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Monday, December 22, 2014 |  Madison, WI: 35.0° F  Light Drizzle Fog/Mist
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The stay on legal marriage in Wisconsin for same-sex couples leaves their kids without protections
'We've created two classes of children'
Kat (left) and Teresa Riley, with their children. The couple are seeking stepparent adoption to establish stronger legal ties to their non-biological kids.

In a recent hearing before U.S. District Judge Barbara Crabb, an attorney for the Department of Justice argued that Wisconsin's same-sex marriage lawsuit was solely about the institution of marriage, not about its attendant rights and benefits. The argument prompted Jennifer Quisler, who was sitting in the courtroom, to let out a quiet laugh.

"We're not just looking for a piece of paper," Quisler said after the June 13 hearing at the federal courthouse. "We're looking for the benefits that come with it."

Quisler married Sara Brown in Madison on June 6, the day Crabb issued her decision declaring Wisconsin's ban on same-sex marriage unconstitutional. They were couple #14.

They went to the federal courthouse on June 13 to see whether Crabb would grant an injunction on the state’s ban on same-sex marriage. She did later in the day, and then also immediately stayed the injunction pending the state's appeal of her June 6 ruling. There were some 500 weddings of same-sex couples around the state in the week between her ruling and the stay, but now future weddings are on hold.

Quisler, 31, and Brown, 29, are disappointed in the stay but say they are glad their marriage will still be legal. They are already in the middle of applying to be foster parents in Dane County and foresee expanding their family in the future.

"Having kids is something Sara and I want to do, so this will affect our rights personally," says Quisler.

Michele Perreault, a local attorney, says she has received many calls from clients who want to know what the stay means for them and their children. Can they proceed with adoption? Can they file joint tax returns?

Perreault says that while some see the hold as an inevitable part of the appeals process, it has significant, immediate effects for adults and their children.

"I have one client who is dying," she says. The couple married in Illinois and have kids. "If they could have gotten married [legally in Wisconsin] or had their marriage recognized, it would make it much, much easier for their children."

"I think people are cavalier about the real impact [of the stay] on real families in Wisconsin," adds Perreault. "Particularly families with children."

One significant outcome of legal marriage for same-sex couples would be the ability to do stepparent adoptions, says Perreault.

It is a relatively simple, inexpensive process, and all the children in the family would then be eligible to receive both parents' health, retirement and Social Security benefits, among others. It would also impose on both parents the obligation to protect children, which includes the duty to provide child support in the event the couple break up.

Without adoption available to same-sex couples in Wisconsin, attorneys have gone for the next-best thing: designating the non-biological or non-adoptive parent as a legal guardian.

"[We] have been trying to create legal rights and obligations as best we can," says Perreault. "However, it's far from perfect."

One downside, she notes, is that the standards for terminating the guardianship are low. "It's questionable whether or not the courts can impose a child-support order on the non-biological parent," says Perreault.

"We've created two classes of children in Wisconsin," she says. "One class has full protections and rights, and the other class does not."

Crabb, in her 88-page decision, addresses this point, writing that "the most immediate effect that the same-sex marriage ban has on children is to foster less than optimal results for children of same-sex parents by stigmatizing them and depriving them of the benefits that marriage could provide."

She was responding to the state's arguments that social science data "suggests that traditional marriage is optimal for families." An amicus brief filed in support of the state's position also argued that government has a valid interest in encouraging the "rearing of children by a mother and father in a family union once they are born."

Crabb countered that the substance of these arguments has been "seriously questioned by both experts and courts."

She also rejected arguments that allowing same-sex marriage would lead to prohibitions being lifted for such things as polygamy and incest. She said such concerns have not materialized elsewhere.

"There is no evidence from Europe that lifting the restriction on same-sex marriage has had an effect on other marriage restrictions related to age, consanguinity or number of partners." Similarly, she added, "in Vermont and Massachusetts, the first states to give legal recognition to same-sex couples, there has been no movement toward polygamy or incest."

Perreault says some couples have already applied for stepparent adoptions, and she will be filing soon on behalf of some of her clients.

"I think there is enough ambiguity in the injunction and then the stay that it is not entirely clear to courts and attorneys as to what they should do if someone applies for stepparent adoption," she says. "The only way to find out is for someone to apply and see how it works up the ladder."

Perreault says that the U.S. Supreme Court has determined there is a fundamental and constitutional right to parent and that Crabb concluded that right applies to same-sex couples.

"But right now there is only a fundamental right for either the biological or adoptive parent to parent," she says. Without same-sex adoption, the children's relationship to their parents is not protected.

Kat and Teresa Riley are in the process of filing papers to become the stepparents of each other's biological child. Kat, 37, had a son four years ago and Teresa, 36, a daughter two years ago.

Kat is a police detective with the city of Madison. Though she and Teresa were married legally this past December in Iowa, their marriage is not currently recognized in Wisconsin. Should she be killed in the line of duty her son would be entitled to a lifetime of substantial benefits, but her daughter would not be.

"It's a weird feeling to think they could be treated differently for years to come based on such a silly and narrow definition of family," says Kat.

The couple have paperwork proving they are the legal guardian for each other's biological children, and they carry the papers with them in a diaper bag. They are forging ahead with the adoption process, though not without some resentment.

Kat investigates crimes against children and, as such, sees a lot of unhealthy family situations. Perhaps that is why she finds it "aggravating" and "belittling" to jump through the hoops for adopting, which includes home visits from social workers and letters from friends vouching for their parenting skills.

"It's demoralizing," she says.

Kat notes that same-sex couples are the only group that does not have the automatic presumption of parenthood for all children who result from the union.

"A straight couple can get married and a month later the woman can have a child. The legal husband is presumed to be the father."

Kat says that had she and Teresa been legally married when their son was born, she would have automatically been his legal parent and been listed on his birth certificate. "It would have calmed a lot of the fears in those early days about the unknown."

But they will proceed with stepparent adoption because now it is the best option to protect their children.

"We are going to push forward because it's the right thing to do," she says. "We are at a place and time in our lives and history. This is something worthy of fighting for."

Perreault says that in Wisconsin, the only children who do not receive equal protection under the law are children from same-sex households.

"Children of opposite-sex couples -- even one-night stands with no intention of establishing a loving long-term relationship -- immediately receive child support, insurance, the right to placement and joint legal custody with both parents, and federal benefits such as Social Security in the event a parent (married or unmarried) dies or becomes disabled while the child is a minor," she says.

Perreault argues there is no valid reason to create these distinctions, particularly when it is clear that same-sex couples are thoughtful in their process in creating families. With same-sex couples, she notes, "there are no 'whoops' babies."

[Editors note: This article was corrected with the appropriate spelling of Michele Perreault.]

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