it. And nobody really questions whether or not they are fit parents. And we went through a lot of time and a lot of money and a lot of heartache trying to get pregnant, and it just felt really unfair that then someone else could come into our home and decide if we were fit parents.

CHANG: The whole adoption process took months and cost about $3,500. Finally a judge granted Meredith the adoption of her daughter Janey in 2009. Their attorney, Michele Zavos, has spent years helping same-sex couples protect their parental rights.

Do you think the law is actually discriminatory, or do you think this is just an example of how family law can be very anachronistic and is just slow to catch up?

MICHELE ZAVOS: Or it can be both.

CHANG: Or it can be both. Are they one in the same idea in a way?

ZAVOS: You know, our law is based on heterosexual, patriarchal circumstances. What we've had to do is take that framework and use it to then try and create legal relationships for people who do not fit that framework. Second parent adoptions were made up I think first in California probably about 30 years ago, and now they are the law of the land.

CHANG: The Supreme Court has weighed in on this, saying states have to legally recognize second parent adoptions granted by courts in other states - no exceptions.

MARTHA HOLLEY-MIERS: Do you want a piggyback?

CHANG: Martha and Meredith are in the second parent adoption process again now, this time for Jack. He's 3. They didn't do it right away after he was born. They said they just weren't that worried at first.

When did you guys start getting worried?

MARTHA HOLLEY-MIERS: November 8, 2016. The next morning, brushing away tears, I sent an email to Michele, our attorney, and said, let's figure out moving forward with the second parent adoption.

CHANG: What were you afraid of under a President Trump?

MARTHA HOLLEY-MIERS: I was afraid that he wouldn't be at all committed to continuing protections for our family.

CHANG: President Trump has not said he intends to chip away at the rights of same-sex families. Still, Martha and Meredith say they're nervous. And their attorney, Michele Zavos, says they should be. But she says she is seeing family law evolve in some jurisdictions.

ZAVOS: One of the things that's happening around the country that I think is actually quite exciting is that parentage would be based on intent. So for example, we have this statute in the District of Columbia that says if both people intend to raise the child, they're both legal parents, biology notwithstanding. When we start moving toward intent and getting away from biology, then we will have circumstance that everybody will fit into.

CHANG: But many states haven't weighed in yet on whether intent is enough to establish parental rights for same-sex married couples.

ZAVOS: It would be great if every state passed that, but that's not happening in my lifetime.

CHANG: So for now, Zavos says, second parent adoption remains the best way to ensure two women who are married can both claim to be the legal parents of their children.

(SOUNDBITE OF GOLDMUND'S "BALLAD OF BARBARA ALLEN") Transcript provided by NPR, Copyright NPR.