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Same-sex couple sues over Nebraska’s refusal to acknowledge them as parents

Published: Oct. 7, 2021 at 11:00 AM PDT
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OMAHA, Neb. (WOWT/Gray News) - An Omaha couple is suing the State of Nebraska to be recognized as equal mothers of both their children.

In a lawsuit filed Monday in the District Court of Lancaster County, Erin Porterfield and Kristin Williams are looking to be recognized as the legal parents of both children after each gave birth to one child, WOWT reported.

According to a release from the ACLU of Nebraska, the lawsuit is arguing that the Nebraska Department of Health and Human Services is violating the women’s constitutional rights by refusing to equally apply state laws to unmarried opposite-sex parents as they do to same-sex parents. ACLU of Nebraska and Omaha law firm Koenig-Dunne are serving as co-counsel on the case.

Porterfield gave birth to the couple’s first son, Kadin, and Williams gave birth to their second son, Cameron.

“We were never able to marry because by the time the Supreme Court had awarded that right to gay people, we had split as a couple,” Williams said. “We continued to care for both of our children as any couple would with shared custody.”

The couple has been trying to establish both women as equal parents on birth certificates for the children, but the health department denied an application to amend one son’s birth certificate even after a hearing, the release states. The women also attempted to submit gender-neutral version of Voluntary Acknowledgements of Parentage forms, following the orders of a Nebraska judge, but were again denied by the state on Sept. 29.

“At this time, the only routes to legal parentage under Nebraska law are through marital presumption, adoption, or biological relationship,” the Sept. 29 letter from the Department of Health and Human Services states.

“If you had a man and a woman in this exact same scenario, not together anymore, never married, do not want to get married, so we don’t have adoption available to them, all the man needs to do is go and sign an acknowledgement of paternity and he gets put onto the birth certificate and it is a legal order then that he is a parent. Erin and Kristin can’t do that because they’re women,” said Angela Dunne, a managing partner at Koenig-Dunne.

“That ongoing pursuit and denial by health and human services is puzzling. An organization set up to maximize safety and protection of kids is doing the opposite. It’s leaving our kids vulnerable,” Porterfield said.

The women each currently have in loco parentis, or temporary legal acknowledgment of their roles as parents of the other’s child. Achieving full parental rights would allow both parents equal rights to make decisions about various aspects of care — from medical, to educational, to estate planning, etc. — for both their sons, the release states.

“So if I were to get hit by a bus and my will gave half my estate to Kadin, he could be taxed as if he were a stranger to me, and same is true if Erin passed and half her estate went to Cameron, he could be taxed as if he were a stranger to her,” Williams says.

“If they were in a terrible position to have to make decisions based on end-of-life decisions for me or for Kristin, the birth certificate, the parentage piece ... I mean, it’s hard to even think about,” Porterfield said. “But that moment, you don’t want to haggle about who has decision-making opportunity regarding end-of-life decisions for a parent.”

In addition to establishing both mothers as equal parents, the lawsuit is also seeking a declaration that the state must allow application of voluntary paternity rights regardless of gender. The boys were conceived through assisted reproductive technology in 2002, the release states.

“I want the end result to be care, safety, security for our kids and by way of that, documenting us both as parents will do that. It will be a precedent not only for them and their care, it will be peace of mind for me as a parent and for her as a parent,” Porterfield says. “But ongoing for other people in our situation, they also will have firmness and security to make sure their rights and responsibilities as family members documented is present.”

“This civil rights case is about equal treatment for families with same-sex parents,” said Sara Rips, ACLU of Nebraska Legal & Policy Counsel. “Erin and Kristin made the choice together to start and raise a family. They have both been loving and involved moms to these boys since birth. I know that if one of them were a man, the department would have accepted their acknowledgment without any thought or inquiry. Instead, these women are facing discriminatory treatment that’s clearly unconstitutional. Once again, LGBTQ Nebraskans must appeal to the courts to affirm that they are entitled to the same treatment as anyone else.”

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