BUILDING 21ST CENTURY FAMILIES: AN UPDATE ON TRENDS AND LAW IN ADOPTION AND ASSISTED REPRODUCTION CLE Credit: 1.0 Sponsors: KBA Family Law Section and LGBT Law Section Wednesday, June 12, 2019 2:25 - 3:25 p.m. Jones Galt House Hotel Louisville, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgement pf the induvial legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenters ................................................................................................................. i Building 21st Century Families: An Update on Trends and Law in Adoption and Assisted Reproduction ............................................................................... 1 THE PRESENTERS Debra Guston Guston & Guston, L.L.P. 55 Harristown Road, Suite 106 Glen Rock New Jersey 07452 (201) 447-6660 www.gustonlaw.com [email protected] DEB GUSTON is a partner in the law firm of Guston & Guston, L.L.P., Glen Rock, NJ where her practice focuses on family formation through adoption and assisted reproduction and family protection through estate planning; estate litigation and administration and guardianships for seniors and special needs children. She is also a Visiting Lecturer at Rutgers School of Law where she teaches Family Law. Ms. Guston is a Past President of the Academy of Adoption & Assisted Reproduction Attorneys. She graduated cum laude from Mount Holyoke College, holds a M.A. from Emerson College and received her J.D. from Cardozo School of Law. She was appointed by the New Jersey Supreme Court to the Family Practice Committee, which evaluates rule changes and other issues for referral to the high court. Ms. Guston is an author of the New Jersey Gestational Carrier Agreement Act that was signed into law in May 2018 making gestational surrogacy arrangements enforceable in New Jersey. She is a leading voice for the expansion of insurance coverage for fertility procedures and frequently testifies before the New Jersey Legislature on these issues. For the past several years, she has been the organizer and moderator of an annual continuing legal education program sponsored by NJ-ICLE on adoption and assisted reproduction topics designed to educate attorneys on new law and practice and ethics issues in these practice areas. She also frequently provides LGBTQ Cultural Competency programs for professionals, civic groups and municipalities. Ms. Guston is a member of the Legal Professional Group of the American Society for Reproductive Medicine. She is a CCAI Angel in Adoption recipient (2017), an honor bestowed by members of Congress and also an Angel Award recipient from CASA of Bergen County. Ms. Guston has been awarded the Distinguished Service Award by the New Jersey Institute for Continuing Legal Education for her years of service and has been honored by the New Jersey State Bar Association for her work on legislative issues on behalf of the Bar and its legislative agenda and by her alma mater, Cardozo School of Law with its E. Nathaniel Gates Award for her years of contribution to LGBT Family Law. She has been voted by her peers as a Super Lawyer (2012 – 2019) and one of the TOP 50 Women Lawyers in New Jersey for 2016-19. Ms. Guston has been honored by the National LGBT Bar Association with its Leading Practitioner Award, which recognizes lawyers in solo and small legal practices for their impact in LGBT legal issues. i Courtney Townes Good Mosley & Townes PLLC 130 St Matthews Ave Ste 200 Louisville, Kentucky 40207 [email protected] COURTNEY TOWNES GOOD devotes her Kentucky law practice exclusively to matters involving adoption and assisted reproduction. She began her legal career in 1996 as a clerk for the late Boyce F. Martin, Jr. as he began his term as Chief Judge of the United States Court of Appeals for the Sixth Circuit. Ms. Good followed her clerkship by joining the law firm of Wyatt, Tarrant & Combs where she worked as an associate. A member of the Kentucky Bar Association and the Louisville Bar Association, Ms. Good is a graduate of Davidson College (1993) and Washington & Lee School of Law (1996). At Washington & Lee University, Ms. Good served on the Moot Court Board, the Virginia Capital Case Clearinghouse, and the Alderson Legal Assistance Program. She is the proud parent of three children. W. Waverly Townes Mosley & Townes PLLC 130 St Matthews Ave Ste 200 Louisville, Kentucky 40207 [email protected] WAVE TOWNES has been in the private practice of law for over 45 years. Prior to that he graduated from Hampden-Sydney College and the University of Kentucky School of Law and then was a law clerk for what was then Kentucky’s Supreme Court. Subsequently he was the head of the Civil Division as an Assistant United States Attorney for the Western District of Kentucky. Initially Mr. Townes had a general practice, but his practice has evolved primarily into a more specialized field of adoptions and assisted reproduction law. He has practiced before the United States Sixth Circuit Court of Appeals; the United States District Courts for both the Eastern and Western Districts of Kentucky as well as many Circuit Courts throughout Kentucky. He has had an AV rating for more than 30 years with Martindale-Hubbell for legal ability and ethical standards as judged by his peers. Mr. Townes is a member of the Kentucky Bar Association, the Louisville Bar Association and is a fellow of the American Academy of Adoption Attorneys, and a fellow of the American Academy of Assisted Reproductive Technology Attorneys. ii BUILDING 21st CENTURY FAMILIES: AN UPDATE ON TRENDS AND LAW IN ADOPTION AND ASSISTED REPRODUCTION Mosley & Townes, PLLC I. ADOPTION LAW A. New Rules Regarding Adoption Placement Prospective revisions: • Simplify the function of a Voluntary and Informed Consent (reduce the window to revoke that document to hours vs. days). • Narrow the objection window for a biological father from months to weeks (a father could soon lose his ability to assert his parental rights once 22 days have passed since the child’s birth). • Create a user-friendly way for men to take responsibility for their offspring. 1. KRS 199.500 Consent to adoption. Effective beginning June 27, 2019. (1) An adoption shall not be granted without the voluntary and informed consent, as defined in KRS 199.011, of the living parent or parents of a child born in lawful wedlock or the mother of the child born out of wedlock, or the father of the child born out of wedlock if paternity is established in a legal action or if an affidavit is filed stating that the affiant is the father of the child, except that the consent of the living parent or parents shall not be required if: (a) The parent or parents have been adjudged mentally disabled and the judgment shall have been in effect for not less than one (1) year prior to the filing of the petition for adoption; (b) The parental rights of the parents have been terminated under KRS Chapter 625; (c) The living parents are divorced and the parental rights of one (1) parent have been terminated under KRS Chapter 625 and consent has been given by the parent having custody and control of the child; or (d) The biological parent has not established parental rights as required by KRS 625.065. 1 (2) A minor parent who is a party defendant may consent to an adoption but a guardian ad litem for the parent shall be appointed. (3) In the case of a child twelve (12) years of age or older, the consent of the child shall be given in court. The court in its discretion may waive this requirement. (4) Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child. *(5) An adoption shall not be granted or a consent for adoption be held valid if the consent for adoption is given prior to seventy-two (72) hours after the birth of the child. A voluntary and informed consent may be taken at seventy- two (72) hours after the birth of the child and shall become final and irrevocable seventy-two (72) hours after it is signed. *Currently awaiting changes in AOC-292 and other related statutes to reflect uniform application of the new seventy-two (72) hour window. Until June 27, 2019, the window is twenty (20) days. Kentucky law limits the circumstances in which a man is deemed to have parental rights. It is incumbent upon every sexually active man to be aware of his partners’ pregnancies. The state now provides a method for men to be alerted to potential paternity, provided that a man duly registers for this notification before his potential offspring reaches a certain age. Pursuant to KRS 625.065, absentee fathers who have not so registered may lose standing to participate in any termination or adoption proceeding regarding their offspring.