While I was in synagogue yesterday for Yom Kippur, the President proclaimed the day "Family Day 2009." Amid the platitudes on the importance of strong families in keeping adolescents from substance abuse and electronic device overdose came a nod to us...same-sex couples raising children. Here's the quote:
American families from every walk of life have taught us time and again that children raised in loving, caring homes have the ability to reject negative behaviors and reach their highest potential. Whether children are raised by two parents, a single parent, grandparents, a same-sex couple, or a guardian, families encourage us to do our best and enable us to accomplish great things.
We've heard Presidential rhetoric before. When Bill Clinton accepted the Democratic nomination for president in 1992, it was the middle of a family values war. Clinton's contribution in his acceptance speech was the following:
I want an America where "family values" live in our actions, not just in our speeches. An America that includes every family. Every traditional family and every extended family. Every two-parent family, every single-parent family, and every foster family. Every family.
At the time I was thrilled. He didn't mention us by name, but he didn't exclude us either. He said every family. I believed him. That was before the Newt Gingrich Congress of 1994 and a Congress that handed him the Defense of Marriage Act just before the 2006 election.
Obama is three years from reelection. It looks unlikely that he will get DOMA repealed before then. But he's willing to include us in the list of families. And when his administration defends the constitutionality of DOMA, it now makes clear that we make good parents.
It's not enough, but it's progress.
Tuesday, September 29, 2009
Sunday, September 27, 2009
National Geographic Explorer does good job on gender
As a young law student and lawyer in the 1970’s, John Money was one of my heroes. John Money was a Johns Hopkins University psychologist who researched gender and sexuality. He concluded that sexual orientation was fixed at a young age and that a lesbian mother could not “make” her child gay. He was willing to testify for gay parents when their custody or visitation rights were challenged by their heterosexual ex-spouses. When you remember that Anita Bryant was getting gay rights ordinances repealed by arguing the need to “save the children” from “recruitment” into homosexuality, you can see how important it was that a respected expert would say that custody with a gay parent would not make a child gay.
Dr. Money also articulated the difference between sexual orientation and gender identity; and concluded that nothing about gay and lesbian parents would make their girl children identify as boys or their boy children identify as girls. This, too, was an important part of debunking the myths and stereotypes that cost so many parents who came out after heterosexual marriages access to their children.
Unfortunately, Dr. Money also believed that gender identity itself could be molded through upbringing if started at an early age. And this was his downfall. In what may his most famous case, he persuaded the parents of a boy whose circumcision had gone wildly wrong and resulted in destruction of the penis that their son could be turned into a daughter through surgery to create female-appearing genitalia, through hormones, and through consistent upbringing as a girl. The life story – and ultimate suicide- of Money’s victim, David Reimer, was told in As Nature Made Him.
I thought of Money while watching an excellent National Geographic Explorer episode, Sex, Lies, and Gender. The show highlights three distinct situations: intersexed individuals, focusing on a soldier whose MRI well into adulthood reveals that he has ovaries; transgender children, focusing on one family whose son identified immediately as a girl and how his parents came to allow the child to be fully herself; and the hijra in India, focusing on one person who balked at an arranged marriage to a woman, was ejected from his family, and went on to become an advocate for hijra, also known as the “third sex.”
I highly recommend this program. Among other things, it rightly criticizes Dr. Money for the damage he and his theories caused. That I remember the contribution he once made towards educating judges and the public about gay and lesbian parents in no way excuses the harms he caused by believing that gender was malleable at birth.
Dr. Money also articulated the difference between sexual orientation and gender identity; and concluded that nothing about gay and lesbian parents would make their girl children identify as boys or their boy children identify as girls. This, too, was an important part of debunking the myths and stereotypes that cost so many parents who came out after heterosexual marriages access to their children.
Unfortunately, Dr. Money also believed that gender identity itself could be molded through upbringing if started at an early age. And this was his downfall. In what may his most famous case, he persuaded the parents of a boy whose circumcision had gone wildly wrong and resulted in destruction of the penis that their son could be turned into a daughter through surgery to create female-appearing genitalia, through hormones, and through consistent upbringing as a girl. The life story – and ultimate suicide- of Money’s victim, David Reimer, was told in As Nature Made Him.
I thought of Money while watching an excellent National Geographic Explorer episode, Sex, Lies, and Gender. The show highlights three distinct situations: intersexed individuals, focusing on a soldier whose MRI well into adulthood reveals that he has ovaries; transgender children, focusing on one family whose son identified immediately as a girl and how his parents came to allow the child to be fully herself; and the hijra in India, focusing on one person who balked at an arranged marriage to a woman, was ejected from his family, and went on to become an advocate for hijra, also known as the “third sex.”
I highly recommend this program. Among other things, it rightly criticizes Dr. Money for the damage he and his theories caused. That I remember the contribution he once made towards educating judges and the public about gay and lesbian parents in no way excuses the harms he caused by believing that gender was malleable at birth.
Tuesday, September 22, 2009
Lesbian and Gay Families on The Kojo Nnamdi Show
I'll be appearing on the Kojo Nnamdi Show on WAMU-FM at noon (EST) tomorrow. I'm appearing with Oakland attorney and author Fred Hertz, who will discuss his book, Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership, and Civil Unions. I've read Fred's book and it's an easy-to-follow analysis of the various laws across the country that recognize same-sex couples.
I'll be discussing the local situation...quite a varied picture, given super-DOMA state Virginia on the one hand, and super gay-friendly DC on the other. Maryland falls in between, and Delaware, which doesn't get much attention despite its location as a magnet for LGBT folks escaping the DC heat, gave me one of the summer's biggest surprises with its new parentage statute.
There's much to report that has happened since the publication of Beyond (Straight and Gay) Marriage. I'm thrilled to have the chance to explain local LGBT family law. Please call if you have questions!
I'll be discussing the local situation...quite a varied picture, given super-DOMA state Virginia on the one hand, and super gay-friendly DC on the other. Maryland falls in between, and Delaware, which doesn't get much attention despite its location as a magnet for LGBT folks escaping the DC heat, gave me one of the summer's biggest surprises with its new parentage statute.
There's much to report that has happened since the publication of Beyond (Straight and Gay) Marriage. I'm thrilled to have the chance to explain local LGBT family law. Please call if you have questions!
Monday, September 21, 2009
Tennessee dispenses with restriction on "paramour" while children are present
The father of two teenagers did not object to the presence of the mother's same-sex partner while the mom had custody of the children, but a trial judge nonetheless followed a "rule" that no "paramour" could sleep at the home of either parent while the children were also in the home. Since the father was remarried, this "paramour provision" did not apply to him.
Well, the Tennessee Court of Appeals has ruled in Chandler v. Barker, that a trial judge must base custody decisions on a child's best interests, not a rigid application of such a rule. Congratulations to the ACLU which represented the mom. The father did not file a brief in opposition to her appeal.
About 10 years ago I represented a gay dad in Maryland (as a Lambda Legal cooperating attorney) in a dispute over his visitation rights. He and the children's mom disagreed about how much visitation time he should have, but the mom did not ask the court to prohibit the dad's partner from sleeping in their home while the children were there. Nonetheless, the trial judge made that a condition of the visitation. Even though the mother had not requested the restriction, she defended it through two levels of appeals courts. We won at both levels.
The rule against the presence of "paramours" sounds like a relic of a distinct past. It isn't. With many of us fighting (often successfully!) for full recognition of the parentage of same-sex couples who raise children together, it can be easy to forget that lesbian mothers and gay fathers who come out after they have had children within heterosexual marriages still -- in many states -- face obstacles to their ability to fully parent their children. I'm glad Tennessee has removed this one, but all it has done is said that the "paramour provision" cannot be imposed without considering the child's best interests. It's a start, but it is by no means a guarantee that a judge won't get away with imposing such a restriction on flimsy reasons that do not fully honor our families and relationships.
Well, the Tennessee Court of Appeals has ruled in Chandler v. Barker, that a trial judge must base custody decisions on a child's best interests, not a rigid application of such a rule. Congratulations to the ACLU which represented the mom. The father did not file a brief in opposition to her appeal.
About 10 years ago I represented a gay dad in Maryland (as a Lambda Legal cooperating attorney) in a dispute over his visitation rights. He and the children's mom disagreed about how much visitation time he should have, but the mom did not ask the court to prohibit the dad's partner from sleeping in their home while the children were there. Nonetheless, the trial judge made that a condition of the visitation. Even though the mother had not requested the restriction, she defended it through two levels of appeals courts. We won at both levels.
The rule against the presence of "paramours" sounds like a relic of a distinct past. It isn't. With many of us fighting (often successfully!) for full recognition of the parentage of same-sex couples who raise children together, it can be easy to forget that lesbian mothers and gay fathers who come out after they have had children within heterosexual marriages still -- in many states -- face obstacles to their ability to fully parent their children. I'm glad Tennessee has removed this one, but all it has done is said that the "paramour provision" cannot be imposed without considering the child's best interests. It's a start, but it is by no means a guarantee that a judge won't get away with imposing such a restriction on flimsy reasons that do not fully honor our families and relationships.
Sunday, September 20, 2009
Defining family for purposes of family caregiving leave
Thanks to Nan Hunter for alerting me to the proposed regulations implementing my favorite family leave policy: the one that allows federal government employees to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." I've had numerous posts on this topic. I love the current policy because it allows employees to define their own family members. Whenever advocates for marriage equality cite the unfairness of preventing one partner from caring for another who is ill, I always respond by arguing that the solution to that problem isn't marriage --- it's an employee leave policy like the federal government's! Such a policy encompasses same-sex couples but also ensures that unpartnered LGBT individuals, who may be estranged from or live far from their families of origin, can receive care from the people they consider members of their families of choice.
The proposed new regulations make clear that "domestic partners" are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other's "common welfare and financial obligations," but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands "in loco parentis" (in other words, functions as a parent).
Most importantly for my analysis, the broad definition of family remains. The regulations read:
"We are not re-defining the phrase ‘‘[a]ny individual related by blood or affinity’’ whose close association with the employee is the equivalent of a family relationship. We have broadly interpreted the phrase in the past to include such relationships as grandparent and grandchild, brother and sister-in-law, fiance´(e), cousin, aunt and uncle, other relatives outside definitions (1)–(4) in current 5 CFR 630.201 and 630.902, and close friend, to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law."
The late Senator Ted Kennedy was the lead sponsor of the "Healthy Families Act," proposed legislation that would require private employers to provide paid sick leave to their employees. It includes the same definition of whom a worker must be allowed to use their leave to care for as that contained in the standard for federal employees. There is also a movement to get states to pass such laws. Every paid sick leave bill has a definition of the family members the employees may use their leave to care for. I have long argued for the definition in the Healthy Families Act, and I continue to do so.
States with super-DOMAs (those prohibiting recognition of all unmarried couples as well as same-sex marriages) are probably unable to pass a paid sick leave law that includes "domestic partners." But such states can definitely use the broader definition of family. That definition does not single out couples for protection; it simply says that employees must be able to use their sick leave to care for the people closest to them whom they consider members of their family. It's been working for the federal government for 15 years. It respects diverse family relationships. It helps employees balance their work and caregiving responsibilities. And from a LGBT rights perspective it respects all our close relationships, not just those that mirror heterosexual marriage.
I have no problem with changes that specify that same- and different-sex couples are included regardless of marital status. I'm just thrilled they made it crystal clear that the broader definition of family remains. And I'd like to see LGBT rights groups advocate that broader definition in federal and state legislation.
The proposed new regulations make clear that "domestic partners" are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other's "common welfare and financial obligations," but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands "in loco parentis" (in other words, functions as a parent).
Most importantly for my analysis, the broad definition of family remains. The regulations read:
"We are not re-defining the phrase ‘‘[a]ny individual related by blood or affinity’’ whose close association with the employee is the equivalent of a family relationship. We have broadly interpreted the phrase in the past to include such relationships as grandparent and grandchild, brother and sister-in-law, fiance´(e), cousin, aunt and uncle, other relatives outside definitions (1)–(4) in current 5 CFR 630.201 and 630.902, and close friend, to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law."
The late Senator Ted Kennedy was the lead sponsor of the "Healthy Families Act," proposed legislation that would require private employers to provide paid sick leave to their employees. It includes the same definition of whom a worker must be allowed to use their leave to care for as that contained in the standard for federal employees. There is also a movement to get states to pass such laws. Every paid sick leave bill has a definition of the family members the employees may use their leave to care for. I have long argued for the definition in the Healthy Families Act, and I continue to do so.
States with super-DOMAs (those prohibiting recognition of all unmarried couples as well as same-sex marriages) are probably unable to pass a paid sick leave law that includes "domestic partners." But such states can definitely use the broader definition of family. That definition does not single out couples for protection; it simply says that employees must be able to use their sick leave to care for the people closest to them whom they consider members of their family. It's been working for the federal government for 15 years. It respects diverse family relationships. It helps employees balance their work and caregiving responsibilities. And from a LGBT rights perspective it respects all our close relationships, not just those that mirror heterosexual marriage.
I have no problem with changes that specify that same- and different-sex couples are included regardless of marital status. I'm just thrilled they made it crystal clear that the broader definition of family remains. And I'd like to see LGBT rights groups advocate that broader definition in federal and state legislation.
Friday, September 11, 2009
News from Lavender Law -- the latest adoption/foster parenting bans
It's not called Lavender Law anymore, but I can't help myself. (Sixth Ave will never be Avenue of the Americas to me...). Its official name is the National LGBT Bar Association Career Fair & Conference, but by any name this is the annual gathering of LGBT lawyers, law students, and law profs (and some straight advocates who work on our issues). This year's conference is taking place in Brooklyn.
Today I attended a session on "The New Adoption and Foster Care Battle: Cohabitation Bans." Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida...hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner -- gay or straight (Utah...not on its way out).
Kara Suffredini of Family Equality Council then described recent efforts - largely unsuccessful - to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements -- thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.
Finally, Leslie Cooper, ACLU's litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn't count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It's a regurgitation of the right-wing marriage movement's basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.
It's a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded "marriage promotion" when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is...gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.
Today I attended a session on "The New Adoption and Foster Care Battle: Cohabitation Bans." Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida...hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner -- gay or straight (Utah...not on its way out).
Kara Suffredini of Family Equality Council then described recent efforts - largely unsuccessful - to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements -- thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.
Finally, Leslie Cooper, ACLU's litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn't count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It's a regurgitation of the right-wing marriage movement's basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.
It's a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded "marriage promotion" when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is...gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.
Wednesday, September 2, 2009
Will New York finally get it right for children of lesbian couples?
It's almost 20 years since the highest court in New York ruled that a child planned for by a lesbian couple, born to one partner using donor insemination, and raised as the child of two mothers, nonetheless has only one legal parent; and that legal parent has complete autonomy to decide whether the child maintains a relationship with the nonbio mom once the couple splits up. No exceptions.
This isn't Texas. Or Missouri. Or another state known for hostility to same-sex couples raising children. (Texas won't allow the names of two same-sex adoptive parents to appear on the birth certificate of a child born in Texas but adopted elsewhere; Missouri has more reported opinions denying custody to a gay or lesbian parent in favor of a straight ex-spouse than any other state in the country).
No, this is New York. But the case of Alison D v. Virginia M. was decided by the New York Court of Appeals (the state's highest court) in 1991 and it established an iron-clad rule that a nonbiological parent has no standing to bring an action for custody or visitation rights. So unless the couple went to a lawyer and spent the money and time on a second-parent adoption, the child risks the loss of a parent, including the loss of financial support, if the couple splits up.
Well, that may change. Yesterday the court agreed to hear the case of Debra H. v. Janice R. The facts are not as undisputed as in most cases; the bio mom's (Janice's) position is that she decided to have the child on her own and that her ex-partner never functioned as the child's parent. Although the child had the nonbio mom's (Debra's) last name as a middle name and both moms were listed as parents on the naming certificate issued by the couple's synagogue (and on other papers), Janice says she made these decisions under pressure from Debra and to avoid conflict. Janice also signed a power of attorney appointing Debra as the child's guardian until his 21st birthday. The couple entered a civil union in Vermont during the pregnancy, and under Vermont law this confers a presumption of parentage on the nonbio partner, but Janice (a lawyer!) again says she was pressured into this and only did it because she knew a New York court would not recognize the relationship.
The trial court came up with a way around Alison D. It ruled that the Debra could try to prove that the Janice should be estopped from denying Debra's parentage. Estoppel is a legal concept that makes it difficult for a party to back away from a course of action that another party has relied upon over a period of time. The court ruled that if the non-bio mom could prove that she functioned as a parent to the child (in loco parentis), then estoppel would come into play and the court would decide custody and visitation based on the child's best interests.
Janice appealed before the judge actually held a hearing to determine the facts. The appeals court reversed, citing Alison D. No blood plus no adoption equals no legal status. No matter what. It is that ruling (all of five paragraphs long!) that the New York Court of Appeals agreed to review yesterday.
Did they take the case to overturn Alison D.? I sure hope so. California had a similarly bad decision on the books dating from 1991, but in the 2005 Elisa B. case the California Supreme Court overruled that decision. I'd like to think that in the almost two decades since Alison D. the reality of lives of children born to lesbian couples has permeated the understanding of the members of the Court. And of course the composition of the court has changed. None of the judges on the current court were on the court when Alison D. was decided.
There's a small clue in the court's ruling yesterday; the court ordered a resumption of the Sunday visitation that the trial court had ordered until there is a final ruling in the case. That means Debra will actually be able to see the 5 1/2 year old child immediately and throughout the time it takes to brief, argue, and decide the case. I'm taking that as a good sign.
Thanks to Art Leonard for alerting me promptly to the court's decision to hear this appeal.
This isn't Texas. Or Missouri. Or another state known for hostility to same-sex couples raising children. (Texas won't allow the names of two same-sex adoptive parents to appear on the birth certificate of a child born in Texas but adopted elsewhere; Missouri has more reported opinions denying custody to a gay or lesbian parent in favor of a straight ex-spouse than any other state in the country).
No, this is New York. But the case of Alison D v. Virginia M. was decided by the New York Court of Appeals (the state's highest court) in 1991 and it established an iron-clad rule that a nonbiological parent has no standing to bring an action for custody or visitation rights. So unless the couple went to a lawyer and spent the money and time on a second-parent adoption, the child risks the loss of a parent, including the loss of financial support, if the couple splits up.
Well, that may change. Yesterday the court agreed to hear the case of Debra H. v. Janice R. The facts are not as undisputed as in most cases; the bio mom's (Janice's) position is that she decided to have the child on her own and that her ex-partner never functioned as the child's parent. Although the child had the nonbio mom's (Debra's) last name as a middle name and both moms were listed as parents on the naming certificate issued by the couple's synagogue (and on other papers), Janice says she made these decisions under pressure from Debra and to avoid conflict. Janice also signed a power of attorney appointing Debra as the child's guardian until his 21st birthday. The couple entered a civil union in Vermont during the pregnancy, and under Vermont law this confers a presumption of parentage on the nonbio partner, but Janice (a lawyer!) again says she was pressured into this and only did it because she knew a New York court would not recognize the relationship.
The trial court came up with a way around Alison D. It ruled that the Debra could try to prove that the Janice should be estopped from denying Debra's parentage. Estoppel is a legal concept that makes it difficult for a party to back away from a course of action that another party has relied upon over a period of time. The court ruled that if the non-bio mom could prove that she functioned as a parent to the child (in loco parentis), then estoppel would come into play and the court would decide custody and visitation based on the child's best interests.
Janice appealed before the judge actually held a hearing to determine the facts. The appeals court reversed, citing Alison D. No blood plus no adoption equals no legal status. No matter what. It is that ruling (all of five paragraphs long!) that the New York Court of Appeals agreed to review yesterday.
Did they take the case to overturn Alison D.? I sure hope so. California had a similarly bad decision on the books dating from 1991, but in the 2005 Elisa B. case the California Supreme Court overruled that decision. I'd like to think that in the almost two decades since Alison D. the reality of lives of children born to lesbian couples has permeated the understanding of the members of the Court. And of course the composition of the court has changed. None of the judges on the current court were on the court when Alison D. was decided.
There's a small clue in the court's ruling yesterday; the court ordered a resumption of the Sunday visitation that the trial court had ordered until there is a final ruling in the case. That means Debra will actually be able to see the 5 1/2 year old child immediately and throughout the time it takes to brief, argue, and decide the case. I'm taking that as a good sign.
Thanks to Art Leonard for alerting me promptly to the court's decision to hear this appeal.
Tuesday, September 1, 2009
In Texas, another child loses a nonbio mom
It's discouraging to repeat the same story over and over. Here is the latest example of a bio mom eliminating a non-bio mom from a child's life...and getting away with it.
Bio mom, T.S., and non-bio mom, K.V., had a child through donor insemination. The child was given a hyphonated last name (S.-V.). The couple split up about 15 months later. For almost two years after that, the child lived with the bio mom and spent one overnight a week, alternate weekends, and some summer and holiday time with K.V. When K.V. accessed the child's school record without T.S.'s permission, T.S. cut off all contact, prompting K.V. to file a lawsuit.
In all these cases, the legal theories vary somewhat, depending upon what state law can support. For the details of the legal theories asserted in this case, read the whole opinion here. But the bottom line is so often the same; the court will not hear any evidence about the child's best interests because it finds that the non-bio mom has no right to bring an action for custody or visitation at all. That's what happened here.
I am assuming that the couple planned the insemination together and intended to both be parents, although the opinion is scant on facts because no amount of facts would make a legal difference to this court. But the opinion does say that the couple talked about having a child together, received counseling, and co-parented (that's the word the court uses) for the first 15 months while they lived together. Plus, the child's name was a hyphonated form of both moms' names. So in the District of Columbia, both these women would have been the legal parents of the child from the moment of birth.
Texas extends joint legal status to a nonbiological parent only when that parent is a man who is married to the woman who gives birth. That's no surprise. It's just sad.
Bio mom, T.S., and non-bio mom, K.V., had a child through donor insemination. The child was given a hyphonated last name (S.-V.). The couple split up about 15 months later. For almost two years after that, the child lived with the bio mom and spent one overnight a week, alternate weekends, and some summer and holiday time with K.V. When K.V. accessed the child's school record without T.S.'s permission, T.S. cut off all contact, prompting K.V. to file a lawsuit.
In all these cases, the legal theories vary somewhat, depending upon what state law can support. For the details of the legal theories asserted in this case, read the whole opinion here. But the bottom line is so often the same; the court will not hear any evidence about the child's best interests because it finds that the non-bio mom has no right to bring an action for custody or visitation at all. That's what happened here.
I am assuming that the couple planned the insemination together and intended to both be parents, although the opinion is scant on facts because no amount of facts would make a legal difference to this court. But the opinion does say that the couple talked about having a child together, received counseling, and co-parented (that's the word the court uses) for the first 15 months while they lived together. Plus, the child's name was a hyphonated form of both moms' names. So in the District of Columbia, both these women would have been the legal parents of the child from the moment of birth.
Texas extends joint legal status to a nonbiological parent only when that parent is a man who is married to the woman who gives birth. That's no surprise. It's just sad.
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