Nancy Polikoff

Lambda Legal gets big win for children of disabled parent...but case shows the risk of parentage orders

Filed By Nancy Polikoff | April 26, 2009 1:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: children of gay parents, lambda legal, parentage, social security

Lambda Legal announced this week that the Social Security Administration has agreed to grant child benefits to the two children of a father receiving social security disability benefits. The issue concerned recognition of the parent-child relationship based on two California parentage orders declaring Gary Day the father of his two children. Day now lives in Florida.

SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.

Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.

Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.

This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.

Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.

Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.

This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.

Cross posted from Beyond Straight and Gay Marriage.

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Ad in the meantime, the Rhiannon O'Donnabhain case finished closing arguments 18 months ago, with no ruling in sight.

How many years must we wait for rulings, or decisions? What legal remedies are there for decisions just not being made?

It's outrageous, but Rhiannon has terrific lawyers at GLAD and if there is anything that can be done they will do it. It is very difficult to get a higher court to order a lower court to issue a ruling...and there is the risk that by asking it will make the judge angry enough to rule against the party asking.