2nd parent... guardian? *update* GUARDIANSHIP GRANTED!! :) - Mothering Forums
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Queer Parenting > 2nd parent... guardian? *update* GUARDIANSHIP GRANTED!! :)
justrose13's Avatar justrose13 12:50 PM 05-18-2011
has anyone ever successfully accomplish a "second parent" guardianship? I know many people get 2nd parent adoptions but they are outlawed (for homo and hetero alike) so we'd like to attempt a guardianship to at least grant DP some basic rights and get the kiddo on her insurance. we have a court date coming up and the guardian ad litem advised we find a similar case that he can use as precedence.

any info on guardianships is appreciated! orngbiggrin.gif

maryeliz's Avatar maryeliz 01:48 PM 05-18-2011

Wehrli, my understanding is that problem with guardianship is that it can only be exercised if the legally recognized parent/parents is dead or incapacitated.  Appointing your partner as guardian should be simple and inexpensive (my partner and I did it as part of an estate planning package); however, because the guardian is your backup, she does not have rights to act for the child while you are still able to do so.  In my case, I appointed my partner as guardian of our child for the period between when the baby was born and when our adoption went through.  There were a couple hours after the birth when I was unconscious and during that period my partner could have made medical decision for our baby; however, once I was functioning, I was the only person who could sign medical forms or give consent for procedure for our daughter until the adoption went through.

 

In terms of insurance, we were told that if I had been on my partner's insurance and then had the baby, the baby could be covered.  However, since I was on a different policy, baby could only be covered after the adoption we through and guardianship had no bearing because, once again, I was still in the picture.

 

The most creative (and disruptive and expensive) solution I've heard to the no second parent adoption problem is going to New Jersey to have the baby.  Apparently a child born there can be adopted there without residency requirements.

 

 


justrose13's Avatar justrose13 05:45 AM 05-19-2011
maryeliz, thank you for your response and ideas. we wouldn't have a problem naming DP as a guardian in the way you suggest... here there is a difference in guardianship while I'm alive and well and guardianship over him if something were to happen. I'm not exactly sure the details but doing it the first way is what's necessary for DP to have him on insurance and be able to make any decisions concerning him. thats interesting about NJ...

thanks again for the info!
maryeliz's Avatar maryeliz 08:32 AM 05-19-2011

Is it a Standby Guardianship that you are looking to do?

 

http://www.childwelfare.gov/systemwide/laws_policies/statutes/guardianship.cfm

 

http://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.processSearch

 

I'm sorry I don't know anything about specific cases.  It does look like it would have possibilities if you found a sympathetic judge.


seraf's Avatar seraf 08:53 AM 05-19-2011

I would be interested to hear more about New Jersey....  Would it work if someone had the baby in a hotel?


justrose13's Avatar justrose13 09:32 AM 05-19-2011
Quote:
Originally Posted by maryeliz View Post

Is it a Standby Guardianship that you are looking to do?

 

http://www.childwelfare.gov/systemwide/laws_policies/statutes/guardianship.cfm

 

http://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.processSearch

 

I'm sorry I don't know anything about specific cases.  It does look like it would have possibilities if you found a sympathetic judge.


"Establishing a Standby Guardian:
Many States allow a parent or legal guardian to nominate a standby guardian regardless of the nominator's health status.
However, six States and the District of Columbia preclude such nomination unless the parent is chronically ill or has been diagnosed with a terminal illness.2 In Colorado and Wisconsin, the parent must be at significant risk of death or incapacity within 2 years"


we live in WI... greensad.gif
maryeliz's Avatar maryeliz 12:01 PM 05-19-2011

Well that sucks.  Standby Guardianship is the only type of guardianship that I have heard of that sort of resembles a second parent adoption.  What I've seen parents from WI doing are legal parenting agreements-although they have obvious problems.  Have you been in touch with any queer family lawyers?  It's all very disheartening..

 

What I know about the New Jersey option comes directly from the "I read it on the internet" school of expertise.  I read the blog of a woman who was planning to go to NJ to have her baby (can't remember the name of the blog).  Her reasoning was that NJ is very liberal with second parent adoptions and apparently allows children born in the state to be adopted there even if child and family do not live in the state.  I would think that the place where the child is born would only matter in terms of getting the birth certificate-you would have to figure out how you get a birth certificate for an out of hospital birth in NJ-but again this is just stuff I read on the internet so I don't even know if this person was interpreting NJ adoption laws correctly. 


justrose13's Avatar justrose13 01:11 PM 05-19-2011
yeah... been in touch with lawyers... even one that's been successful (birth mother terminates parental rights so we could petition for a joint adoption, which we are allowed). but that lawyer is out of town (2 hours away) and is quite expensive in the first place. greensad.gif we'd consider moving but can't for another two years and we don't want to wait until DS is three for DP to get legal rights... i guess we are just going to pay for it... probably forever. i'm so discouraged right now... our newly apppointed governer is also trying to take away our domestic partnership registry. boo.

seraf, as for as nj goes i read something just today.... seemed credible but i can't find it again for the life of me. sorry. sounded like if the child was born in nj, the adoption could happen then you'd have to request a birth cert from your home state or something... i wish i could find it again, i'll keep trying.
indigoscot's Avatar indigoscot 07:18 AM 05-20-2011

i don't have any advice or help but i wanted to send some hugs your way wehrli.  our state does allow second parent adoptions so we are extremely lucky but those adoptions really only work in a couple of counties.  we just happen to live in one of the counties.  we are also legally civil partnershipped in scotland and there they recognise our children as ours without any further paperwork.

 

i hope you find something that works legally for your family.  are you still planning to be a sahm?  in that case does silas have no health insurance right now?  i forget exactly how you were planning things out after his birth.

 

g

 


justrose13's Avatar justrose13 10:48 AM 05-20-2011
Quote:
Originally Posted by indigoscot View Post

i don't have any advice or help but i wanted to send some hugs your way wehrli.  our state does allow second parent adoptions so we are extremely lucky but those adoptions really only work in a couple of counties.  we just happen to live in one of the counties.  we are also legally civil partnershipped in scotland and there they recognise our children as ours without any further paperwork.

 

i hope you find something that works legally for your family.  are you still planning to be a sahm?  in that case does silas have no health insurance right now?  i forget exactly how you were planning things out after his birth.

 

g

 


yes, still planning on being a SAHM... 4 more weeks 'til my FMLA is up. I feel so hesitant to quit but I can't fathom going back... not after thinking for the last year that I'd be home with our LO. we probably couldn't even find childcare at this point, anyway. we will not be without healthcare, as a "single" parent family we qualify for cheap or free healthcare. it's not bad but I'm sure our preffered providers aren't covered. plus Governor Scott Walker wants to cancel the program in his budget cuts so it feels very unreliable. we have considered COBRA to continue my healthcare insurance but I don't think we could afford the non-discounted premium for the family plan. I pay $150 bi-weekly with the company's contribution, I can't imagine how much it costs full price. redface.gif

thanks for the support everyone... it means so much to me! smile.gif
spedteacher30's Avatar spedteacher30 12:14 PM 05-22-2011

If you are a SAHM in a state that does not recognize your partner as a parent, you may be able to qualify your son for medicaid. Our son was on medicaid until he was 15 months old and I went back to work. I had insurance through the university as a fulltime student at that point, but he was on medicaid.


prettyisa's Avatar prettyisa 01:18 PM 05-22-2011
Wehrli--how deep in WI are you? Is there any way you could set up a temporary second home just across the border down here and get residency? Illinois is so much better about all of this stuff. According to the state's residency policy you just have to establish a home here to count--not live in it full time. And I bet if you got IL driver's licenses, etc, you wouldn't even have to wait the year. Walker is such a nutjob, though, I don't know if IL 2nd parent adoptions would even count once you crossed the border back again.

http://www.revenue.state.il.us/Individuals/StudentDefinitions.htm

I'm so sorry you have to worry about all of this. It's definitely the reason we won't consider moving to Wisconsin, even though we love Milwaukee. The laws need to change. Good luck!
seraf's Avatar seraf 03:22 PM 05-22-2011
I think once an adoption is finalized anywhere it's recognized in any state. I know kids adopted in Cali have both parents recognized in Ohio.
justrose13's Avatar justrose13 03:26 PM 05-22-2011
hmmm... I'm not sure if there's a way to establish residency... our mortgage requires us to live hear for fine years before we can move or sell. id have to check into whether or not we can "reside" anywhere else according to the bank. I'd have to find out if we both would have to be residents, as well. then we'd have to find a place to "move" that doesnt cost any$. it's highly unlikely, however, I absolutely appreciate the thoughts... I'm gonna check that link and do some brainstorming, maybe we can find some "loophole". smile.gif
alphahen's Avatar alphahen 12:32 PM 05-25-2011

Wehrli - I live in another one of those restrictive, no second parent adoption, limited option states.  Going to see a lawyer today (who specializes in adoption and ART situations) to discuss our options and I am glad I saw this thread beforehand.  It is helping me quite a bit with the questions I will ask.  Will report back to the group with anything I learn.


justrose13's Avatar justrose13 11:20 AM 05-26-2011
alphahen, do let me know!

afm, we just hired a lawer out of Madison... we may go broke over obtaining co-guardianship but we will be setting a precedence hopefully making it much easier for anyone to apply after us! (that is, of course, we win) I'll keep y'all posted.
maryeliz's Avatar maryeliz 09:45 AM 05-27-2011

In re Richard P., 2010 W. Va. LEXIS 87 (W. Va., July 9, 2010)

[court declined to expand WV's Standby Guardian Act, but said that the legal mom could give authority to her "companion" through power of attorney and also use WVa Caregiver Consent Act to confer authority)

 

Guardianship of I.H., Docket: Ken-03-172 , SUPREME JUDICIAL COURT OF MAINE, 2003 ME 130; 834 A.2d 922; 2003 Me. LEXIS 145, September 25, 2003, Submitted on Briefs , November 4, 2003, Decided

[seemed to say that the judge though that co-guardianship was permissible, but the lawyers had not stated their claim correctly, sent to probate court for final decision].

 

I'm also really interested to hear what the lawyers have to say.  Above are two cases related to co-guardianship that I found on Lexis/Nexis.


justrose13's Avatar justrose13 12:20 PM 05-27-2011
maryeliz, thanks so much for the links!! we have a phone consult with the lawyers tonight... this is perfect. smile.gif
seraf's Avatar seraf 05:54 AM 05-29-2011

How did your phone consult go, wehril?  Are you hopeful?


justrose13's Avatar justrose13 11:00 AM 05-30-2011
it went fairly well... we (the lawyers and us) are all hopeful and optimistic but they said to be prepared to have to appeal. we will be "making law" so we won't count on it being easy.

thanks for asking! smile.gif
alphahen's Avatar alphahen 10:46 AM 05-31-2011

Wehrli - Our meeting went fairly well too.  We live in a "no second parent adoption state".  However, there is precedence for joint custody/guardianship so she feels very confident about being able to get us that (which wouldn't be that bad in and of itself).  However, our situation is unique in that DW is donating her eggs and I will be carrying which is an "un-tested" situation in our state. We will likely pursue the precedent-setting option of petitioning for an "Order of Parentage" based on our status with one of us as genetic mother and the other as carrying.  The order apparently would have stronger legal standing should something happen to one of us though our day-to-day rights (e.g., medical decisions, insurance, day-care, etc.) will all be covered by the guardianship.

 

Kudos to you both for being willing to push the envelope!  I feel ya on the forever paying for this part of it.  It is going to hurt but we feel like it is worth it.  Some lawyers are brave and willing to offer a break on the cost for precedent-setting situations in an effort to do the right thing and work to change unfair laws.  I am wondering if that would be an option - either with your existing lawyer or another in the area??


KnittingTigers's Avatar KnittingTigers 02:19 PM 05-31-2011

Yeah, on the lawyer note, just wanted to add that we did our second parent adoption when we were broke grad students, and qualified for a free lawyer through the state Bar Association's volunteer lawyer program. As it happens, the *best* LGBT rights attorney in our (former) state ended up taking the case, so we got great service for no cost. It was really a blessing, since we could not have afforded to pay out of pocket.


justrose13's Avatar justrose13 10:50 AM 06-06-2011
WE JUST GOT BACK FROM COURT... DP IS NOW CO-GUARDIAN OF OUR SON!!!

the judge was fair and everything went without a hitch! orngbiggrin.gif
alphahen's Avatar alphahen 11:22 AM 06-06-2011

Wonderful News!!  Congratulations!!


gumshoegirl007's Avatar gumshoegirl007 12:07 PM 06-06-2011

Yay!!!!  Wehrli, this is such fantastic news for you and your family.  Way to go!!!!  Congrats!!!! love.gif joy.gif love.gif joy.gif love.gifjoy.gif


prettyisa's Avatar prettyisa 12:30 PM 06-06-2011
So glad to hear this! What fantastic news! joy.gif
osker's Avatar osker 09:41 PM 06-06-2011

That's awesome!!


CascadiaMama's Avatar CascadiaMama 10:21 PM 06-06-2011
Yay! That's great news. It must be such a relief. joy.gif
seraf's Avatar seraf 04:27 AM 06-07-2011

Congrats to you all.


justrose13's Avatar justrose13 05:44 AM 06-07-2011
thanks everyone! it's the best thing we can accomplish here... we definitely just made it easier for those who come after us.
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