Some religious faiths perform marriages for same-sex couples within the rules of their faith, but these marriages are not in and of themselves recognized by any state if they are performed without a marriage license.

In May of 2004, as a result of a landmark victory by GLAD, Massachusetts became the first state to allow same-sex couples to legally marry.  Although Massachusetts does not have a residency requirement for marriage, the former Massachusetts Governor revived an old 1913 law to prevent out-of-state same-sex couples from marrying.  GLAD filed a lawsuit, Cote-Whitacre v. Department of Public Health, challenging this law.  The final result was a partial victory allowing the residents of Rhode Island, New Mexico and Northern Marianas Island (a US territory), as well as residents from any state who intend to reside in Massachusetts the right to marry in Massachusetts.  There is a possibility that the Massachusetts legislature may at some point overturn this law, and then same-sex Vermont couples would be able to legally marry in Massachusetts.  Check GLAD’s website, http://www.glad.org, for the latest information.

Private entities within Vermont are free to provide whatever recognition they wish and may choose to recognize the marriage for purposes of providing spousal health benefits, family memberships, etc.

• What is a civil union?
• What is the difference between marriage and civil unions?
• Who can get a Vermont civil union?
• How do we get a Vermont civil union?
• What are some things we should consider before entering into a Vermont civil union?
• What protections do we gain from a Vermont civil union?
• Do civil unions provide access to federal protections?
• How will a civil union be treated by other states?
• Does joining in a Vermont civil union make me a parent?
• Will I be able to get health insurance through my employer for my Vermont civil union spouse?
• How does a Vermont civil union couple file federal and state income tax returns?
• If we get a Vermont civil union will we be able to get married later?
• How do I end a Vermont civil union?
• Without joining in a civil union, what steps can a couple take to safeguard their relationship in Vermont?

In addition, The Vermont Secretary of State has created The Vermont Guide to Civil Unions which can be found at:  http://www.sec.state.vt.us/otherprg/civilunions/civilunions.html.  Couples planning on entering a Vermont civil union are encouraged to read this guide as well.

1. Relationship Agreement or Contract: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation.  This kind of document serves a similar function to a pre-nuptial agreement.  As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid.  Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children.  (See discussion below concerning parenting agreements)
2. Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled. ⁴⁴ If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A person may also indicate his or her preference regarding the appointment of a guardian—a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (court considers preference of incapacitated person in appointing guardian). ⁴⁵ The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.
3. Durable Power of Attorney for Health Care: Because medical care providers look to a spouse or next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must execute a durable power of attorney for heath care if he or she wishes another person to make those decisions instead of the next-of-kin family member.  According to Vermont law, a person may appoint a health care agent to make decisions for him or her upon incompetence.  ⁴⁶ This can be revoked at any time by creating a new health care proxy or by a clear expression of revocation.  People often give a copy of their durable power of attorney to their doctors and sometimes to family members.  In addition, instructions regarding anatomical gifts may be included within powers of attorney for health care, as well as in living wills or on a driver’s license. ⁴⁷
4. Living Will/Terminal Care Documents: A person 18 years or older may execute a document commonly known as a terminal care document. This document is used in the event that he or she is incapable of participating in decisions about his or her care and directs that no extraordinary measures be used to prolong his or her life when in a terminal condition. ⁴⁸
5. Will: If a person is neither married, nor joined in a civil union, without a will, his or her property passes to:  (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. ⁴⁹ If the person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child in a will.
6. Funeral Planning Documents: Absent a marriage or civil union, upon death, a person’s body is given to their next-of-kin.  This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place.  You can try to avoid confusion and conflict on this issue by leaving explicit written directions giving another person (such as your partner or a friend) control over the funeral and burial arrangements.  Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members. Additionally, these instructions could be included in a durable power of attorney for health care.

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked—with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

People enter into a reciprocal beneficiary relationship by presenting a signed, notarized declaration of a reciprocal beneficiaries relationship to the Commissioner of Health, paying a $10 fee, and receiving a certificate reflecting the filing of the declaration.  ⁵² This relationship can be terminated either by following the same filing process for entering it, or if one of the parties enters into a civil union or marriage. ⁵³

In addition, Vermont state employees who are spouses in a civil union are eligible for the same benefits available to married state employees.  If you have a civil union, you do not need to fill out the domestic partners application.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization. 

With an adoption, if one parent dies, the other parent will automatically assume custody of the child.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will.  The child could also collect social security survivor benefits based on the deceased parent’s work record. 

Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.

• Miller-Jenkins Sidebar

In that case, Janet and Lisa had a child while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. While Virginia is currently deferring to Vermont, legal maneuvering threatens to reopen the issues. For more information, see the GLAD website on Miller-Jenkins.  GLAD and local counsel represent Janet in the Vermont proceedings.

While the result in Miller-Jenkins is a good one, it came only after years of litigation, uncertainty and one parent’s separation from the child that could have been avoided if the couple had adopted in the first place.  Moreover, the circumstances of the Miller-Jenkins case will not apply to everyone:  when one party in a couple relocates, things can change for the worse.  Please call GLAD’s Legal InfoLine for information on these issues. 

In Miller-Jenkins, the Vermont Supreme Court did not discuss its former opinion in Titchenal v. Dexter. ⁶¹ In that case, the Vermont Supreme Court ruled that the Superior Court had no jurisdiction to entertain the visitation claim of a lesbian parent who had not adopted the child in a conflict between former lesbian partners.  That case did not address the jurisdictional power of the Family Court to decide such cases.

With Miller-Jenkins in place, it now seems likely that the Vermont Family Court, (rather than the Superior Court whose jurisdiction was at issue in Titchenal) determines custody, visitation and support issues upon the dissolution of a civil union, as confirmed in Miller-Jenkins.  The reasoning in the Miller-Jenkins opinion might also support the possibility of the Family Court having jurisdiction to hear a de facto parenting case in circumstances where a couple has jointly decided to and in fact has parented a child together even though they did not adopt. ⁶² This is a developing area of law and you should contact GLAD and Vermont-based practitioners.

• Co-parenting Agreement: Couples may enter into an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability or death.  While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
• Wills: The legal parent may nominate a guardian of the child upon the parent’s death. ⁶³ These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
• Power of Attorney: This document is signed by the parent and authorizes another person (the attorney-in-fact) to make a wide variety of decisions and arrangements for the child, including matters related to health care, school and finances. Although these authorizations have been generally respected by schools and pediatricians, among others, their validity has not been tested in court. 

The few lower courts that have addressed the issue have required the parent raising another parent’s sexual orientation as an issue to demonstrate that the parent’s sexual orientation has an adverse effect on the child’s best interests. ⁶⁵

• the relationship of the child with each parent and each parent’s ability to provide the child with love, affection and guidance;
• each parent’s ability to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
• each parent’s ability to meet the child’s present and future developmental needs;
• the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
• each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
• the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
• the relationship of the child with any other person who may significantly affect the child;
• the parents’ ability to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
• evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent. ⁶⁹

If you are in immediate danger from harm, you can file an application for a temporary order. ⁷⁴ All of the courts are required to have procedures for people to file these applications after regular court hours, or on weekends and holidays. ⁷⁵ Temporary orders are generally issued upon request, based on the existence of a relationship between victim and offender that is covered by the law and a credible allegation of abuse or threats of abuse.  The order can include:

• an order restraining the defendant from abusing you and from contacting you in person, by phone or by mail,
• prohibiting the defendant from coming within a fixed distance of you, your residence, or other designated locations where you are likely to spend time, and
• assigning child custody and requiring child support.

The order, a copy of which must be given to the abuser, will state a time within ten days of its being issued for the defendant to contest it.  At the hearing, if the victim proves the abuse, the court will keep the order in effect and make other orders it deems necessary to keep the victim safe. ⁷⁶ Once an order is issued, it is filed with the Department of Public Safety’s abuse database.  Police and sheriff’s departments, as well as state police district offices are also required to maintain procedures to make personnel aware of the existence and contents of abuse prevention orders. ⁷⁷

The order will stay in effect for a fixed period of time, at the end of which the court may extend it for as long as it deems necessary to protect the victim.  The court does not have to find that abuse took place during the time covered by the order to extend it. ⁷⁸

You don’t need a lawyer to get the temporary order, but it may be helpful to have one for later hearings if you think the abuser will contest the order.  The court administrators may be able to connect you with agencies that help victims seek relief and gain access to the courts. ⁷⁹

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed.  Failure to show up might make the court think you are unreliable if you need legal help in the future.

Violation of an abuse order is a criminal offense and can result in the immediate arrest of the abuser, as well as imprisonment of up to six months and a fine of up to $1000. ⁸⁰ It is worth noting that restraining orders do not restrict the abuse victim’s activities or contacts.

A victim may participate in an address confidentiality program, through which the Secretary of State gives the victim another address to use in order to keep the actual address confidential from the public.  ⁸¹

There are other laws that prohibit stalking, harassing and trespassing that may also apply to your situation, but are beyond the scope of this document.  For more information, you may wish to consult the Vermont Center for Crime Victim Services at 1-800-750-1213 or http://www.ccvs.state.vt.us/.