Alliance for Justice report on potential Supreme Court nominee Leah Sears underestimates her hostility to gay and lesbian families

The Alliance for Justice released reports yesterday on thirteen possible nominees for the Supreme Court position being vacated by Justice Stevens. The Alliance for Justice is my favorite Washington DC-based group. (This year they are honoring long-time gay rights activist Urvashi Vaid at their spring luncheon, and cast members from Law and Order will be there -- so get your tickets now!)

Leah Sears appears on the AFJ list, and the report on her includes her connection to the Institute for American Values (IAV), and an op-ed she wrote, as reasons to be concerned about her commitment to marriage equality and the right of same-sex couples to raise children. I think the AFJ does not go far enough.

I've blogged on Leah Sears before, including once before she showed up on the list for last Supreme Court vacancy. She used her position as chief justice of the Georgia Supreme Court to co-host a conference with IAV, at the Court itself, pushing a right-wing "marriage promotion" agenda. Her nomination to the Supreme Court would bode ill for gay and lesbian families, and for the social and economic support all women need to raise children.

There are many heroes on the AFJ list. Pam Karlan is exactly who we need, and is openly gay, but Obama has done nothing to suggest he would take on the right-wing opposition she would generate. Elizabeth Warren is the person I would most trust in the country to fix our financial woes; that makes her my candidate for Treasury Secretary, but that position is taken by one of the guys who got us into the trouble we're in. Carlos Moreno has the strongest track record supporting gay and lesbian parenting and same-sex marriage, as a result of his rulings while on the California Supreme Court (he was the sole member of the court to rule that Prop 8 was unconstitutional). Martha Minow has a long list of family law scholarship that includes support for same-sex couples raising children. Others on the list are likely good news for gay and lesbian families (and wishful thinking, I'm afraid), just not Leah Sears.

Non-bio dad win in Colorado bodes well for non-bio moms

A Colorado Appeals Court ruled earlier this month that a man with a six-year father-child relationship was the child's parent for all legal purposes, including joint legal custody and visitation. Although it's not obvious that such a case would be a win for the children of lesbian couples, in fact the basis for the court's decision is applicable by analogy to the situation in which a non-bio lesbian mom raises a child with the child's bio mom.

Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.

The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.

This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.

Michigan court finds nonbio mom a parent if evidence supports agreement with bio mom

Last month I blogged about Renee Harmon's efforts to maintain her relationship with the 10 year old girl and 7 year old twin boys born during her 19 year relationship with their biological mother, Tammy Davis. Well last week, Michigan Family Court Judge Kathleen McCarthy ruled that Renee will have the opportunity to prove that "an agreement was made to bring these children into this relationship to be jointly raised by these parties." If she can show this by clear and convincing evidence, the court will hold a hearing on custody based on the children's best interests. (To read the court ruling, click on this news story and then on the PDF link to the right of the story.)

Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.

The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.

The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.

According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.

Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:

There is now a significant body of evidence documenting that ... what's important for children's development and adjustment is the quality of the parenting that they obtained from the people who are raising them, and that the gender is not one of those important dimensions.

Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.

The NY Times should not be the last word on marriage and health

As soon as I saw the New York Times article on marriage and health I knew exactly where to turn next -- the blog of Bella DePaulo, a psychologist whose work most convincingly debunks the so-called health advantages of marriage. I was not disappointed; she had responded to the piece when it first appeared on line last week. Her response also refers back to her previous well-documented posts challenging the claims of researchers whose work forms the backbone of the organizations and individuals (including President Obama) who claim more marriage will mean fewer social problems.

Earlier this year, DePaulo wrote an essay for Huffington Post explaining why Harvard University Press was right to decline to publish Maggie Gallagher and Linda Waite's book, The Case for Marriage, which is virtually the Bible of the "marriage promotion" movement. Tara Parker-Pope, author of the NY Times article (and a forthcoming book on marriage) should have read DePaulo's critique before relying uncritically on Waite's conclusions.

The NY Times piece does have nuance, but it would have benefitted from attention to the work of scholars and researchers associated with the Council on Contemporary Families, which held its 2010 conference this weekend. Among the "unconventional wisdom" on their website is a longitudinal study of 2000 adults by Cornell professor Kelly Musick comparing the happiness level of individuals who remained single, got married, or began living with a partner without getting married. And if we're just looking at physical health, there's some intriguing research from Emily Fitzgibbons Shafer, a Stanford doctoral candidate, that African-American women are more likely to become obese if they are married than if they are never married and don't live with a partner; and marriage is associated with a modest increase in Body Mass Index for African-American, Hispanic, and white men and women.

A recently published anthology of essays by CCF scholars, Families As They Really Are, is also a welcome antidote to the oversimplistic and often misleading claims about the one-size-fits-all marriage model.

Obama's hospital visitation memo -- it's really not just about same-sex couples

From the press reports of President Obama's directive on hospital visitation and medical decisionmaking, you'd think it was a divisive gay rights issue, just one step short of authorizing same-sex marriage. And it is absolutely true that it should help prevent the tragedies involving gay and lesbian partners, including one in Florida, another in Maryland, and another about to go to trial in Washington state.

But the memo's reference to the elderly with no children who might be denied the companionship of a good friend is not just a throwaway. It's a fact. And it's a fact that will affect many gay people by assuring them the comfort of close friends, by legitimating that those friendships are a critical component of a happy life. And think of unpartnered gay people of all ages estranged from parents and siblings. They need this directive as much as any same-sex couple. For that matter, the deep relationships we form with friends even when we do have partners also deserve recognition.

There's a critical detail in the directive that bears mention. I read the memo as requesting that the new regulations ensure that a person selected as a decisionmaker in an advance medical directive be allowed to visit. (The syntax of the sentence is a bit convoluted, and if there is any doubt I hope the HHS rule writers will read it this way.) This is important because the easily available advance directive forms often do not state this. So it's actually possible for a person with a valid medical power of attorney to find himself or herself excluded from visitation. (see the examples from the states in the first paragraph, above.) Ridiculous and tragic, but there are enough stories for us to know this happens.

The new regulations will not create a right for a same-sex partner or close friend to make medical decisions. That is still left to each of us to designate in writing, or to state law which often ignores unmarried partners and friends. But it's an important step for all of us, not just for those of us in couple relationships. Yeah!

Maryland misses the chance to protect the children of same-sex couples

Two years ago, the highest court in Maryland ruled that the state did not recognize "de facto" parents. Thus, when a same-sex couple raises a child as two parents and then splits up, only the parent who gave birth to the child or adopted the child has the right to custody; the other parent is a legal stranger, no different from a relative, friend, or neighbor. The court's opinion invited the Maryland General Assembly to change the state's law through a statute.

Well, the General Assembly session ended yesterday without passing a promising bill that defined "de facto" parents and gave them the right to custody and visitation and the obligation to pay child support. Both the Senate and the House held hearings on the bill, which very much resembled legislation enacted in Delaware last year.

The votes to pass the bill were probably there, but it never made it to a floor vote. After Maryland Attorney General Doug Gansler issued an opinion that the state recognizes same-sex marriages validly performed elsewhere (which came coincidentally on the same day the Senate held the hearing on the "de facto" parent bill), a state senator indicated that if the "de facto" parent bill came to the floor he would submit an amendment stating that Maryland does not recognize same-sex marriages from elsewhere; then every senator would have had to go on record on that issue. With that threat at hand, bill sponsor Senator Jamin Raskin pulled the bill from consideration.

The "de facto" parent bill was not only about children of same-sex couples, and it had support from organizations and individuals seeking to protect the relationships all children have with the people they consider their parents. But apparently the subject of same-sex marriage was considered close enough to the subject of the bill that the amendment would have been procedurally proper, and that was enough to kill the bill.

The politics of same-sex marriage derailed this year's efforts. The children of Maryland go unprotected for another year.

Can a step-parent be a de facto parent?

The Supreme Court of Washington ruled last week that a stepparent cannot be a de facto parent. Five years ago, that court acknowledged, in In re L.B., that a nonbiological mother in a lesbian couple was the de facto parent of the child she had raised from birth, for six years, with the biological mother. In last week's case, In re M.F., a six-member majority ruled that a court must decide whether the de facto parentage doctrine applies before applying the factors used to determine if someone is a de facto parent. The court found that it could not apply to a step-parent, at least not when the child already has two legal parents.

In the case, M.F. was born to married parents, Patricia Reiman and Edward Frazier, who separated shortly thereafter and then divorced. The mom had custody and the dad had visitation rights. The mom remarried when M.F. was two years old, and that marriage produced two sons. When that marriage dissolved, the mom and dad, John Corbin, split the time with their two children, but M.F. was usually with the boys when they stayed at their father's. Three years later Corbin petitioned to change the parenting plan with the boys, and the mom stopped sending M.F. when the boys went to their dad's house.

Even though Washington lacks a specific statute on stepparent custody and visitation, the court said there was such a statute (as far as I can gather they meant that there was a third party custody statute which the courts had applied to stepparents). Oddly, the third party custody statute referred to the best interests of the child but the case law said the third party would have to show parental unfitness or actual harm to the child to gain custody.

The majority made two reasonable points. It is different to plan for a child from the beginning. The parents in L.B. would have been parents from the start under the DC parentage statute; they were the functional equivalent of a husband and wife who have a child using donor semen. (The child is born with two parents, even though one parent is not biologically related to the child.) The other reasonable point was that the de facto parent test in L.B. might be satisfied in many, or maybe even most, stepparent situations. In most cases, the parent will foster a parent-child relationship, the family will live in the same house, and the stepparent will function in a parental role. That should not always make the stepparent a person with the same right to custody as the child's legal parent.

But the majority's ruling is really predicated on a notion that is fundamentally flawed -- the idea that a child cannot have more than two parents. The three dissenting judges agreed that the majority was too fixated on the fact that the child already had two parents. That should not be test. It's time for law to recognize the fact of children's lives...that many have more than two functional parents. According to the dissent, M.F.'s father supported the stepfather's efforts to be named a de facto parent. M.F.'s mother is the one who facilitated the development of the parental relationship between the child and Corbin -- who came into the picture, after all, when the child was just over a year old. The dissent notes (and the majority ignores) that M.F.'s therapist believes the Corbin is a de facto father and that losing him would be devastating for the child. (This should meet the actual harm standard the majority presents, but there is no mention of that).

The Northwest Women's Law Center filed a friend of the court brief specifically to urge the court to recognize that a child can have more than two parents. The ACLU also filed a brief on behalf of the stepfather. Both organizations strongly support the rights of parents to raise their children and want to protect those rights against inappropriate incursion. But it is possible to do that through a carefully crafted and applied rule, under which some, but not all, stepparents are recognized as de facto parents.

And the dividing line among stepparents shouldn't depend on whether a child already has two parents. By drawing that line, the Washington Supreme Court is treating a child with one parent (usually a mother) as having less of a family that a child with two parents. Wrong, wrong, wrong. A single mother may have a new partner who should not be considered a de facto parent. A divorced mother may have a new partner who should be considered a de facto parent. This is a court that has stepped up to the plate in several cases to recognize functional families -- both couples and parents. Not here. Here they were blinded by the number two.

It may turn out not to be so bad for this child, who is now 16 years old and who had visitation with her stepfather pursuant to temporary orders during much of the course of this litigation. I hope she will have a lot of say in what kind of relationship they have going forward. But for other children in Washington state, the case establishes an unsurmountable obstacle to recognizing the reality of their lives.

Tomorrow is last day to propose a panel for conference on lesbian lives in the 1970s

The Center for Lesbian and Gay Studies at CUNY (the City University of New York) is hosting a conference October 8-10 entitled, "In Amerika They Call Us Dykes: Lesbian Lives in the 1970s." Tomorrow is the last day to respond to their call for papers. I've submitted a proposal to speak on the emergence of the first legal issue specifically identified as lesbian: the right of a lesbian mother to leave a marriage and maintain custody of her children. I also hope to discuss my co-founding of and work with the DC Feminist Law Collective.

If you lived a lesbian life in the 70s, think about being part of the historical record that this conference will document. If you've studied lesbian life during that period, please come share what you know. Your proposal can be brief (500 words), so you've got time to submit it, even at this late date.