Second Parent Adoption and the meaning of ‘intimate partner’ expands in New York

New York County Surrogate’s Court recently ruled that two friends who were raising a child together, a child that one of the friends had legally adopted from abroad, could both be recognized as parents via a second parent adoption because an ‘intimate partnership,’ for the purpose of adoption at least, does not require a sexual relationship or cohabitation.

These two friends raised the child together since birth, sharing custody and care duties across their two households (Brooklyn and Manhattan), sharing grandparent time with both of their sets of parents, and creating what sounds like a loving and stable family.

The court made a sweet commentary on the problems with using the ‘traditional/nuclear’ family as a benchmark instead of supporting legal parental relationships in the best interests of individual children.

“Historically, there has been an implicit, and often explicit, preference for giving adoptive children homes in nuclear families consisting of parents who are husband and wife… This idealized family structure is often referred to as “traditional.” The label “traditional” family for the nuclear, heteronormative family, implying it is the typical family, is a misnomer in any event. The “nuclear family” has not represented the norm for large sections of the population in a long time… As society acknowledges an ever expanding cadre of family compositions, adoption law, as the Court of Appeals in Jacob directed, should not lag behind. To do otherwise would have the effect of withholding the benefits and protections of a legal parent from children without regard for what would be in their best interests.”

It is hard for me to choose a favorite part of this case. I love the expansion of legally supported families, I love the recognition that there are relationships beyond the biological and sexual that are worthy of legal recognition, and I love empowered reading of statute and case law to entitle this individual child to the protections of a legally recognized family.

Matter of G., Surrogate’s Court, New York County, Decided: December 27, 2013

On Lilith: To Whom Does a Child Belong

The Indian Child Welfare Act case currently being decided by the Supreme Court evokes questions about the relationship between a child and a community (broader than the newborn’s biological parents) who feels a connection to that child, as well as showcases the great harm that a shoddy adoption agency can inflict. On the Lilith Blog: To Whom Does a Child Belong

A Sourcesheet on Assisted Reproductive Technology and Jewish and Secular Law

ART & Jewish and secular law [Word]

This is a sourcesheet I prepared for a workshop a couple of years ago. Most of the sources are secondary, scholarly articles and editorials. It is organized around the question of a child’s right to know and be raised by his or her biological parents and it is meant to be a resource for learning and discussion.

Table of Contents

Assertion: A child has the right to know and be raised by its biological parents

  • Rabbi Einat Ramon, “In Israel, A Call to End Anonymous Sperm Donation”
  • British Columbia Supreme Court: sperm donor anonymity violates Charter of Rights and Freedoms
  • Prof. Margaret Somerville: Children’s human rights to natural biological origins and family structure
  • United Nations: Convention on the Rights of the Child

Who are a child’s parents?

  • Secular Law
  • When legal paternity is established
  • When the presumption of a husband’s paternity is factually wrong
  • When a legally recognized ‘parental project’ pre-empts the legal parenthood of the biological parents
  • In case of adoption
  • Jewish law
  • When the biological father is living at the time of conception:
  • When the biological father died before conception/implantation and when the genetic father is not Jewish:
  • When the child is the product of a levirate marriage
  • When the gestational mother and genetic mother are different
  • When the genetic father and ‘social father’ are different
  • In case of adoption

The right to know

  • Secular Law
  • Reasons for recognition
  • Concern of disparate impact on different forms of families
  • Concern of availability of donor gametes
  • Who recognizes it and how does it work?
  • Jewish Law
  • Preventing prohibited sexual relationships
  • Concern of birthing a Jewish child into non/insufficiently Jewish family

On Lilith: Sisters In Law

I was interested and inspired reading the article, Muslim women lawyers aim to reconcile traditional beliefs with secular society,about Muslim women’s feminist work in secular and Islamic law, “to uncover a faith stripped of the patriarchy,” in the February ABA Magazine and wrote about it on the Lilith blog: Sisters In Law.

Free Uncontested Divorce Help in New York for Simple Divorces

The New York Access to Justice Program’s Uncontested Divorce Clinic is an incredibly useful service that could hardly be more under-publicized. I am proud to be a volunteer in Kings County and my personal knowledge is based on that program.

If your divorce is sufficiently simple to qualify for the clinic’s help, volunteer lawyers or law students will draft your divorce paperwork for free and explain to you how to file it. They can also help you draft a fee waiver request.

You will have to make an appointment and go in person during clinic hours, which are limited. They will tell you what to bring, likely a copy of your marriage certificate and any prior family court orders.

For our program, we helped people if:

  • They knew where their spouse was and expected their spouse not to contest; and
  • They were filing based on the grounds of a 6 month (or more) irretrievable breakdown of the marriage; and
  • They who were not seeking any division of assets or maintenance; and
  • They had no minor children (or who had family court orders in place for child support and custody); and
  • There were no domestic violence issues (we referred these to other help centers)

Every county New York has a help center; I don’t know whether every county runs an uncontested divorce clinic. I’ve posted contact info for the 5 boroughs below, but here is a link for the full list of help centers. Call or visit to find out whether they have a program and/or make to make an appointment.

Contact information for New York City:
Bronx: Supreme Court Matrimonial Support Bureau, (718) 618-1350, 851 Grand Concourse, Room 121
Kings (Brooklyn): Kings Supreme Court Help Center (347) 296-1740, Supreme Court, 120 Jay St. Room 122c
Manhattan: New York Count – Civil Branch – Help Center (646) 386-3025, Supreme Court Civil Branch, 60 Centre St., Room 116
Queens: Supreme Court Help Center (718) 298-1024, Supreme Court, Room 100 (hours and more information on the website)
Richmond (Staten Island): Supreme Court Help Center, (718) 675-8589, 25 Hyatt Street, 5th Floor

What goes into a surrogacy contract?

 
Essential Points of Agreement for a Surrogacy Contract
Download as [docx] or [pdf]

Surrogacy arrangements (wherein a woman agrees to bear a child for another person or couple and to relinquish that child to them after birth) can be legally as well as emotionally complex.

While surrogacy contracts are not legally enforceable in many jurisdictions, they can be very helpful for making sure that everybody is on the same page and for minimizing the potential for destructive disputes later.

The following is a list of sample clauses for a surrogacy contract. It is not exhaustive, and not all clauses will be relevant or desirable in all cases. However, I hope it is helpful as an overview of the breadth of issues, life choices, and risks, implicated in a surrogacy arrangement.

Please be aware: I am sharing this list as a potentially helpful general reference only. It is not legal advice. Also note: not all clauses will be applicable, enforceable, or even legal in all jurisdictions. Many clauses will benefit from elaboration according to the particularities of the situation, and/or may be improved with more detailed or jurisdiction-specific language.

Given the legal complexity and often uncertainties involved in surrogacy arrangements, I strongly urge anybody contemplating a surrogacy arrangement to seek legal advice specific to their jurisdiction and personal situation.

The sample contracts from www.allaboutsurrogacy.com contain many helpful models.

General clauses
    Declaration of Intentions
    Assumption of Risk
    Warranties and Disclaimers
    Jurisdiction
    Financial Issues
    Termination of contract
Before pregnancy
    Health precautions
    Insemination
During Pregnancy
    Prohibitions on Surrogate
    Obligations
    Healthcare
    Abortion
Birth and Post-Birth

General clauses

Declaration of Intentions

  • The purpose and intent of this agreement is to enable the Intended Parents (if applicable: one of whom will be the genetic father), to parent a child or children through the services of the Surrogate.
  • Surrogate and Intended Parents intend to effect an altruistic/commercial traditional/gestational surrogacy agreement, in which Surrogate will be inseminated with Intended Father/donor semen and carry the resulting fetus to term.
  • Surrogate and Intended Parents intend Intended Parents to be legal parents with all legal rights and responsibilities.
  • Child born from the agreement will have all testamentary and inheritance rights from Intended Parents, none from Surrogate.
  • Intended Parents commit to take full immediate absolute custody notwithstanding and abnormalities of the child
  • Surrogate intends to relinquish all rights and responsibilities; she will not be liable for support, custody, or any liability related to the child.
  • Intended Parents commit to covering Surrogate’s uncovered medical expenses related to pregnancy, miscarriage, and birth, including an abortion for medical reasons, even if a fetus does not survive pregnancy, is stillborn, or does not survive to leave the hospital.
  • Intended Parents commit to covering all uncovered expenses for the child, including burial costs if the child is stillborn or does not survive to leave the hospital.
  • Surrogate will cooperate in any legal procedures to relinquish rights and responsibilities to Intended Parents
  • The Intended Parents separation or divorce will not affect their mutual and individual obligation and right to acquire legal parental status for the child.
  • In case one Intended Parent dies, the other maintains the obligation and right to obtain parental status.
  • In case both Intended Parents dies, they appoint Guardian to inherit the obligation and right to obtain parental status, and Surrogate agrees to surrender the child to him/her. (if at all possible, the guardian should sign the agreement)
  • The parties intend to be morally bound by this contract, and legally bound to the extent recognized by law.

Assumption of Risk

  • Surrogate is aware of the risks of pregnancy and knowingly and willingly undertakes them
  • Surrogate is aware of and waives the increased risks incumbent in the use of unquarantined semen
  • Parties understand the many legal and physical risks involved and that there is no guarantee of any particular outcome.

Warranties and Disclaimers

  • Lawyer disclaims any and all warranties for any particular outcomes.
  • Lawyer is not responsible for evaluating or investigating the existence or extent of any insurance coverage.
  • Parties have had independent advice and have been informed by their respective attorneys that the legislature or Courts may declare that this Agreement is void as against public policy, in whole or in part, or held unenforceable in whole or in part
  • Parties warrant that they understand that if any aspect or provision of this Agreement violates any present or future non-waive-able civil or constitutional right of any Party to this Agreement, or any present or future statute, law, ordinance or regulation, that aspect or provision may not be enforced. However, the Parties further warrant and agree that any said aspect or provision shall be curtailed and limited only to the extent necessary to bring it in compliance with the law.
  •  It is expressly understood that this Agreement in no way constitutes payment for genetic material, for a child, or for relinquishment of a child.
  • Surrogate warrants that to the best of her knowledge, she is fertile and capable of carrying a pregnancy to term.
  • Intended genetic father warrants that to the best of his knowledge, he is fertile.

Jurisdiction

  • Parties designate State/Province XXXXX as the jurisdiction for this contract and intend it to be governed and interpreted by the laws of XXXXX.
  • In case of a dispute about the interpretation of this contract, parties commit to seeking mediation/binding arbitration/etc. with X mediator (or a mediator or lawyer from Y list/etc).

Financial Issues

  • Intended Parents will issue payment directly to healthcare providers whenever possible
  • Intended Parents agree to promptly (within X time) reimburse Surrogate for any health care expenses she must cover directly, upon receipt of documentation, via Paypal/check/etc.
  • QUESTIONABLE/UNACCEPTABLE IN NEW YORK (and likely other jurisdictions that prohibit commercial surrogacy)
    • In case of bedrest/temporary disability to work/permanent compromise of reproductive ability/other bad thing, Intended Parents agree to compensate Surrogate dollars $X (Questionable)
    • Intended Parents will pay term life insurance for Surrogate continuing 2 mos after birth or longer if physician says so. (Questionable)
    • Intended Parents agree to cover the costs of transportation to and from pregnancy related health care, lost work time, maternity clothes, etc. (Unacceptable)

Termination of contract

  • Before pregnancy, either of the Intended Parents or the Surrogate may terminate the contract with two days’ notice to all parties. Intended Parents will be responsible for the reimbursement of all the Surrogate’s surrogacy-related medical expenses until notification is given.
  • Parties agree that termination of the contract after pregnancy by any of the parties, including through the Surrogate’s elective abortion, or after birth, will be considered a material breach of the contract and the terminating party will be morally liable for reimbursement and damages and legally liable under any applicable legal causes.

Before pregnancy

 

Health precautions

  • Before beginning insemination attempts:
    • Intended Parents and Surrogate will undergo complete medical screening for STDs and any possible health issue that might affect impregnation, pregnancy, or the health of the fetus. All parties waive confidentiality of this testing with respect to all other parties.
    • Intended genetic father and Surrogate will be tested for compatibility for common genetic disorders.
    • Intended Parents will reimburse Surrogate costs for at least one and up to X confidential sessions with a therapist or mental health professional for counseling to fully consider and prepare for the surrogacy process.
    • From the time of screening until confirmation of pregnancy or termination of this agreement:
      • Surrogate agrees to refrain from any activity where semen might enter her body until pregnancy is confirmed, will not have intercourse with anybody else, (even/unless) with a condom, that might allow transmission of an STD.
      • Intended Parents agrees not to have (unprotected) sexual intercourse except with each other.

Insemination

  • Intended Parents will provide Surrogate with semen as described:
  • Surrogate will undertake insemination as described:
  • Surrogate will monitor pregnancy status as described:
  • Surrogate will notify Intended Parents as soon as pregnancy is confirmed

During Pregnancy

Prohibitions on Surrogate

  • Participating in any dangerous sports or activities as advised by the attending physician or Surrogate’s obstetrician;
  • Travelling outside the Province/State of XXXXX before the commencement of the seventh month of pregnancy without prior notice to the Intended Parent
  • Travelling or remaining outside the Province/State of XXXXX after the commencement of the seventh month of pregnancy until the birth of the child
  • Smoking cigarettes or remaining in the prolonged presence of second hand smoke;
  • Applying hair dye or permanent solution during the first trimester of pregnancy;
  • Lifting any weights in excess of the restrictions set forth by the IVF Physician or Surrogate’s obstetrician;
  • Drinking alcoholic beverages;
  • Drinking more than one cup of caffeinated beverage per day;
  • Using any illegal drugs (controlled substances);
  • Taking hot tubs or saunas;
  • Handling or changing cat litter;
  • Ingesting medicinal herbs, saccharine or other artificial sweeteners;
  • Home pesticide application from the time period commencing at least one month prior to the embryo transfer procedure until completion of the first trimester of pregnancy or other termination of pregnancy;
  • Remaining in close proximity to cleansers, hairspray, oven cleaner, pesticides and other aerosol sprays;
  • Applying any topical ointments/creams including, but not limited to steroids, retinal and antibiotics, without the prior approval of Surrogate’s obstetrician;
  • Using any non-prescription drugs or prescribed medication without the prior written approval of the attending physician or Surrogate’s obstetrician; and
  • Undergoing x-rays (except in the event of a medical emergency) or chiropractic treatment without the prior written approval of the attending physician or Surrogate’s obstetrician.
  • Inhaling, ingesting or applying to herself or to others, any essential oil recognized for its potential of adverse effect on the pregnancy, as well as those for which this potential has not been determined. Surrogate shall only be in contact with essential oils deemed safe during pregnancy as per published literature and to inform Genetic Father should she use any.

Healthcare

  • Surrogate chooses physicians with consent of Intended Parents
  • Surrogate waives all medical confidentiality
  • Surrogate agrees to maintain health insurance
  • If Surrogate somehow loses her health insurance, Intended Parents agree to pay premiums for a new policy
  • Surrogate agrees to give Intended Parents documentation of all medical costs: obstetrical, nursing, hospital and maternity care, pharmaceuticals, and pediatric care,
  • Surrogate will comply with all medical instructions, before and during pregnancy, even extensive bed rest, etc.
  • Surrogate agrees to take prenatal vitamins and maintain a healthy diet
  • Intended Parents agree to be the financially responsible party on all medical forms
  • Surrogate agrees to update Intended Parents on the progress of the pregnancy on a weekly basis by phone or e-mail.
  • Intended Parents choose which tests and procedures to undergo and Surrogate agrees to undergo
  • Either Surrogate or Intended Parents can always ask for a second medical opinion
  • Surrogate agrees to go on life support if it will protect the viability of the fetus, even if there is no possible benefit to her.
  • Intended Parents agree to reimburse Surrogate for at least X and up to Y confidential sessions with a therapist or mental health counselor to support her emotionally during the pregnancy.

Abortion

  • Surrogate has absolute right to abort or not to abort.
  • Surrogate intends not to do abort except if for serious medical reasons, which she will share with Intended Parents
  • Surrogate agrees that she will abort at the request of the Intended Parents if tests show a danger of the baby’s quality of life being compromised because of genetic abnormality or any other reason, up until week X of the pregnancy.
  • In case of more than 2 fetuses, Surrogate agrees to selectively reduce if it is medically not contraindicated.

Birth and Post-Birth

  • Surrogate will notify Intended Parents at onset of labor. Intended Parents will be able to be present at labor and delivery (subject to physician discretion).
  • Surrogate will be able to spend X amount of time with the child before giving the child the Intended Parents. Surrogate (may/may not) breastfeed before giving the child to the Intended Parents.
  • Intended Parents will choose what name will appear for the child on the child’s birth certificate.
  • Intended Parents agree to reimburse Surrogate for at least X and up to Y sessions with a therapist or mental health counselor to support her emotionally after relinquishing.

Beginner’s Guide to Mitchell-Lama Housing in New York State

Download: Beginner’s Guide to Mitchell-Lama Housing in New York State [docx]. See also:

Beginner’s Guide
-What is Mitchell-Lama housing?
—–Example of a Mitchell-Lama coop listing
-Getting into Mitchell-Lama
—–Applications
—–Succession
———–Definition of family
-Renting versus buying
-Living in a Mitchell-Lama unit
—–Changes in income and household composition
—–“Buy-out”
—–Renters lose
—–Buyers win
-Links and resources
—–Regulation: law and reality
—–For prospective occupants
—–On buy-outs

Beginner’s Guide to Mitchell-Lama Housing in New York State

What is Mitchell-Lama housing?

The Mitchell-Lama program helps make renting and cooperative ownership accessible to “moderate and middle income” families in New York State.  Developers get special mortgages and benefits in exchange for making apartments available according to regulations found in two places: 9 NYCRR part 1727 (another unofficial version on the NYC website here:Mitchell-Lama regulations) and Private Housing Finance Law Article 2. Mitchell-Lama occupants qualify by income and family composition, benefit from low monthly costs (tied to their income), and are restricted in their ability to sell, bequeath, transfer, and share their units.

After twenty years, the owner of the building, whether it is still the housing company or whether it is the association of coop owners, has the option of buying their building out (“buy-out”) of the Mitchell-Lama program by paying off the mortgage.  It is impossible to know very far in advance whether and when a building will privatize and the consequences of that privatization on occupants. Generally, a  Mitchell-Lama occupant who is a tenant at the time of privatization risks losing all rental protections (unless the state steps in with subsidies or other measures) while a coop owners stand to reap a tremendous financial boon. The unpredictability of the future of any Mitchell-Lama housing is a confounding factor for individuals making evaluations and decisions about Mitchell-Lama occupancy.

The New York State Division of Housing and Community Development (DHCR) is responsible for regulating and monitoring Mitchell-Lama projects. At least in 2007, the Office of the Inspector General ‘s report found that the DHCR is not doing a great job and there are many areas where how Mitchell-Lama works in theory and how it works in practice diverge, sometimes significantly.

Example of a Mitchell-Lama coop listing

Mitchell-Lama Housing Ad
(from Rochdale Village Inc, website)

Getting into Mitchell-Lama

Applications

Every Mitchell-Lama unit has a minimum and maximum income and a minimum and maximum number of occupants. For example, a two bedroom requires a household of at least three people, or a household of a brother and sister who are both adults, or a household of a parent/guardian and a child.

Currently, many Mitchell-Lama developments have all their units occupied and their waiting lists closed.

When units or spots on waiting lists open, that availability is publicized. The application requires prospective occupants to submit their financial information (and the financial information of anyone whom they would move with) to the housing company for each development to which they are applying. There is no clearinghouse or master list.
People often apply to many different developments simultaneously. If the applicant qualifies they will be offered a spot or added to the waiting list. If they are added to the waiting list and offered a spot later (sometimes up to ten years later), they must again submit qualifying financial information – although if their altered family size or income leaves them eligible for other units within that building, they may receive one of those units or be added to the appropriate spot on the waiting list.

Waiting lists are mostly but not purely based on chronological order of application. Current occupants eligible for a smaller or large apartment, veterans, people with disabilities, and local residents, get preferential status. But be warned: the Inspector General’s 2007 report found that in many cases individual Mitchell-Lama projects have been found to manipulate or even ignore their waiting lists.

Succession

Besides independently applying and qualifying for a Mitchell-Lama apartment, the only way to acquire one is through succession.

When a Mitchell-Lama occupant leaves the unit or dies, family members (accorded to the Mitchell-Lama definition below) who have been living with the occupant for at least two years and who have been properly included in prior yearly financial reports may acquire the unit through succession.

If the occupant leaves because he is evicted for cause, however, no one can succeed after him.

Definition of family

Mitchell-Lama regulation recognizes spouses, children (including adopted children and stepchildren), parents (including adoptive parents and stepparents), siblings, nieces and nephews, uncles and aunts, parent-in-laws, and children-in-laws of the occupant as relations, as well as “any other person residing with the tenant/cooperator in the apartment as a primary residence who can prove emotional and financial commitment and interdependence between such person and the tenant/cooperator.”

Renting versus buying

Some Mitchell-Lamas are coops and some are rentals.

Buying a coop requires an initial investment that is puny by New York housing standards but may be prohibitive for some (although financing is possible).

After the initial investment, there is not much difference between living in a coop versus a rental – unless and until an occupant is in residency when a “buy-out” happens. (See below).

Renters and owners pay similar monthly costs (rent versus carrying charges) and renters have as much right to stay in their unit as owners do.

Owners have no more rights than renters to dispose of their apartment. When a Mitchell-Lama owner leaves, they cannot sell their unit except back to the housing company, which buys their shares back for a redemption value calculated according to the initial purchase price and a certain proportion of amortization on the building. In other words, their money is safely stored.

If a Mitchell-Lama occupant is there for a “buy-out” however, a tenant faces significant risks while a coop owner may see tremendous profit.  (See below).

Living in a Mitchell-Lama unit

Financial reporting

Mitchell-Lama occupants must submit yearly reports to the housing company, listing list their own income and financial status and that of everyone else in their household. They must report changes in their household composition to the housing company – for example, if they marry, divorce, have a child, or a child grows up and moves out.

Changes in income and household composition

The occupant can invite a family member, per the fairly extensive Mitchell-Lama definition, to share their apartment. However, the occupant’s fees, and eligibility for their unit, may change based on the new household member’s presence and income.

Bringing in an unrelated person requires the permission of the housing company, including the submission of the prospective roommate’s financial details. There are limited reasons for which the housing company may reject the application, but those reasons include the fact that the applicant’s income or presence in the apartment would affect the occupant’s eligibility for that unit. The occupant may not accept any rent or financial compensation from anybody who is not reported.

As soon as any new person moves in and for as long as they live there, their financial information must be submitted in the yearly report. Everyone living in the unit must be included in the financial reporting, and the occupant may not accept any rent or compensation from anybody not included in the yearly report.

According to the Mitchell-Lama rules, a family member who has occupied the unit as their primary residence for at least two years may request to be added to the lease as a co-tenant or to the stock certificate as a co-owner. However, the DHC’s FAQ indicates the contrary, creating some confusion. In any case, there is little practical difference between being eligible for succession and being added to the lease/stock certificate.

If a Mitchell-Lama occupant’s household income increases, their fees will increase accordingly, up to 150% of the original rate. If the income increases beyond 150%, they no longer have the right to maintain occupancy. However, it is up to the housing company and the DHCR to determine eligibility and to remove occupants, and the 2007 Inspector General’s report found that eviction for this reason happens extremely rarely and many occupants get away with flagrant violations of Mitchell-Lama rules.

Fees may also be decreased based on negative changes in income, but only to down to a certain floor. If a Mitchell-Lama occupant does not or cannot keep up with their monthly costs, they are subject to eviction.

People with disabilities have slightly different rules for fee increases and decreases.

If the occupants’ family composition changes such that there are not enough people for their apartment or they exceed the maximum legal occupancy, they should be moved to the top of the waiting list for a smaller apartment in their building, and lose their eligibility for their current apartment when an appropriately sized new apartment is available to them. They should generally have top priority for moving to another appropriate unit within the building. Based on the 2007 report, enforcement is spotty at best.

Residency requirement

The occupant must maintain their unit as their primary residence. If they sublet or transfer their lease, they lose their right to the unit and whoever is in occupancy is subject to eviction. Unless the remaining resident can qualify for succession, the unit should go to the next person on the waiting list.

“Buy-out”

Twenty years after the grant of the original government benefit, the Mitchell-Lama development is eligible to be “bought out” by the repayment of the value of the mortgage to the government. After the buy-out, the building is no longer bound by Mitchell-Lama regulations. Owners buy-out when the housing market becomes so lucrative that they will do better financially by selling or renting the units at market rates than by maintaining the preferential mortgage terms accorded by the government.

Renters lose

In the case of a rental building, the owner is the housing company who can unilaterally decide to buy-out. There are regulations for giving notice to tenants and to the public, but as soon as the buy-out is complete the company can start charging higher rents, although tenants in Mitchell-Lama buildings built before 1974 will still be protected by rent stabilization. The rent hike is disruptive and economically very dangerous to the vulnerable tenants that the Mitchell-Lama program was meant to help. The government has responded to buy-outs (which are becoming more common as New York housing costs and land value continue to shoot up) by starting voucher and subsidy programs to help Mitchell-Lama tenants stay in their units. However, the availability of those vouchers in any specific case is not guaranteed so tenants are in a precarious situation as soon as a buy-out is on the horizon.

Buyers win

Mitchell-Lama coop owners are in a much better position. As co-owners of the building, they vote on whether to buy out. If they do buy out, they will likely pay significantly higher carrying charges to finance the buy-out and accommodate privatization. On the other hand, the coop owners will be free to sell their units on the open market for prices that dwarf their initial investment. The owners who will suffer are those who cannot afford the higher carrying fees but do not want to move out – some owners have been in their units for many decades and feel it is their home, or they may have disabilities and experience great difficulty with the process of selling and finding a new residence.  Still, unlike a renter, a coop owner who manages to hold onto their coop until a buyout will likely receive a major financial windfall – an incredibly significant return on their initial cash investment.

Links and resources

Regulation: law and reality

For prospective occupants

On buy-outs

Notes on New York Divorce Law and Mitchell-Lama Housing

Download: Notes on Divorce Law and Mitchell-Lama Housing [docx]. See also: Beginner’s Guide to Mitchell-Lama Housing in New York State

Some basic background research on the lack of information I found on equitable distribution of Mitchell-Lama housing in New York divorces, in case it’s useful.

Notes on Divorce Law and Mitchell-Lama Housing
-Determining and distributing value
-Potentially Relevant Case Law and its Application
—–Who has the right to the apartment?
—–What counts as “permanently vacating?”
—–When does a spouse forfeit their right to equitable distribution of the financial benefit?
-Cases

Notes on Divorce Law and Mitchell-Lama Housing

Determining and distributing value

The apparent value of a Mitchell-Lama unit does not tell the whole story.

A rental unit would be apparently without property value to be divided. A coop would have a readily determinable value: the redemption fee owed to the owner if the owner sold it back to housing company. That amount is calculated according to regulation and based on the (generally quite low) initial investment plus a portion of the overall amortization.

But the true value of a Mitchell-Lama unit may be much greater:

“A tenancy in a Mitchell-Lama development is of enormous value both because rent, being regulated, is far below rents for comparable available apartments, and because where the apartment is a cooperative, or to become a cooperative, the occupant of such apartment may have an opportunity for a sizeable capital gain should the building elect to disengage from the Mitchell-Lama program.” (MATTER OF THOMAS v. DHPD, 12 Misc. 3d 547 – NY: Supreme Court 2006 NY County)

If both spouses are listed on the lease/deed or if the unlisted spouse has been in residence and listed on the yearly financial reports for at least two years, then a couple may come to any agreement they like about who should have possession of their Mitchell-Lama residence because the remaining spouse has the right to succession after the leaving spouse “permanently vacates”.

However, what if the spouses disagree on who should leave or how the financial value of the residence should be accounted for the distribution of property? There is little guidance from the courts: There is no published case law about the treatment of Mitchell-Lama housing in the equitable distribution of property for a divorce.  It is even unclear whether a spouse who leaves before a divorce, who has forfeited his right to return, has also forfeited his right to a share of the financial benefit.

To some extent, however, Mitchell-Lama housing can be analogized to other forms of regulated housing such as rent-stabilization and rent-control. As in those situations, the leaving spouse gives up the security and cost-benefits of the regulation, and potentially the profit opportunity if the unit is privatized, and must return to the competitive and expensive housing free market where their likelihood of finding a comparable situation is far from guaranteed or, in the case of rent-controlled apartments, zero. There is some case law regarding other forms of regulated housing and divorce.

Potentially Relevant Case Law and its Application

Who has the right to the unit?

In two cases (Elkon v. Elkon 1969 and Klotz v Klotz 1989), the breadwinner spouse who earned a significant income had to cede the rent-controlled apartment to the homemaker spouse. Since the nature of Mitchell-Lama regulation, such that the income of both spouses combined must be below a certain level to qualify and retain eligibility, it is unlikely that it will be as clear as in those two cases that there is one spouse who really needs the benefit and one spouse who really does not. If there were such a disparity and the higher-earning spouse leaves, the couple/court would have to make sure that the lower-earning spouse is still earning enough (through whatever combination of alimony and employment) to continue to meet the minimum-income requirement for their unit.

What counts as “permanently vacating?”

There are two cases (Manolovici v. 136 E. 64th St. Assocs., 1987 and Weinstein v. Hohenstein 1986) to show that whether or not a spouse who moves out during/because of divorce but continued to pay for the rent of the apartment for his wife/kids depends on the specific legislation pertaining to that form of regulated housing.

According to Mitchell-Lama regulations, a tenant must maintain the Mitchell-Lama unit as their primary residence, not using any other address for any other purpose (such as voter registration or driver’s license) and spend at least 183 days out of the calendar year there (barring military deployment). [)3-2 (n)(4) and (n)(6)]

There are two contradictory cases (MATTER OF CUDAR v. O’Shea, 2010 and NSA FLATBUSH ASSOCS v. Mackie, 1995) about the question of whether moving out due to a court order counts as abandoning residency or not.

Mitchell-Lama regulations specify that the residency of a tenant (not listed on the deed/lease) is not interrupted by absence from the residence due to a court order unrelated to Mitchell-Lama regulations [3-02 (p)(5)(iii)]. That specification is not made for the person who is the named lessor or coop owner, but it may possibly be inferred.

When does a spouse forfeit their right to equitable distribution of the financial benefit?

There is one case (Chew v. Chew, 1992) that held that even where the wife left the rent stabilized home and had no tenancy rights, she would still be entitled to a share of a windfall privatization conversion if the husband bought the apartment for preferential rates and resold it for a profit within five years of the divorce. In that case, however, the building had already been privatized.

It is plausible that Mitchell-Lama spouses  who leave as a result of divorce may continue to have some rights to future economic benefits of the unit they have left, but there is no clear precedent.

Cases

Citation

Ratio

Housing Type

Summary

(Elkon v. Elkon 59 Misc.2d 725, 300 N.Y.S.2d 259 N.Y.Sup. 1969

and

Klotz v Klotz 150 A.D.2d 308, 541 N.Y.S.2d 806 N.Y.A.D.,1989)

Benefit assigned to less-monied spouse Rent-controlled apartment Where one spouse is the breadwinner  with incredibly significant income and earning potential and the other is a homemaker and stay at home parent, the rent-controlled apartment was awarded to the spouse receiving alimony

CUDAR v. O’Shea, 2009 NY Slip Op 51337 and MATTER OF CUDAR v. O’Shea, 78 AD 3d 1177 – NY: Appellate Div., 2nd Dept. 2010

contrast

NSA FLATBUSH ASSOCS v. Mackie, 166 Misc. 2d 446 – NY: City Court, Civil Court 1995

A spouse who left the home b/c of an order of protection may be considered to have permanently vacated Rent-controlled apartment Where the husband left the rent-controlled marital home because of an order of protection and subsequent arrest, and the judgment of divorce did not address the issue of who was to have possession of the apartment, the wife’s succession to sole tenancy was valid. 
A person who temporally leaves his home b/c of a court order (incarceration) may still be considered to be resident in that home during the time of incarceration. Section 8 In counting the whether the remaining family member had spent a sufficient number of months living with the lease-holder in the residence to qualify as a successor, the lease-holder is considered to have continued to be living in the residence during months that he spent incarceration, since he only left the residence because of a court order and did not change his primary residence.

Manolovici v. 136 E. 64th St. Assocs., 70 NY 2d 785 – NY: Court of Appeals 1987

contrast

Weinstein v. Hohenstein, 122 AD 2d 842 – NY: Appellate Div., 2nd Dept. 1986

A spouse who left the home during divorce proceedings but continued to pay towards the rent is still considered a tenant in a rent stabilized home Rent-stabilized 

 

The husband who had left the marital home maintained a sufficient connection to that rent stabilized apartment to be considered a “tenant in occupancy” during the divorce process by paying the rent for his wife and children, according to the definition of tenancy in rent stabilization laws. 
A spouse who left the home during divorce proceedings but continued to pay towards the rent (as alimony) is still considered a tenant in a rent stabilized home but not in a rent-controlled home. Rent-controlled The husband who had left the rent-controlled home but continued to pay the rental costs as alimony to his wife was not considered to have any tenancy status/rights., according to the definition of tenancy in rent-control law. 

Chew v. Chew, 157 Misc. 2d 322 – NY: Supreme Court 1992

A spouse who left the home as a result of the divorce may still be entitled to financial windfall of the conversion of a regulated apartment. Rent-stabilized conversion The financial windfall from the insider/preferential purchase of converted rent stabilized unit which had been the marital residence may be marital property even if only one spouse has been in possession of the apartment during the divorce. The court ruled that If the husband, who retained possession, chooses to buy the unit at a preferential price and then sell it at a profit w/in five years of the divorce decree, the wife is entitled to half the net profit due to her contributions to value through paying rent and caring for the home.

On Lilith: International Women’s Day, Iranian Women’s Rights

This year, International Women’s Day coincided with Purim. Thanks to that lucky confluence, I was able to spend Purim morning listening to modern Iranian women discuss the the struggle for women’s rights there, which are significantly improved from the time of Vashti and Esther but still have a long way to go.

Listening to Roya Hakakian, Solmaz Sharif, and Arash Abadpour, at the Iran 180  event, spurred some of my own reflections on what Jews struggling with Zionism, diaspora, and identity, might personally and culturally share with Iranians despite the tremendous political gulf between Israel and Iran.

Read the full post.

 

Dissolving an out-of-state civil union in New York

Update

Vermont updated their law to permit non-resident civil union dissolutions! This was fantastic news.

There are criteria and full instructions and forms online (Vermont non-resident Civil Union Dissolutions [PDF]):

1. Your marriage or civil union took place in Vermont.
2. There are no minor children of the marriage or union.
3. You and your spouse/partner live in a state or states that do not recognize your marriage/union for the purposes of divorce or dissolution. To see what states have passed legislation recognizing civil unions or same-sex marriage, click here.
4. You and your spouse/partner have lived separate and apart for at least six months and there is no likelihood that you will resume your relationship.
5. Neither you nor your spouse is the subject of an abuse prevention order in a proceeding involving the two of you.
6. You and your spouse/partner have shared financial information regarding your income, assets and debts and have voluntarily signed an agreement which resolves all issues related to the division of your property, assets and debts and the issue of alimony.

If your situation fits these criteria, this route is much much cheaper ($157.50 total!), simpler, and faster, than seeking dissolution in New York. It is meant to be done on your own, no lawyer required. I personally know of at least one New Yorker who has successfully dissolved their Vermont civil union by this means (despite initial questions over whether New Yorkers would be eligible). You can also start the process here.

Unfortunately, those with New Jersey Civil Unions, children, or ancillary issues, will still need to seek recourse at home. I am leaving this post up in case it is at least a useful start.

Original Post

Today I had to tell someone who came for help with the relatively straightforward (standardized, templates online, etc) paperwork for an uncontested divorce that it won’t do her any good, and she needs file a unique and non-standard motion to dissolve her New Jersey civil union.

It’s a stupid hole in American/New York law that states that don’t provide civil unions don’t provide a mechanism for dissolving them, and states that do provide them will grant civil unions to out-of-state couples but then refuse to dissolve them for lack of jurisdiction. The civil union prevents the members of the couple from remarrying and potentially leaves them vulnerable to legal obligations to or the legal power of a spouse they do not want. And all of this even while most of the United States won’t recognize the validity of their relationship at all.

Thanks to the work of Amy Schwartz, Geri Pomerantz, and the Empire Justice Center, who moved Dickerson v. Thompson, a precedent-setting case, through multiple trials in multiple courts over four years, it is now possible to dissolve an out of state civil union in New York. It requires an “action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”

There’s no template for it up on the NY State Courts website (yet?). I prepared one with the very kind consultation of Amy Schwartz – all shortcomings are mine alone – and though it has not yet ‘succeeded’ (or indeed been filed), I’m sharing it here in case it’s useful for anyone. No warranties are made, buyer beware, etc.

This action is a very simple version of what might be a more complex document if the couple involved needed the Court to divide assets or address issues of maintenance, child support, and child custody.  Since it was created for a couple with a Vermont civil union, it cites Vermont law. For a New Jersey civil union, one would have to cite the New Jersey law that addresses civil unions and their dissolution, which I believe is here.

The basic elements:

  • nature of the action – declaratory judgment action seeking an order dissolving the Vermont Civil Union
  • jurisdiction – naming the parties, reciting their residences, that New York State jurisdiction is proper under CPLR 3001 & the Supreme Court’s broad equity jurisdiction (cite Dickerson v. Thompson), and venue under 503/509
  • facts and law – Detail the creation of the out-of-state civil union, show that under the laws of the state in which the civil union was performed, the couple would have grounds to dissolve but for that state’s residency requirement, and assert that equity would be served by granting a judgment dissolving their civil union, permitting them to be free of a bond they no longer wish to be in, and to marry others.
  • request – Declaration that the union is dissolved

Verified Complaint For Declaratory Judgment and Equitable Relief

 

On Lilith: Modesty and Freedom

My last post on Lilith was a response to Rabbi Dov Linzer, a prominent figure in Open Orthodoxy, who recently published Lechery, Immodesty and the Talmud in the New York Times.

I find that (at least Jewish) discourse on modesty’s selective focus invisibly and artificially restricts that discourse to protect the status quo and preserve problematic inequalities between men and women that go much deeper than who wears what. Rabbi Linzer’s article, as welcome as it is as a response to fundamentalist Judaism, perpetuates that problem.

Full post here.

On Lilith: Muslim and Jewish Marriage Contracts in American Courts

This post explores how Muslims and Jews, two religious minorities in the United States, have sought to engage their religious marital law with essentially Christian-based American secular divorce law for personal and religious benefit.

“As someone whose interest in secular law grew out of my studies of Jewish law, I’ve always been especially fascinated by the ways in which the two systems of law interact. A recently published article, “How To Judge Shari’a Contracts: A Guide To Islamic Marriage Agreements In American Courts,” got me thinking about some of the parallels and common experiences between Jews and Muslims in interacting with secular American courts…”

Read the full post

New York State Child Support Calculator

NB This has not yet been updated to reflect the increase in default parental income from $136k to $141k.

(Download New York State Child Support Calculator [Excel file])

This spreadsheet allows you to enter the information about parents’ income, number of children, child care, health care,  and educational costs, and will return the default child support obligation for each parent, if that parent were the noncustodial parent.

Updated 2/2012 to reflect the increase of the default parental income cap from $130k to $136k.

Low-income exemptions are based on 2011 Federal Poverty Guidelines ($10,890) and NY Self-Support Reserve (135% of $10,980: $14,702).

By default, formula cells are locked to prevent accidental alterations. Click on Review->Unprotect Sheet. There is no password.

This is accurate to the best of my ability. However there may be errors and use it at your own risk. (If you do find an error, or have other feedback, please let me know!)

Creative Commons BY-SA 3.0 Tara Bognar

Criminalizing polygamists without persecuting polyamorists is hard

(This essay was originally written for my mentor, Diana Adams, and an alternate version is now on the Alternatives to Marriage Blog).

Subtitle: One of the things that’s wrong with Reference re: Section 293 of the Criminal Code of Canada

In 2009, after two failed prosecutions of leaders of British Columbia’s enclave of fundamentalist Mormons – on charges of child trafficking, transporting American girls to Canada in order to marry them to much older men – the Lieutenant Governor of B.C. asked the courts whether those leaders, and other adult men in the community, might be prosecuted simply for polygamy.

Section 293 of the Canadian Criminal Code provides for up to five years imprisonment for the parties to a polygamous relationship and for anyone who participates in or attends at the celebration of such a relationship. It has been on the books since 1890 and successfully enforced twice, in 1899 and in 1906.

Between its poor record and speculation at various levels that prohibiting polygamy might violate Canadian charter rights, such as freedom of religion, freedom of association, freedom of expression, and liberty and security of the person, asking the Court for a ruling on whether s293 is consistent with the Canadian Charter of Rights and Freedoms seems prudent.

The case caught the attention of Canada’s largely secular and dispersed polyamorous community. While the Canadian Polyamory Advocacy Association takes great pains to distinguish itself from the community in Bountiful, promoting equality and progressive values, they have long been critical of s293 for stigmatizing, and potentially criminalizing, polyamorous life choices. They intervened in the case and submitted extensive arguments against the constitutionality of s293.

For reasons explained at great length in his decision, and worthy of a critique all their own, B.C. Supreme Court Chief Justice Bauman found s293 constitutionally valid. Polygamy continues to be a crime.

However, many polyamorists found solace from his statement that “the offence is not directed at multi-party, unmarried relationships or common law cohabitation” [1037].   That solace is (or ought to be) accompanied by dismay, because he continues: “but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.”

OK: multi-party unmarried relationships and multi-party common law relationships

Not OK: multi-party marriages, regardless of the genders of the individuals involved.

Problem:  How do you tell the difference between a criminal multi-party marriage and a legal unmarried multi-party relationship when there is no such thing as multi-party marriage under Canadian law?

Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal sanction or recognition.

Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this apparently platonic, yet legally illegitimate, state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.” [1023].

Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who…celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.

Justice Bauman concedes that it seems absurd that everything turns on what might be single moment of “sanctioning,” but he considers it an appropriate level of absurdity for the Canadian legislature. He compares it to setting the blood alcohol limit for driving at .08 instead of .07; the distinction is apparently arbitrary, but “Parliament can draw such bright lines” [1039-1040]. Blood alcohol level is an objectively measurable thing; what is the bright line between sanctioned and not sanctioned?  Justice Bauman only offers us some synonyms: approve, encourage, and expressly permit [1034].

The implication is that unselfconsciously drifting into a polyamorous relationship is permitted, but holding a commitment ceremony (rite/ceremony) or signing a cohabitation contract (contract) would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals.

What if a polyamorous triad was willing to forego a public rite, and whatever emotional meaning it holds? And willing to forego a cohabitation contract, and whatever legal protections it might provide?

That might be all right as long as they do not actually express “consent” to their own relationship.  Sanction by consent implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.

Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising  to love and care for their polyamorous partners and accidentally ending up “married.” Meanwhile, the B.C. Supreme Court is a trial level court, and the ruling may well be appealed to the B.C. Court of Appeals and even the Supreme Court of Canada, who will hopefully make some more sense of it.

As long as the likelihood for imminent harm seems remote, I’ll admit to wishing that Justice Bauman had provided us some information about platonic polyamorous “divorce,” and how a repentant polyamorous “spouse” could end their “marriage” and be a good law abiding Canadian again.

For enjoyable incisive commentary, I highly recommend Tabatha Southey’s article in the Globe and Mail: “We have as many double standards on polygamy as Solomon had wives.”

To marry or not to marry: A reference for same sex couples in New York

[Download PDF]

New York now recognizes same sex marriage, an unambiguously positive legal development. That does not mean, however, that marriage is the clear choice for all committed same sex couples.

The Defense of Marriage Act continues to allow the federal and other state governments to not recognize same sex marriages, which means that many of the benefits available to married straight couples are not applicable to married same sex couples. Perversely, the drawbacks of marriage are equal if not greater. Additionally, many of the benefits that automatically accompany marriage can be obtained through other means. Given the limited recognition of same sex marriage, even married same sex couples may be advised to use those other means, which further mitigates the advantages of marriage. Finally, registered domestic partnership offers several of the benefits of marriage while being more easily dissolved.

Therefore, the decision of whether or not to marry may be less straightforward for same-sex than for heterosexual couples – even beyond the strong emotional reasons that some couples may bring to the question.

Benefits to a same sex couple residing in New York only available through marriage:

+ Health insurance through spouse’s employer (as long as the employer is not the federal government)
+ Right to hold property jointly as tenants of the entirety
+ Right to statutory regulated intestate inheritance if spouse dies without a will
+ Right to an inheritance from your spouse even if s/he tries to disinherit you (barring a prenuptial waiver)
+ Right to file joint NY state taxes and benefit from spousal deductions and exemptions
+ Right to inherit up to $1 million free of NY state taxes
+ Privilege not to testify against one’s spouse and inability to testify without spouse’s consent as to ‘confidential communications’ between spouses in NY state courts
+ Right to a default regime of court ordered equitable distribution of property in case of divorce (subject to broad but not unrestricted limitation via contract)
+ Assumption of paternity/maternity for a child born to your spouse (not necessarily enforceable out of state)
+ Right to maintain a wrongful death claim or an action for loss of consortium in NY state courts
+ Right to support from spouse, and shared liability for debts

Benefits to a same sex couple residing in NY available through marriage or domestic partnership:
+ Visitation in certain city facilities such as prisons and hospitals
+ Eligibility to qualify as a family member to be added by the New York City Housing Authority to an existing tenancy as a permanent resident, and to maintain occupancy in a rent-stabilized or rent-controlled apartment if it is your spouse who is on the lease and s/he dies
+ If one spouse is a New York City employee, the other spouse is entitled to health benefits and leave for bereavement or child care.

Benefits available to a same-sex couple residing in NY via other legal means:

+ May create an enforceable cohabitation agreement that sets out the terms for distribution of property in case the relationship ends
+ May appoint one another to make health care and financial decisions in case of incapacity
+ May make wills in one another’s favor
+ May adopt in order to acquire parental rights and obligations for one another’s children
+ May name each other as agents for disposition of body in case of death

Potential disadvantages of marriage:

- Dissolving a marriage is, at best, time consuming and costly
- If a couple moves away from a jurisdiction that recognizes same sex marriage, it may be extremely difficult to get a divorce at all
- Spouses are subject to court ordered division of property and orders of maintenance in case of divorce (subject to broad but not unrestricted limitation via contract).
- Personal liability for debts created by a spouse during the marriage
- Obligation to support spouse
- Impossibility of disinheriting spouse (subject to premarital waiver)

Potential future benefits of marriage currently available only to opposite sex couples:
+ Right to joint filing of federal taxes, including applicable spousal deductions/exemptions
+ Right to $5M portable federal estate tax exemption
+ Right to federal gift tax exemption
+ Right to unrestricted rollover of inherited IRA and 401K funds
+ Right to be insured under spouse’s health insurance
+ Right to coverage under spouse’s medicare, disability, and/or social security benefits
+ Right to inherit benefits after death or receive a portion of benefits after divorce, including social security, veterans, and military benefits.
+ Right to sponsor spouse for immigration and/or residency
+ Marriage and spousal rights will be recognized all over the country (and generally throughout the world)

Birth Orders in New York

[Download PDF]

(Background reading: What is a birth order?  An Overview)

Summary: New York does not issue pre-birth orders, but it does recognize out of state pre-birth orders. A post-birth order per se does not exist but using orders of maternal and paternal affiliation, it is possible to achieve the functional equivalent of a post-birth order, at least when the intended parents are also the genetic parents in a gestational surrogacy situation.

New York does not issue pre-birth orders, and New York Domestic Relations Law declares (at least commercial) surrogacy agreements to be contrary to public policy.

However, New York upheld a California “pre-birth order and judgment of paternity” (D.P. v. T.R., F-04079-10), based on federal and state law and the full faith and credit clause. The NY Magistrate held that the parentage decision of a California court was entitled to recognition in NY.

  • In that case, two gay men from New York used an egg donor and a surrogate (gestational surrogacy) in California, and got a pre-birth order from California that named both the biological father and his partner as the parents of the yet unborn child. When they broke up years later, the biological father sued the non-biological father for child support. The non-biological father claimed that NY public policy should bar him from being viewed as a legal parent based on the CA judgment, but the Support Magistrate, Rachel Parisi, disagreed.

Altruistic surrogacy agreements do not seem to contravene public policy, and it is not necessary to go through an adoption process after the birth to establish the parental rights of the intended parents.

In August 2011, New York issued a post-birth order of maternal filiation which declared the genetic mother of a child born of a gestational surrogate to be the child’s legal mother. Together, a matching set of orders of paternal filiation and maternal filiation should effectively function as a birth order.

T.V. (Anonymous) v New York State Dept. of Health (2011 NY Slip Op 06229, Decided on August 9, 2011, Appellate Division, Second Department)

In T.V., a married heterosexual couple engaged in an altruistic (non-commercial, no payment) surrogate contract:

  • The gestational surrogate was implanted with eggs of the genetic mother fertilized by the sperm of the genetic father, her husband.
  • The three parties involved – genetic parents and gestational surrogate, sought a pre-birth judgment of parentage, which was denied.
  • When the baby was born, the gestational surrogate was entered as the mother on the birth certificate, with no father listed.
  • After the birth, the gestational surrogate and her husband executed documents relinquishing any and all parental rights to the child.
  • Two weeks after the birth, the Supreme Court held a paternity hearing, taking both couples’ testimony, and issued an order of filiation that recognized the genetic father as the legal father.
  • The two couples then sought a maternal order of filiation to recognize the genetic mother as the legal mother. No maternal order of filiation had been issued or recognized in New York prior to that and the Supreme Court refused.
  • The couples appealed the Supreme Court decision on the basis that allowing a paternal genetic filiation order but not a maternal one violates the United States and NY constitutional equal protection clauses.
  • The Department of Health argued that the biological differences between men and women and/or the state’s interest in establishing accurate parentage justified the apparent violation.
  • DOH also argued that even an altruistic surrogate contract violates New York Domestic Relations Law 122 and that the couple’s request for a maternal order of filiation was contingent on a void and unenforceable contract.

Conclusion: The Court of Appeals found that the Supreme Court does have the authority to issue a maternal order of filiation, that discrimination between demands for maternal and paternal order of filiations after birth is not justified, and that the validity of the surrogate contract is immaterial to the question of the order of filiation, since the court is not being asked to enforce the contract.

Birth Orders: An Overview

[Download PDF]

What?

A birth order is essentially a judgment on the legal parentage of a child. If the apparent parents of a child are not the same as the intended parents, which is almost always the case when a child is born via a surrogacy arrangement, the parties involved can ask a judge to rule on who a child’s parents are and issue a “birth order” establishing the child’s legal parentage. It is not available in every jurisdiction.

When?

Some states will allow judges to issue pre-birth orders, and in some states the order is only available post-birth.

  • A pre-birth order will be filed with the county and the hospital, and the hospital will be required to immediately enter the legal parents on the birth certificate, rather than the apparent parents.
    • If a pre-birth order is possible, it is generally advised to begin the process for obtaining one as early in the pregnancy as the viability of the fetus is considered more likely than not – ie, end of the first trimester.
  • A post-birth order can be sent to the relevant authorities in order to obtain a new birth certificate that names the legal parents.
    • Even though the application for a post birth order can likely not be transmitted to the court before the birth of the child, the background work is extensive enough that is advisable to begin the legal paperwork well in advance of the birth.

Why?

Protection/peace of mind for intended and birth parents

  • If issued before birth, it may reassure everyone involved about the future parentage of the child.

Legal enforceability across multiple jurisdictions

  • Court orders carry greater weight than state statute, in terms of being enforced out of state, by virtue of the full faith and credit clause.

Simpler Alternative/supplement to Adoption or Second Parent Adoption

  • A birth order that names both intended parents ought to obviate the need for a second-parent adoption, since as a court declaration of parentage it should be entitled to full faith and credit everywhere.
  • In many jurisdictions, the process for getting a birth order is easier and cheaper than an adoption.

Single Parents

  • Ensure that only one legal parent is recognized regardless of the genetic/birth parents.

Who?

  • Some states require that, in order to issue a birth order rather than go through an adoption process, at least one of the intended parents be genetically related to the child.
  • Some states allow a birth order even without any genetic relationship.
  • Some states regulate surrogacy and only permit a birth order under certain, permitted surrogacy arrangements, which may require that the intended parents be a heterosexual married couple and that they obtain court pre-approval of the surrogacy agreement.
  • Some states do not permit anyone to seek a birth order.

How?

Although the process for obtaining a birth order, when it is possible to do so, is often less costly and less complicated than seeking an adoption or second parent adoption, it is still extremely important to seek legal counsel well in advance of the birth. Some states have strict time limits for the submission of applications and documents, and the processes vary dramatically from one state to another. In some states, the process is so burdensome or exclusionary that it does not make sense to seek a birth order even where it is legally/statutorily possible to do so.

Generally, all the parties involved – intended parents, genetic parents, gestational mother, and if applicable, her spouse, must submit collaborate and participate in the process. Some states require an appearance before the judge while some can be done entirely by correspondence.

(Related: Birth orders in New York State)

Child Support in Shared Custody Situations in New York

Download PDF

(NB: For a somewhat more up to date discussion on this, please see Attorney Neil Cahn’s July 18th, 2013 article, Parenting Time, Not Legal Custody, Determines Entitlement to Child Support. The gist is that courts should look to the number of overnights with each parent to find the custodial parent (so that parent’s won’t be disincentivized from sending their children to day time enrichment activities, and that where parenting time seems truly even, the less monied parent should be considered custodial for the purposes of child support).

Summary:

  1. Statute law: Under the NY CSSA, child support obligations are always paid from the noncustodial to the custodial parent.
    1. The CSSA does not establish a clear and fair way to determine child support obligations when custody is truly equally shared and there is no obvious custodial and non-custodial parent.
  2. Case law: New York courts have affirmed that the noncustodial/custodial framework must be applied even in shared custody cases, but have established two different and apparently conflicting methods for determining  how to designate the custodial and noncustodial parent:
    1. Bast (1998): When custody is truly equally shared, by default the higher income parent will be designated as the noncustodial parent for the purpose of determining child support obligations.
    2. Riemersa (2011): The court must find a noncustodial parent based on the reality of the children’s living situation. If custody seems otherwise equal, it can consider details such as which parent spends more waking hours with the children.

1: Statute law

Under the New York Child Support Standards Act, the noncustodial parent pays child support to the custodial parent – always. The base payment is calculated by a formula applied to the parents’ incomes, and on top of that the noncustodial parent will contribute to the custodial parent’s childcare expenses, as well as certain other expenses.

For example, if the custodial parent earns 75k while the noncustodial parent earns 25k, by default, the noncustodial parent would have to pay the custodial parent $4,250 per year. If the custodial parent pays $10,000 per year in child care, the noncustodial parent would have to send them an additional $2,500 per year.

That might make sense if the noncustodial parent has the child every other weekend plus two weeks in the summer. But what if the custody arrangement is split 60%/40%? Or even 51%/49%? In that case, the noncustodial parent is almost certainly paying child-related expenses, including childcare, out of pocket. Their childcare expenses alone may be nearly as high as the custodial parent’s. Under the default CSSA calculation, a poorer parent with 49% custody would end up being responsible for paying the entirety of her own childcare costs while also being obliged to contribute to the childcare costs of the richer parent with 51% custody.

Some other states deal with this apparent injustice by using a “proportional offset” method that factors the proportion of custodial time into the calculation of the child support obligation, but the CSSA offers no such solution. Thus, it has been up to the courts to find a solution. Despite the fact that it has now been over thirty years since the enactment of the CSSA, no clear answer has emerged.

2: Case Law

In 1998, the New York Court of Appeals in Bast v. Rossoff affirmed that the proportional offset method could not be applied in New York, and that the CSSA’s basic steps for calculating support apply: Even in an apparently shared custody arrangement, the court must somehow find a custodial parent in order to calculate the noncustodial parent’s default support obligation. The court may find that obligation unjust, in which case it must order a deviation, but it must justify the deviation according to the factors listed in Domestic Relations Law § 240[1-b][f].[1]

Bast did acknowledge that the court will only be able to identify which parent has more physical custody in “most,” as opposed to all, instances, and did not provide further guidance.

Two later cases rely on Bast to offer two different approaches to the question.

Baraby v. Baraby (1998, 3rd Department), decided only months after Bast, rules that in a case of shared custody, the best interests of the child suggest that the parent earning the greater pro rata share of the total child support obligation be deemed the noncustodial parent for the purpose of calculating a default child support order.[2]  (The 4th Department upheld Baraby and applied this method in Carlino v. Carlino, in 2000). 277 AD 2d 897 – NY: Appellate Div., 4th Dept. 2000

Riemersma v Riemersma(2011, 3rd Department), in contrast, implies that with enough ingenuity, it is possible to find the greater physical custody of one parent even in an apparently equally shared situation: it tabulated the parents’ custody times against the children’s sleeping times in order to find that the parent with more ‘awake’ hours is the custodial parent.[3] In an outcome apparently the opposite of what would be ordered under Baraby, it ordered the father, who had more ‘sleeping’ hours, to pay child support to the mother even though he earned significantly less income and cared for the children for seven days out of every fourteen.

 

 


[1] The financial resources of the parents and the child, the standard of living the child would have had if the marriage had not ended, nonmonetary contributions of the parents toward the child, extraordinary expenses incurred in exercising visitation and “any other factors the court determines are relevant.”

[2] “We interpret Bast as requiring application of the CSSA to such situations to assure that children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their pre separation standard of living in each household. In order to effectuate this goal, where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support regardless of the labels employed by the parties.”

[3] The parents worked opposing shifts, and each parent would care for the children while the other was working. The court decided that since the mother worked night shifts, and thus had the children while they were awake, and the father worked day shifts, and had the children while they were sleeping, the mother spent more time with the children and was the custodial parent, and the father would pay support to her despite her higher salary. (Riemersma v Riemersma, 2011 NY Slip Op 03702 [84 AD3d 1474])