Thursday, August 13, 2009

Delaware legislature gets it right on children with two moms

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

The law went into effect July 6, but the law is retroactive, and any cases decided against a legally unrecognized mom under previous law can be reopened. The statute says both those things explicitly.

There is so much that is huge about this statute. Legal parentage has nothing to do with recognizing the couple's relationship to each other, so parentage created this way is not vulnerable to a DOMA challenge. It is full parental status, so that means everything -- not just the custody/visitation/support rights and responsibilites that some courts have extended to a nonbio (or non-adoptive) mom. For example, it means entitlement to government benefits as the child of both parents and the right to inherit from and through both parents. Also, most states have not given EQUAL custody rights to a nonbio mom, and this statute makes clear they are equal.

There are a couple of caveats. The statute probably does not recognize both parents until after the child was born, even if the couple consented to insemination together and fully planned for the child together. Also, it is not clear to me that the second mom can go on the birth certificate, and without that some court proceeding might be necessary, which is a drag. Still, what a great improvement on current law.

Last year, the highest court in Maryland got this issue all wrong. I hope Delaware's legislative response inspires the next session of the Maryland legislature to follow suit.


Isaac said...

I think this statute is for adoption the same as protecting unmarried couples. I'm glad that this statute has untangled adoption and marriage, focusing only on what does matter: the relationship with the children. And that this way DOMA has been overtaken.

In my opinion, there should be a vertical family law including all kinds of parentage and written independent of marriage. It would require to rewrite entire chapters of the Civil Code, but it's necessary and the duty of the Code is to be a coherent law set in sync with the society.

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Unknown said...

I agree! Its a great improvement but still a lot can be made.

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diane said...

I disagree with this law, because my ex-parnter is trying to get custody of my child. When her older son abused my child since was 18 months old. And the courts disolved his record as a sex offender when he turned 18 years old. So he is no longer listed as a sex offender. And the courts have totally ingored that my child is being put back in a home were the child can be abused again. With no regards of the childs welfare just this law. So how would you feel if this was your child?

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Unknown said...

The point I want to make is that the child could not have been worse of if he/she had the second parent as a de facto parent. I do not know law much but that would have enhanced the relationship.

Really the only think the law should have looked at was that she was sound, loved the child and had a parent like relationship with the child long enough. Izi @ auto insurance quotes

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robynson87 said...

I have no qualms regarding this issue and I'm actually glad that they were able to register both women as the child's parents. Same sex marriage isn't uncommon nowadays and I guess it's only for the welfare of the child that the legislator was able to get it right this time around.
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rhonstev said...

It would be hard if the gay couple would split up and fight for the child. Since they're not considered married to some states, there might be a problem on who gets custody of the child.
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