All in the Family
Just when you thought you knew all about relationships, new laws—and attitudes—are changing the rules
Published in 2007 Oregon Super Lawyers magazine
By Polly Campbell on November 9, 2007
A lesbian couple in Multnomah County wins the legal right to list two “mothers” on the birth certificates of the children one of them bore via artificial insemination. A mix-up at a Portland fertility clinic has a man suing to find out if he has a child he doesn’t know about. Long-married couples who never dreamed of getting prenuptial agreements start considering postnuptials.
One thing about family law will never change: Relationships are the cornerstone of every case. But beyond that, big changes are in the works in this most intimate of legal arenas. New state laws, cutting-edge technologies and cultural shifts are transforming how the courts handle relationships and how families themselves are defined.
One of the biggest changes is the new Oregon Family Fairness Act, which gives same-sex couples who register their domestic partnerships the same rights as married people when it comes to hospital visitations, medical care, insurance, estate and certain other benefits, says Portland’s Mark Johnson, with Johnson Renshaw & Lechman-Su. They can sue for wrongful death should one partner die in an accident; and if a relationship ends, alimony can be awarded.
“Each of the rights and obligations of marriage should follow along with registering a domestic partnership, but institutionally, the law doesn’t have the same meaning as marriage to some people,” says Johnson, 48, who helped draft the law.
“I know what the Legislature meant to do, but what I don’t know is what will happen when a court has to interpret it. On some level, I am afraid that we’re going to see case after case where people are going to challenge the meaning of a domestic partnership in specific circumstances.”
In the meantime, Johnson and his firm are collaborating with the nonprofit Basic Rights Oregon to challenge the marriage laws in Oregon with a bundle of cases.
In one, a lesbian couple with two children produced through artificial insemination—using donor sperm—sued to have both women’s names included on the children’s birth certificates. Because the women are unmarried (and unable to marry under Oregon law), only the woman who gave birth was listed as a parent. The other woman was not considered a legal guardian.
“We argued that the state should put her name on the birth certificate as the [other] mother without her needing to file for adoption.”
In July, a Multnomah County trial court judge agreed, saying the state cannot deny privileges to one group of citizens that it gives to another.
“We are very pleased that the judge recognized both the reality of same-sex parents’ lives and the discrimination practiced by the state in giving automatic parentage to some children and not to others,” Johnson said after the ruling.
In the future, Johnson hopes such inequities will be resolved by the Oregon Family Fairness Act.
“It’s not perfect, but it’s a big step in giving legal protection to a lot of people and stability to a lot of families.”
Paternity and marriage are the central issues in an unusual case involving a major mix-up at an Oregon Health & Science University fertility clinic.
Personal injury and medical malpractice attorney Jane Paulson, of Portland-based Paulson Coletti Trial Attorneys, represents a man whose sperm sample—intended to impregnate his fiancée—was inadvertently implanted into another woman.
Paulson’s client sued to find out whether a child was born. “Our guy just wants to find out if he is the father of a child out there,” Paulson says. “It weighs very heavily on him.”
But he may not get any relief. Multnomah County Circuit Judge Henry Kantor sent a letter to the parties in April indicating he would rule against Paulson’s client—but has yet to make his opinion official. And until that happens, the second case—a $2 million lawsuit against the hospital for emotional distress—is on hold.
“It comes down to the question of marriage,” says Paulson, 42. “Because my client is not married, according to the court, it seems he does not have the rights afforded a married couple. Instead, he is viewed as a donor. And Oregon and a lot of states have statutes that say [the] donor of sperm has no rights to the child.”
There have been a few other cases nationally that deal with fertility issues and questions regarding paternity rights, Paulson says, but these types of disputes and the public admission of such a colossal screw-up are rare.
“I do believe it happens more than anyone knows and more than anyone hears about,” Paulson says.
defending the children
Children’s rights are the central focus of Child Centered Solutions, a nonprofit foundation established in 2005 by family law attorney Jody Stahancyk and her partners at Stahancyk, Kent, Johnson & Hook to give a voice to those often overlooked during a divorce—the children.
Supported by private donations and operated by a board of directors led by Stahancyk—though the organization is separate from her legal practice—the program provides pro bono attorneys for children in high-conflict divorce cases when the parents have limited means or no representation.
Judges have long appointed attorneys to represent children in volatile divorce cases, but Child Centered Solutions is the first firm to focus solely on kids as clients, says executive director Leslie Abraham. Since the program began taking clients in October 2006, attorneys have been appointed for more than 35 children in Multnomah County. Another attorney is contracted part time in Columbia County.
The foundation also offers classes to educate parents, social workers, attorneys and judges about the issues that affect children.
“This isn’t the stuff you learn in law school,” says Stahancyk, 59.
Kids have unique needs, she says, and they have the right to tell their own stories without being forced to pick a side.
“You never ask a child where they want to be; instead, you talk about how things are going and listen and determine from what that child says what needs to happen,” Stahancyk says.
Take the case of 11-year-old Charlie. His divorcing parents were battling over where he would go to school. The father wanted him to stay in his current school, while the mom was adamant that he move. Nobody asked the child what he wanted until the court-appointed attorneys from Child Centered Solutions became involved.
The advocates listened to the child, called on teachers and negotiated with the parents. The outcome? The boy got to stay in his school, but was able to spend plenty of time with both of his parents—the two things he wanted.
“The parents usually want to do the right thing, but they are so embroiled in anger, they can’t see past it,” Stahancyk says. “We are finding a way for a child to say that he wants to be with one parent that is not disrespectful to the other.”
Over the last decade, the practice of family law has shifted dramatically toward mediation, says Eric Larson of Gevurtz Menashe Larson & Howe in Portland.
“Good lawyers now start involving good mediators and judgments earlier,” says Larson, 60. “It’s just better to have a referee to settle matters rather than slugging it out for eight months.”
But crowded dockets mean it can take months to resolve even preliminary issues. Enter reference judges—retired judges or lawyers hired by lawyers to provide immediate rulings on certain aspects of a case.
“It’s kind of a cavalier way to say it, but you are essentially renting a judge,” Larson says. “You can get in to [see] a reference judge in hours and get preliminary matters decided in a day as opposed to two or three days. It’s the wave of the future.”
Postnuptial agreements have also begun to play a bigger role in Larson’s practice—though they are still relatively rare.
Most people are familiar with prenuptial contracts. But now, some couples seek protection midstream in a marriage, long after the vows are taken, and often after property is purchased and children are born.
“They [postnuptials] are being used to protect property and family members and really take the risk and doubt of the marriage out,” Larson says. “If the wife inherits a bunch of money from her grandmother and that grandmother then wanted the money to be passed on to the children, it’s that mother’s duty to protect those wishes.”
Or if the marriage has hit a few bumps along the way, a couple might consider postnuptials. “They didn’t talk about the prenuptial, and now things are not as smooth as they were at first,” Larson says. “To protect the kids, people will do them.”
But the legality of postnuptial agreements is still a bit of a gray area. In a 2005 ruling, the state Supreme Court held that the postnuptial agreement in one case was not enforceable. That particular case involved a “thinly veiled settlement agreement” drawn up when the couple intended to divorce, Larson says. Instead, the parties remained married for another 10 years and their financial situation improved dramatically. When the couple did finally divorce, the husband invoked the terms of that original postnuptial, under which he stood to gain a financial windfall.
“The proverbial bottom line still is that the result needs to be fair and just,” Larson says. “Postnuptial agreements are valid in Oregon, but it was invalid under these conditions in this case.”
Under some conditions, Larson believes postnuptial agreements can be a form of coercion—to keep people in a marriage in order to avoid losing major assets.
But they can also be beneficial.
“Postnuptials can be a way for parties not to be stampeded to a divorce,” says Stahancyk. “By using postnuptial agreements, we are able to give families an opportunity to resolve their fear of financial loss while trying to stay together for their children.”
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