The results of the 2024 election are shocking, disturbing, and deeply saddening. We grieve the hope we felt and the future we thought was on the horizon.
We are also heartbroken at the number of inquiries our firm has received since the election and the fear we hear in people’s questions. We will continue to do everything we can to protect our clients and their families, no matter what the law says and who has been elected. Our firm has been blessed and honored to serve the LGBTQ+ community in Wisconsin for over 25 years, i.e., pre- and post-marriage equality. I, personally, have been practicing in this area of law since I graduated from law school in 2005 and then-Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court matched me with The Law Center because she knew I wanted to work for LGBTQ+ families. We will continue to be your fierce and loyal advocates. We understand how to be creative and appropriately paranoid with our legal work (think: redundancies, safety nets, and layers of protection in different legal forms), and we strive to do it in a way that is compassionate and streamlined.
Because of the volume of inquiries we have received, we’ve organized group Zoom meetings and put together the general recommendation below. I have one caveat first, though, because I am also a devout Yoga student and teacher: breathe, deeply, slowly, in through the nose, out through the mouth, do that 10 times before continuing to read, just close your eyes and breathe first.
Now, try to imagine slowly coming out of your fight-or-flight response. It is valid. You are not over-reacting as some are saying. I guarantee you those people don’t have the information they need to form that opinion. But still, try to rid your system of the cortisol. Your family needs you healthy and crystal clear-minded. And understand this: by doing what is described below, you can achieve strong, meaningful protections against whatever may come, and by doing that, you can maybe relax just a bit and focus on your family and your daily life, instead of what is on the news. I hope we can give you that peace of mind.
First, about civil marriage:
- If you are not civilly married, consider whether you should. If marriage equality is overturned, you may not be able to marry going forward, but marriages already entered into might continue to be recognized.
- Regarding the likelihood of marriage equality being overturned, before Dobbs, I would have said the likelihood is low that our Supreme Court would overturn its own precedent, much less to take away a fundamental right versus extend one. Now, sadly, I do fear that it could happen.
- However, if the worst were to happen, we would see it coming. It is not imminent. It would take a while. A case would need to move up through the appellate courts to the U.S. Supreme Court. Oral arguments would be held, briefs would be filed. There would be news coverage, just like with Then, even if the Supreme Court did overturn Obergefell, it would take time for litigation in Wisconsin to determine the status of our old marriage ban amendment, similar to what we saw happen with Dobbs and Wisconsin’s “zombie” abortion ban from the 19thcentury. While all of that was happening, there would be a lot we could do to protect your relationship, children, and family unit even without civil marriage. Again, we have a lot of experience in this area of law before marriage equality. It is a horrific scenario to contemplate, but there is still a lot we could do on the ground to protect your family.
Our recommendation (i.e., our ideal combination of protections):
- If you have children, obtain a court order in your state of residence to confirm the parental rights of the non-gestational parent.
- A birth certificate is not enough. It never has been, sadly. Every major LGBTQ+ non-profit has recommended court orders for years, even after marriage equality.
- We now recommend confirmatory adoptions in most cases versus parentage orders.
- Parentage orders are still recommended for children born through surrogacy, and old parentage orders in non-surrogacy cases are still strong, full and final court orders.
- Get a thorough life and estate plan in place with an attorney experienced in LGBTQ+ matters.
- If you are a transgender or non-binary individual, update your identification documents now. Get a passport now, even if you don’t plan to travel internationally. Do your name change and gender marker correction right away.
Confirmatory adoption:
- In Wisconsin, a confirmatory adoption is technically a “stepparent” adoption, meaning the petitioner is adopting the child of their spouse. It is confirmatory to us because we understand you are adopting your own child, not your “stepchild.” We are just confirming and “freezing” your parental rights under the law with a court order.
- Unfortunately, Wisconsin law does not allow “second-parent” adoption, meaning adopting the child of your unmarried partner.
- The confirmatory adoption process involves filing a petition with a court and having a brief hearing. Your attorney should handle all of that for you.
- There is one part of the process that you must handle yourself: going through a so-called “stepparent screening” with a Wisconsin adoption agency, which is required in all such adoptions under Wisconsin law. The process is offensive and invasive, but it is not as bad as you might think, if you choose a good, supportive agency. We can provide referrals upon request. We need the screening to be complete before we file the petition for adoption.
- Known vs. unknown sperm donors
- If you used known donor sperm, there is one additional step in the adoption. We must terminate any parental rights the sperm donor may have under Wisconsin law.
- If you used unknown donor sperm from a sperm bank, we do not have to do anything with regard to the donor.
- Transgender parents
- If a child’s non-gestational parent is transgender, we may still recommend a confirmatory adoption even though your marriage is a different-sex marriage (just in case your marriage is ever viewed as a same-sex marriage).
Life and estate planning:
- Life and estate planning is not, and should not be, just quick documents.
- It is understanding the rights you give, and are given, in those documents.
- It is also coordinating the documents with your parentage/adoption order, asset titles, and beneficiary designations.
- It should cover all financial issues, all children, relationship protection, health care, animals, genetic material, etc.
- Make sure your home and other large assets are titled appropriately, e., joint if they should be joint. If marriage equality is overturned, real estate transactions between same-sex spouses and partners would become complicated and costly again.
- If you wish to get life and estate planning documents in place right way DIY, you can get state standardized forms online through the Wisconsin Department of Health Services and the Wisconsin State Law Library. We recommend these state-specific forms over any unindividualized commercial templates:
Polyamorous families:
- Consider civil marriage for two of your partners.
- Complete a thorough life and estate plan for each partner with an attorney experienced in poly issues. And see above regarding real estate transactions; the same recommendation applies.
- Complete a confirmatory adoption for a second legal parent, consider obtaining a guardianship for any non-legal parent, and then execute a Co-Parenting Agreement amongst all the parents (along with a few very specific Parental Powers of Attorney and Nominations of Guardian). Unfortunately, Wisconsin law does not recognize more than two legal parents.
Steps:
If you wish to retain us to help with any of the above, the next steps are as follows:
- Email Emily and Molly and let us know if you want to proceed.
- Read and sign our Representation Agreement, which defines how we will represent you and how we will charge you for our work. We mostly bill hourly.
- Pay the advance requested (typically the amount estimated for our attorney fees). We are also open to payment plans in this area of law. We don’t want any family to not complete these protections because of money. We are flexible. Talk to us if this is an issue for your family.
- Set you up in Clio, our case management software app.
- Complete a questionnaire for us, that will give us the information we need to prepare your case.
- If you are pursuing an adoption, choose an adoption agency to complete your so-called “stepparent screening” and keep that process moving forward.
- We take it from there and compartmentalize the process for you. Just answer our emails and calls.
There are more details about these topics on our website, here:
We hope this handout is helpful. Your family depends on you. You can depend on us.
DISCLAIMER FROM THE LAW CENTER, S.C.:
The posting and reading of this handout does not establish an attorney-client relationship with Attorney Emily Dudak Leiter, or any of our attorneys, nor does it constitute legal advice to the reader or the public. The law constantly changes and facts vary widely. Before relying on any general legal information contained herein, please consult legal counsel as to your situation. You can reach us at 608-821-8200 or www.lawcenterwisconsin.com.
The post PROTECTING LGBTQ+ FAMILIES IN WISCONSIN AFTER THE 2024 ELECTION first appeared on The Law Center, S.C..