Escape from the red states: gay parents can wake up to find that their home state wants to break up their family. Some fight back; others simply leave for friendlier locales

Boxes are stacked in the garage, the walls are barren, and an air mattress on the den floor serves as bed for the night in the Orlando, Fla., home of Janine Kirchgassner, 45, and Julia Robertson, 43, and their children, Jessica, 6, and Matthew, 4. It's their last day living here, and the moms look tired. They have a right to--it's their second move in three years.

Determined to keep hopping state to state until they find "home," a place where they feel secure and valued as a family, they have jumped from Texas to Florida and now from Florida to Vermont. They hope this is the last time. "We thought things would be better moving to a bigger city," says Kirchgassner of their move in 2002 from rural Texas to Orlando, a city of about 200,000. "You know--more metropolitan, more liberal. Well, the laws stink here even more."

Kirchgassner and Robertson are among the millions of gay Americans with children who face uncertainty fueled by a sea of ever-changing state laws and statutes that affect everything from who is a legal parent to who may have what when a loved one dies. For families headed by gay and lesbian couples, an out-of-state move means considering things even more basic: Can I become a parent? Can I take time off work if my mate or child is gravely ill? Will I be able to inherit the home I live in and assets built over my lifetime and pass them along to my children?

Laws vary so widely from state to state on some issues that a person who is in many ways secure in one state can cross into a bordering state and be in hostile territory. [For the latest state-by-state info on laws affecting gay parents, click on LINKS at Advocate.com.] For example, Maryland and Virginia, two Beltway states that many Washington, D.C., commuters opt to live in, couldn't be more different for a gay family.

Legal differences among states can have shocking fallout: Washington State couple Ed Swaya, 44, and Gregory Hampel, 36, knew their baby would be born in Oklahoma. They found out at the 23rd week of pregnancy when the baby's birth mother was due and immediately began readying for the adoption of their baby girl, Vivian. When she was born three years ago, hospital staff in the rural Oklahoma hospital shocked them with treatment fit for kings. "People went out of their way to make sure it was a positive experience for us," Swaya says.

What they weren't prepared for was Oklahoma's refusal to amend the birth certificate to show both men as Vivian's fathers, even though the state of Washington had already approved adoption paperwork. Shortly after legal wrangling that resulted in the state caving in on Vivian's case, the Oklahoma legislature quickly passed a law that would disallow same-sex couples from being adoptive parents--even if they come from another state where they are legally recognized.

"What they were doing did nothing to stop the fact that Gregory and I were [Vivian's] legal parents," Swaya says. "All it did was give her an inaccurate birth certificate." Gay rights group Lambda Legal is now challenging the new law in court, with Swaya and Hampel among the plaintiffs.

Oklahoma isn't unique. Gay parents moving between states are well-served not only to do thorough research but also to hire early on an attorney well-versed in local legal issues.

The District of Columbia and eight states--Connecticut, California, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Vermont--allow same-sex couples to complete a second-parent adoption, which makes a same-sex partner a child's legal parent without affecting the other partners parental status. Certain counties in 15 other states have allowed such adoptions.

"This patchwork means your rights as a parent fluctuate based on geography," says Carrie Evans, state legislative director for gay rights group the Human Rights Campaign. "Most gay parents probably have no idea when they move that they can change the legal status of their family."

Kirchgassner and Robertson admit they didn't conduct enough research before moving from east Texas to Florida--a state with the nation's most stringent ban on adoptions by gays and lesbians. The couple had become parents while living in Texarkana, Texas, population 35,000 and the birthplace of Ross Perot. After a five-year journey involving fertility clinics, sperm donors, and medical problems, Jessica was born; two years later came Matthew.

While Robertson carried the children, Kirchgassner was the stay-at-home mother. But Robertson's employer, International Paper, the world's largest forest products company with 83,000 employees, did not offer domestic-partner benefits to her in Texas.

When Kirchgassner became ill and required three surgeries, Robertson was unable to take family leave to care for her or the children as a married couple could. Under Texas law Kirchgassner was no more the children's legal parent--or Robertson's spouse--than the next-door neighbor.