Even though same-sex couples are currently unable to marry in the state, judges in Wisconsin's Dane County are recognizing the existing marriages of same-sex couples and are allowing them to adopt their spouse's children, an attorney for the couples told BuzzFeed News.
"What we're trying to do as the law is changing around marriage equality in Wisconsin is explore and establish the laws and equal protections for children of same-sex couples," said Michele L. Perreault, a family law attorney, who has represents same-sex couples who have sought adoption rights.
Just Wednesday, a Dane County judge granted Kat and Teresa Riley's requests to adopt each other's children, as stepparents. In that case, Kat Riley adopted Teresa's 2-year-old biological daughter and Teresa adopted Kat's 4-year-old biological son. Now both children have two legal parents and, as a result, rights involving such things as inheritance and protections like child support and health insurance coverage from both, Perreault said.
Notably, Wisconsin Attorney General J.B. Van Hollen declined to intervene and challenge the couple's request, which means it's unlikely to be appealed to a higher court, Perreault said. The attorney added that she plans to keep pushing similar cases in hopes of bringing Van Hollen and Gov. Scott Walker to make a statement on whether same-sex couples and their children should have the same rights and protections as everyone else.
For the Rileys, however, the decision itself is a victory.
"It was a good day," Kat Riley told BuzzFeed News when reached by phone. "God forbid anything happens to us, there wouldn't be any concerns as to who the parent of this child is and where this child belongs and or any concerns like that. These have been our children since the moment they were conceived and it feels really good to know that going forward they are protected and we are protected as a family."
Perreault said the judge made an important decision to validate a same-sex couple's marriage and their ability to stepparent-adopt, and more importantly, to ensure that their children are protected. "Everyone wants equal rights, but it's also about equal obligations — obligations that come with being a parent," she said. "Without legal obligations, you can't order child support from someone with no legal connection and you can't order health insurance, for example."
Before now, Kat and Teresa were viewed under the law as the guardians of each other's biological children, Kat Riley said. Because of that, the couple had to go out of their way to protect themselves, like "carrying around guardianship papers in the diaper bag, basically, on the off chance that we ended up taking each other's biological child to a medical facility that might not respect our marriage."
Dane County Circuit Judge Shelley Gaylord said she must recognize the Rileys' 2013 legal marriage from Iowa as valid in the case, due to recent rulings in federal court that found Wisconsin's ban on marriage for same-sex couples unconstitutional, the Wisconsin State Journal reported. On Sept. 4, a panel of the 7th Circuit Court of Appeals in Chicago ruled that Indiana's and Wisconsin's marriage bans are unconstitutional.
The Rileys' case is among several successful same-sex adoption requests Perreault has handled in the county or has heard of occurring in other parts of the state involving same-sex couples married elsewhere as well as during a brief period in Wisconsin when hundreds married following an earlier court ruling against the ban; however, she said it's impossible to know how many same-sex couples have been granted adoptions rights seeing as the court records for juvenile cases are closed. The favorable rulings, though, are limited in scope and don't force other judges to come to the same decision, the attorney said.
Opposite-sex couples in the state have automatic adoption rights when married, as the child is presumed to be a child of the marriage and therefore receive the rights and protections from both spouses, according to Perreault. Conversely, "same-sex spouses who have children through adoption or surrogacy or artificial insemination don't have any legal rights or obligations to those children," she said.
"We want to establish and clarify the law related to marital presumption, so that when married same-sex couples give birth to a child through surrogacy or artificial insemination or adopt a child, even out of foster care, there will be the same marital presumption with the rights and obligations to the children," Perreault said. "We don't want people to have to adopt their own children."
Kat Riley said her case is a good step forward for the state in protecting all families but that there's still "a long way to go" until that happens.
"Our family has these protections, but not every family does," she said. "Not every family can afford to do what we've done by hiring an attorney and going to court."