California appeals court clarifies presumed parent status; it's about the parent-child relationship, not the relationship between the adults

California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own.  Last week came the latest addition to that body of law.  California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other.  In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.

This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P.  J.V. was pregnant when she became good friends with E.C.  E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V.  J.V. and the child moved in with E.C. when the child was three months old.  They began a sexual relationship after they were living together, something they did not tell their families until a year later.  Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child.  After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.

At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent.  J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more.  The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes.  The court said that "[J.V.] never intended [E.C.] to be another parent.  She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."

On appeal, the court held that the trial judge had applied the wrong legal standard to the facts.  Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V.  Whether the two women  had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant.  Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so.  It's the conduct after conception and birth that matters, ruled the court.  (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)

There was much evidence of E.C.'s parental relationship with the child.  As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said:  "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."

Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard.  If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.

The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support.  The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.

I'm struck by a number of things in this case.  I can't give my complete support to a policy whose goal is find two parents for a child.  To me, it comes from the same point of view that in other contexts vilifies single parents.  It also suggests that two is some magic number, even when there are more than two.  Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.

After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out.  At that point it's understandable that J.V. regreted some of her decisions.  But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism.  J.V. shouldn't be allowed to rewrite her daughter's life.

Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California.  It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents.  I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.

Let's tell all children that their family structure is equal to all others

The Tuesday New York Times article on pending same-sex marriage legislation in Washington state highlights the politicians, including Governor Christine Gregoire, who have switched their positions and now support the bill that would authorize same-sex marriage there.  So far so good.

The problem lies in how the Governor explained her support. “Let’s tell the children of our same-sex couples," said the Governor in her State of the State address, "that their parents’ relationship is equal to all others in the state.”  In a similar vein, State Senator Rosemary McAuliffe, a recent pro-same-sex marriage convert, said this: “I met the families, I met the children of those families, and I had the realization that it is our responsibility to protect all of our citizens against discrimination.”        

Now I understand the argument that denying access to marriage to same-sex couples sends a message that our relationships are not as valuable as those of different-sex couples.  And I certainly oppose discrimination.  But that includes discrimination against the families of children whose parents don't marry -- gay or straight.  I want the large percentage of children born to unmarried couples to feel that their family structure is equal to that of their classmates with married parents.  And what about the children raised by grandparents or other relatives (including those raised by gay or lesbian grandparents or other relatives)? or by single adoptive parents (plenty of gay and lesbian folks doing that as well)?

If we're talking about validating and affirming the equal value of all families, let's really do that.

Iowa birth certificate case limited to children of unknown donor insemination

Congratulations to Lambda Legal for its initial success in Gartner v. Newton, the case challenging Iowa's refusal to list Melissa Gartner, wife of Heather Martin Gartner, as a parent on the birth certificate for Mackenzie Gartner, who was born to Heather after she and Melissa married.  The state can appeal the ruling if it chooses.

The state's position was that the statute requiring the listing of a husband as the father of a child born to his wife should continue to be read in a gender-specific manner.  The state argued that at least 90% of the time this rule produces a birth certificate with the names of the child's two biological parents.  Applying such a rule to a same-sex couple, the state argued, would produce a biologically accurate birth certificate 0% of the time.

The trial court ruled that the purpose of the birth certificate is not the creation of a biologically accurate record.  I certainly agree with that. In fact, what I like best about this opinion is that it says the presumption that the spouse is the other parent of the child is based on protecting the "integrity of the family" regardless of biological connection.

But there are some troubling aspects to the ruling as well.  The court notes that the Varnum opinion (establishing the right of same-sex couples to marry) cited one of the benefits of marriage as the legitimacy of children.  Refusing to put Melissa's name on the birth certificate, the court said, frustrated recognition of the child's legitimacy.  The court also relied on a 1945 Attorney General's opinion that a married woman's husband must be on the birth certificate even if he was away at war, the mother had an extra-marital affair, and she and the biological father wanted that man's name on the birth certificate.  But the denomination of any children as "legitimate" inherently conveys that some children are "illegitimate," and that is unacceptable.  Consider this language that the court cites from a 1933 case:  "The presumption of paternity 'is founded on decency, morality, and public policy.  The child is...safeguarded against future humiliation and shame..."  This language makes me cringe; it recalls a time when a nonmarital birth carried life-long stigma for the mother and the child.  There is nothing to be happy about when such thinking creeps into reasoning about our families.

And here is the kicker, something that news coverage of the case decision omitted.  The ruling is limited to births where conception has occurred through anonymous donor insemination.  The court says that explicitly.  It won't help couples who conceive with a known donor or where conception occurs through sexual intercourse.  Implicitly, the ruling credits Iowa's argument that the state's asserted interest in identifying the biological father could prevail in those forms of conception.

This highlights how little was really at stake in this case.  A name on a birth certificate does not prove parentage.  It is certainly evidence of parentage, and if no court dispute arises Melissa should be able to use the birth certificate with her name on it to show she is Mackenzie's mother.  But this court was unwilling to give even a birth certificate to a lesbian spouse if there might be a man who could assert rights based on biology.

What Iowa needs is a parentage statute that would protect all lesbian couples, without regard to method of conception and without digging into the despicable ideology of "legitimacy" and "illegitimacy" that we are all well rid of.

Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg

A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years.  The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)

The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible."  The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights.  Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child.  There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child.  (He changed his mind and tried to get parental rights.)  The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born.  The court determined that TMH had a constitutionally protected right to be a parent of her child.

The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case.  The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.

The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation.  But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.

The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child.   The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:

Yes, I know, as did the able trial judge, that the best interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think that it should be. In my view it would be wrong to deprive the child of the benefits - emotional, monetary and supportive - of the relationship to which that child should be entitled with both the appellant and the appellee. Both of the adult women in this case are parents to K.T.-H. in the real sense of the term. I think that we need to find a way to redirect our focus in cases of this kind so that best interests becomes part of the decisional matrix.

The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.

I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one.  That's true, when a child has actually had two functional parents.  I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent.  Plenty of lesbians have children as single parents.  Their family structure also needs to be protected.

Colorado appeals court applies parentage statute to nonbiological mother married to father

There are many cases arising in the context of a wife who gives birth to a child conceived in an extramarital relationship.  Courts have often had to determine whether the biological father can challenge the husband's parentage.  The US Supreme Court, in the famous Michael H. v. Gerald D. case, ruled that a state need not allow the bio dad to assert parentage, even if he developed a relationship with the child.  If the mother and her husband want to raise the child as their own, the Supreme Court ruled, that does not violate the bio father's constitutional rights.

Well a case decided yesterday by the Colorado Court of Appeal, In re S.N.V., raises a similar issue in what I believe is a first-of-a-kind case.  SNV was born in 2007 to a woman who had sexual intercourse with a married man.  The man and his wife claimed that this was a version of a surrogacy arrangement and that the intention was always that the married couple would raise the child.  They claim they attended the bio mom's doctor's appointments, paid for her medical expenses, and have been the child's sole caretakers.  The bio mom claims she had an intimate relationship with the father and that she participated in caring for the child for the first two years, until the father cut off contact.  Then she filed a parentage action to be declared the child's legal mother and to obtain custodial rights.

The wife then filed a parentage action as well.  Her basis for asserting parentage is the Colorado Uniform Parentage Act, which states that a man who receives a child into his home and holds the child out as his own is a presumed father.  (In 2010 I wrote about a case applying this statute to a nonbio dad and noted that it boded well for nonbio moms).  She argued that the statute should be applied to a woman as well as a man, and the court accepted her argument.  The statute says that any interested party can bring an action to determine a mother-child relationship and that "insofar as practicable, the provisions of the [UPA] applicable to the father and child apply."  Another part of the statute says that "in case of a maternity suit against a purported mother, where appropriate in the context, the word 'father' shall mean 'mother."  Taken together, the appeals court determined that the wife could proceed with her parentage claim.

The bio mom could of course also assert a parentage claim.  The court noted that in a previous dispute between a husband and a bio dad the Colorado Supreme Court had determined that the competing claims should be resolved according to the best interests of the child standard.  Therefore, the appeals court remanded this case for a determination of maternity.  In addition to the best interests standard, the court said that

We do not suggest that, in determining best interests, a court must treat statutory presumptions and biological relationships as equals. Nor do we suggest that biological relationships are always the same. We simply note that these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA. 

What does this mean for same-sex couples raising children?  It means, as I predicted in my 2010 post, that a nonbio mom in a lesbian couple who plan for and raise a child together will be a presumptive parent.  It also means that the holding out provision is likely to create a parentage presumption for a nonbio dad raising a child born to his same-sex partner through surrogacy and a nonadoptive parent raising a child legally adopted by his/her partner.  Note that the holding out provision does not depend on marriage; this nonbio mom could have filed her parentage action even if she and the father were raising the child as an unmarried couple.

I tend to be more supportive than many gay rights family lawyers of the parental rights of a woman who bears a child. (I think "surrogates," gestational or traditional, should be able to change their minds upon the birth of the child; I do support surrogacy when practiced by agencies who screen surrogates well, and provide counseling and legal services, so that they weed out those likely to change their minds. Fortunately, many agencies operate in this manner.)  But once a child is born and the birth mother allows another couple to raise the child as their own, in my opinion she cedes a parentage claim based on biology alone.  It looks like that's what happened here.

Wisconsin first grade teacher sets great example for dealing with gender variance among children

Thanks to Shannon Minter for alerting me to this heartwarming account of a Jackson County, Wisconsin teacher's experience with a gender variant first grader.  Melissa Bollow Tempel, in "It's Okay to be Neither," sets an amazing example of how to deal with gender issues in the classroom, including a girl, Allie, who was often taken as a boy.  Equally heartworming, the girl's parents were accepting of their child.  When the teacher called home to ask if she should correct children who said Allie was a boy, Allie's mom asked her what she wanted.  (She wanted the teacher to tell them she's a girl).

There's a growing number of custody disputes between divorced parents who disagree about how to deal with a gender variant child, including children who meet the diagnostic criteria for GIDC (gender identity disorder - children).  Judges are inclined toward the parent who wants to discourage gender variance.  I'd like this Wisconsin teacher's approach to gain ground among teachers and all who deal with children, in the hope that judges will catch on.

New Jersey judge awards full custody of twins born through surrogacy to gay father

The New Jersey case of A.G.R. v. D.R.H. & S.H. is a story of much that can go wrong.  At the center of the case are two twin girls, born in October 2006.  There has been litigation about their parentage and care since they were five months old.  The girls were born to AGR, who was a gestational surrogate for her brother, DRH, and his partner, SH, who is the children's biological father.  AGR filed for custody of the children, and two years ago the trial judge ruled that the documents AGR signed agreeing to be a gestational surrogate were unenforceable in New Jersey and that she is the children's legal mother.  Twenty years ago, in the famous Baby M. case, the New Jersey Supreme Court voided a traditional surrogacy contract as against public policy.  Since then, no one seeking an enforceable surrogacy arrangement would make such arrangements in New Jersey, but that is what these three people did.  The men argued that their situation was distinguishable because it was gestational surrogacy, but the judge didn't buy it.  For the past two years, the children have gone back and forth between the two homes.

Well this week the same judge awarded full legal and physical custody of the children to SH.  He ruled that joint custody was inappropriate because the parents could not agree, communicate, or cooperate.  AGR received generous and fairly typical visitation rights -- every other weekend, three hours on a weekday evening, four weeks in the summer.

One of the things I find most interesting about this case is the plan the men always had that the gestational carrier AGR, aka DRH's sister, would play a large role in the children's lives.  It reminded me of the scenario that is more typically of lesbian couples who use a known donor to conceive; sometimes they expect him to be involved with the child but not to be a parent with legal rights to challenge their decisions.  This is less common among gay male couples using a surrogate, although Judith Stacey's research on gay men in southern California (reported in her most recent book, Unhitched), did uncovered one such family, where the children had relationships with both the gestational surrogate and the egg donor.  SH testified that AGR was expected to be a "special aunt."

Some facts emerged in this opinion that were not in the earling ruling.  I learned in the third paragraph of this 15 page single spaced opinion that AGR was a lesbian.  When she first explored being a surrogate for her brother and his partner in 2004 she was in a four year relationship with a woman that broke up about a year later, shortly before she began the fertility treatments in preparation for the surrogacy.  In 2008, however, she returned to her earlier Baptist faith, renounced her lesbianism, and began espousing negative views of both surrogacy and homosexuality.  (AGR is represented by the same lawyer who represented the birth mother in Baby M., who is also well known for his litigation and legislative work against abortion; I don't see evidence of Liberty Counsel or Alliance Defense Fund's involvement in this case, but the claims of ex-gay parents are a staple in their dockets.)

The judge was deeply concerned that AGR's negative views would have an adverse impact on the children.  AGR was living with her mother (who is of course also SRH's mother), and she, too, had very negative, biblically-based views of homosexuality. AGR said that if she got custody she would enroll the chldren in a Catholic school and take them to a Baptist church. At one point the judge referred to the twins as "special needs" children because of their unusual method of conception and family structure.  The judge held that SH always looked at things from the perspective of the children's best interests.  On the other hand, he found that it was "inevitable" that the strong views of SH and her mother, including that SRH would burn in hell, would have a damaging effect on the children and would make them feel ashamed of themselves.

The plaintiff and defendants each called an expert witness and there was also a court appointed expert, who supported sole custody for the father and his partner (and said it should happen as quickly as possible).  Dr. David Brodzinsky, a well-known expert on adoption who strongly supports LGBT parents, testified for the fathers.  I was very disturbed by one thing he said.  The judge wrote that he testified that "being genetically related give SH an advantage over plaintiff because children relate better to genetic parents."  What?? I'd like to know what he based this on.  I've never heard this view espoused in all the cases between bio and nonbio moms, nor has any court relied on it, so it was pretty shocking to read it here...and from an  expert well known for his work on adoption.

As for the expert for AGR, the judge did not agree with many of his conclusions, but even he said that AGR should not say homosexuality was a sin in front of the children and that taking them to an anti-gay church would be bad for them.  The court appointed expert was deeply disturbed by the impact of AGR's negative views of homosexuality, but he also said something that bothers me -- that SH's two-parent household was better because AGR works during the day (SH was a stay-at-home dad).  This reasoning has been improperly used against divorced moms, gay and straight, when their ex-husbands remarry, and I don't want it in custody decisions about our children.

The judge's findings are so detailed that there is no chance they would be reversed on appeal.  I do not know if the fathers are planning to appeal the finding that AGR is their mother, or if they even can at this point.  When the child at the heart of Baby M. turned 18, she consented to her adoption by her "stepmother" so that her legal parentage could match the family she really had. Perhaps these children will do the same...