their father’s partner, as he is not their parent or guardian, and thus they are prohibited.17 Traveling, the children cannot leave
the United States solely with their fa- ther’s partner. Broader consequences can result while traveling within and outside the United States in the event of illness or death. Medical decisions cannot be made on behalf of the children by their father’s partner for he is a legal stranger. Even if the couple legally adopted the children through a second parent adop- tion, while traveling outside the state of Maryland, some states could ignore the legal status based on the breadth of their states laws or constitution. It is unclear to date whether for instance, Florida, which prohibits a homosexual individual from adopting, would uphold and legally recognize an adoption by a same sex couple from outside their state while in Florida, despite the legal principal of full faith and credit. Should the partner die without a will,
the children would not inherit any of his property, collect any social security or pension benefits, despite their being part of his family. He cannot cover them on his health insurance, thereby requir- ing both to maintain separate policies. Estate attorneys drafting wills, domestic partnership agreements and powers of attorneys for same sex couples must rely on “creative tax planning” and other complicated tools with the hope and ex- pectation that new laws created will not invalidate the protections they created. The documents must withstand not only the legal standard, but also anticipate challenges by family members in court. When a couple with children sepa-
rate, a family law attorney must start at ground zero to establish the individual’s standing for custody and visitation. Is he a de facto parent? Did the couple enter into a second parent adoption? Is there a third party biological parent in existence who must be considered? Does the couple have a domestic part- nership agreement? Once established, the attorney must begin by preparing the case almost like any other custody and visitation case. Understanding the nuances between same sex couples and
Winter 2008 Trial Reporter 35
opposite sex couples will be critical in obtaining a positive final result. Adding further complications to the case may be extraneous factors such as the notoriety of litigation, fear of being forcibly out- ted in the community or fired at work, estrangement from the children while litigation is pending or on appeal. All of these factors will require the attorney to properly advise the client on there pos- sibilities of coming to fruition.
Conclusion Having had the possibility of marriage
within their grasp, same sex couples in Maryland will continue to fight for civil equality. Until such time, Maryland at- torneys will be needed to assist same sex couples in creating and separating their families and property with creative and unique approaches. n
About the Author
Mark F. Scurti is a partner with the law firm of Scurti, Meiselman & Bled- soe, P.A. in Baltimore, Maryland. His practice focuses on bankruptcy and consumer protection, same sex fam- ily law, corporate, mediation, and civil rights. Mark is actively involved in the Maryland State Bar Association-Board of Governors and as chair of the Public Protection Committee. He has served as chair of the Baltimore City Local Pro Bono Committee, and of the MSBA Consumer Bankruptcy Section. He is past president of the Bar Association of Baltimore City, Pro Bono Resource Center of Maryland, and Baltimore Bar Foundation for Baltimore City.
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