Hey, I was wondering if anyone had any input on legal parenty stuff in the states. My wife and I are not getting a domestic partnership yet, nor are we doing adoption yet, because we are low income and it would affect our ability to get free insurance for the kids and it would lower our tax returns greatly. We do want to make sure we have some protection though--what we are thinking is that we will each write a will saying that the kids we birthed would go to each other, and also each fill out a power of attorney for each kid (so that if something happens while the birth mom is away the other of us can make medical decisions). Does anyone know about the legality of this? I think it will be good for now, but I am new to this legal mumbo-jumbo. We are hoping we can find a simple will form and also power of attorney to print off and fill out for free, and then get them notarized (bc that's just like 10$ a copy, and makes them legal--that's what we did with our donor agreement).
Wills, Power of Attorney, and alla that Legal Mumbo-Jumbo
The problem with just writing a will naming each other as guardians is that judges are not required to treat that as binding - it's a preference, but the judge will act in the best interests of the kids. Depending on where you live, that could just about guarantee the children stay with your partner, or it could just about guarantee the opposite.
The power of attorney thing is definitely a good idea, to make sure that either of you can seek medical care for the kids in an emergency.
In terms of notarization - notarization doesn't give a document any particular force. It just says that the notary agrees that it was really you who signed it.
I think you guys would be well-advised to talk to a lawyer. Are there any legal advocacy groups for LGBT people in your state? Could you call up the bar association and ask if there's someone who could do a consultation for you? A lot of lawyers will do consults for free or really cheap, and they'd be able to advise you on what would be best, what it would cost, and how you might get help paying for it.
NOLO Press has some good books and guides to do your own legal paperwork. You would need to decide what kind of power of attorney you need. We have some for health care so my wife and I can make health care decisions for each other. It is not a general power of attorney or a financial one. You could also write up a parenting agreement. There is more info on the NOLO site. Groups like NCLR and Lambda Legal often have workshops or panel discussions you can attend to learn more about your legal options.
Every state is slightly different. We live in Wisconsin and worked with these folks:
We did separate documents for financial power of attorney & health power of attorney, as well as wills. That provides some protection but is certainly not comprehensive, and it's much trickier to secure legal recognition of parental status if you're the "non-gestational" mom. We did something called "intended parentage" to create legal recognition for my partner, basically a court order saying that she is the parent of our child. I don't think you're allowed to do that in Wisconsin anymore, however, though there might be similar processes in other states.
Another question I have now that I'm looking into this more: Do I need to do a separate will and power of attorney for the baby before she is born (using unborn child instead of her name?) and then after she is born write new ones using her name? We've already named her, but it is not legal yet as it isn't on a birth certificate. I think it would be good to have these documents before I give birth in case (goddess forbid) something happen to me during childbirth.
Just a couple thoughts- I don't know the specifics of your state laws, but when DD was born we were both super broke grad students. We found an attorney through our state's bar association volunteer lawyer program who did our second parent adoption for us pro bono. We were worried that having two legal parents would push her over the limit for state health care, but it didn't, in part because the income limit rises with your family size. One other thing to consider, if you're ever planning on leaving OR- some states will not allow you to do second parent adoptions, so if you're on career tracks that may take you elsewhere, you might want to explore options for doing this stuff now. We both went on the academic market and ended up in a red state with no second parent adoptions, so I'm really glad that we took advantage of being in a more liberal state while we could.
Also check out local law schools and see if any of them offer an LGBT law clinic- that may be a way to get free advice. Good luck!
Thank you for your input! I am going to look around and see if there is any sort of place we can get free legal advice. Leaving Oregon, while not impossible, is unlikely for us. At least, this is home-base for us now. If we live somewhere else for a bit, we still envision returning to Oregon. And our kids have moved around plenty already so while they are still at home (the older two) we are not going anywhere. My wife was married once before, but that was in California. It did effect her ability to get financial help, high tax return, food stamps, and health insurance for the kids. I would like to know for sure if this would be the case for us, however. Domestic Partnerships and Second-Parent Adoptions are things we were thinking we would hold off on for this reason until we are more financial stable, that is probably at least a few years away. For the same reason, baby is only getting my last name on the birth certificate, but we are planning on changing that in the future as well, and in the meantime going by both of our last names anyhow.
Our second parent adoptions will cost around 2000 (and that includes ALL estate planning as well)...and we will get almost all of it back with the adoption tax credit (which goes away after 2013). So please consider, looking into this...and remember that "beneficiary" trumps will. So make sure anything and everything you have names appropriate beneficiaries for inheritance (house, bank accounts, life insurance, IRA...anything where you can have paperwork indicating beneficiary).