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Non-Traditional Families / Gay and Lesbian Parenting

Since the beginning of my private practice, in 1986, I have served the needs of gay and lesbian couples, in protecting their families and assisting them when their relationships' end. In doing so, I was a leader in establishing the means for protecting the relationship of children with both mothers through "custody" agreements, and later, in establishing of same-gender adoptions as an option in Colorado. When the Colorado Supreme Court terminated the possibility of such adoptions, I then created another means of securing the parental rights of both mothers, or of both fathers, for gay couples who adopt.

In addition to parenting issues, I have created documents for gay and lesbian couples, to provide them with as many of the protections afforded by marriage as possible, and have represented gays and lesbians in resolving the termination of their relationships in the most fair and least conflictual way possible.

Domestic Partnership Agreements

Because there is no system of laws that govern the rights of gays and lesbians when their relationship ends, it is very important for couples to create enforceable written agreements, which will come into effect if the couple later separates. It is always easier for couples to come to agreements at a time when they are getting along well together, about what they both consider to be fair in the event of separation, than it is at the time of a separation.

The matter of fair division of jointly-owned assets is especially difficult and complex, and can involve significant amounts of the parties' financial resources, especially if they have purchased a home together. These matters can best be determined through creation of a partnership agreement while the couple is intact.

Sperm Donor Agreements

When lesbian individuals or couples choose to have a child through reproductive technology, they generally intend for the donor of semen to have no legally-recognized relationship with their child. Similarly, the donor generally wishes to have no rights to the child, and to avoid any legal obligations to the child, for support.

Under Colorado law, if a man provides his semen to a woman to whom he is not married, for purposes of insemination, and if the insemination is supervised by a licensed physician, then, the donor is deemed not to be the legal parent of any child conceived with his semen. However, there are cases in Colorado that have created the need for clear, properly-written agreements between the donor and recipient, to avoid the possibility of the donor being recognized later as a legal parent.

One of my specialties, therefore, is the drafting of sperm donor agreements that preserve the intentions of the parties, and include specific details of the arrangements between the parties. These agreements must be signed prior to insemination, to ensure validity.

Estate Planning

Because gay and lesbian couples cannot legally marry, they do not automatically enjoy the protections that marriage provides. It is important for couples to create those protections through establishment of documents such as Powers of Attorney and Wills. Through Powers of Attorney, a couple authorizes his or her partner to act as agent, for medical and/or financial decisions, in the event of incapacity, and to have access to the incapacitated partner, which would otherwise be refused.

By executing Wills, the couple can ensure the estate of each, or a designated portion of the estate, is left to the other partner. If the couple has children, they also designate the trustee and guardian who would care for their children, in the event of the death of both partners.

Parental Rights

I was the recipient of the Barrister of the Year, 2000 award for creating legal protections for gay and lesbian families with children.

Second Parent Adoption Statutes

In 2007, Colorado enacted a new law that allows a child to be adopted by a second parent, with the consent of a single parent, if the child has no other legal parent. Previously, such adoptions were only permitted if the second parent married the single parent. Under the new statute, any unmarried couple can share parental rights, and, for example, a grandparent can share parental rights to a grandchild with his or her own adult child.

For lesbian couples in which one partner bears a child via artificial insemination or IVF procedure, and for gay couples who contract to inseminate a surrogate mother with the semen of one of the partners, this adoption procedure will be available to the second partner, after the birth of their child. Couples who wish to adopt a child will need to go through the adoption process twice. One partner will adopt through the pre-existing adoption statute, and, when that adoption is final, the other partner can adopt via the new law.

The Second Parent Adoption statute requires a home study to be performed by an authorized agency, and completion of federal and state background checks of the adopting party.

Uniform Parentage Act

The UPA is back!

It is again possible to affirm parental rights via the Uniform Parentage Act (UPA), at least to get pre-birth orders affirming the parental rights of the partner of a pregnant mother. I created this means of getting both mothers or fathers on their children's birth certificates, in 1998. However, after the new second parent adoption statute cam into effect, in 2007, the local judges stopped granting UPA petitions. This change in policy greatly prejudiced lesbian couples in which one partner is pregnant, because adoptions, unlike the UPA can only provide parental rights after the birth of the child. I hope to reestablish the UPA as a means of providing parental rights to men and women whose partners adopted, as well as those whose partners are giving birth. Check back for the update on progress of those efforts.

At this time (March, 2008), the option of obtaining parental rights via the Uniform Parentage Act (UPA) is not available, except in a limited circumstance. Following enactment of the new second parent adoption statute, in August, 2007, the judges in the Boulder District Court ceased granting UPA petitions. Their decision greatly disadvantages gay and lesbian couples who have children through artificial insemination, IVF, or surrogacy.
Because Boulder was the only jurisdiction that reliably granted UPA petitions, their decision to stop accepting those petitions effectively eliminates the UPA option in Colorado.

A group of attorneys has cooperated in appealing the decision. However, the judges have not ruled on the motion. We are currently waiting for their decision, in the hope that they will again permit the filing of UPA petitions.

The sole situation in which it is still possible to obtain parental rights via the UPA is a petition by two partners who
have conceived a child using one of the partner’s ovum, while the other partner carries and gives birth to the child. I have successfully obtained decrees granting parental rights under those circumstances, even after the judges ceased granting petitions under other circumstances.

Please review the section on this webpage concerning the second parent adoptions, which is currently available. Feel free to contact me regarding the status of the appeal of the UPA decision, also.

Gay "Divorces"

I provide legal representation and counsel to gays and lesbians who are ending their relationship, including issues related to children and property. Because gay and lesbian couples cannot legally married, their break-up is not an actual divorce, and is, therefore, not governed by the divorce laws. Because the lack of specifically applicable law makes these cases very difficult and expensive to resolve through the judicial system, my emphasis is on thoroughly advising my clients so that they are prepared to resolve their issues through mediation.

When children are involved, the "divorcing" couple must also determine the matters of parenting time (when the child or children will spend time with each parent), and decision making (Whether decisions about the welfare of the child or children, e.g., decisions concerning matters of medical care, education, religious upbringing, and extracurricular activities, will be made jointly by the parties, or solely, by one of the parties.) If the couple has raised the children together, as a couple, these matters must be determined even if only one partner has been legally recognized as a parent.

It is vitally important, for the welfare of the children, and for the future cooperative co-parenting by the parties, that these issues be determined with a minimum of conflict, and according to the best interests of the children. Even the best parents can become caught up in the negative feelings surrounding a separation, and lack knowledge of what parenting arrangements best serve children's welfare, when the parents separate.

I have worked with certain mental health professionals who specialize in parenting after divorce, to educate them so that they have become experienced and qualified to assist gay and lesbian couples about their post-separation parenting issues. These mental health professionals serve as mediators for the couple, to facilitate discussions that lead to agreements, with the assistance of their specialized knowledge of child welfare.