On June 30, the Alabama Supreme Court vacated all the lower court orders in the case of Ex Parte N.B., an action filed by a bio mom, N.B., to be declared the sole parent of the child she bore in California while in a same-sex relationship. A California court order that A.K. is the child's legal parent (pursuant to California's interpretation of its Uniform Parentage Act, discussed in this post) remains in effect, but the child is still with the bio mom in Alabama and presumably A.K. must now initiate a process to gain recognition of that order by an Alabama court before she will actually be able to see her child.
The facts are ordinary enough. N.B. and A.K. were partners in California. In April 1999, N.B. bore a child conceived through donor insemination. The couple's relationship ended five years later, and the next year N.B. moved to Alabama with the child. The bio mom then married a man. (The bio mom is represented by Liberty Counsel).
Less than six months after this move, the nonbio mom filed a parentage action in California. Under ordinary child custody jurisdiction rules, a child's "home state" is the exclusive jurisdiction in which a custody action can be filed. When a child moves, the new state of residence does not become the child's "home state" until the child has lived there for six months. Thus, California had exclusive jurisdiction at the time to issue a custody order. Nonetheless, N.B. subsequently filed an action in Alabama to be declared the sole parent of the child. Her pleadings informed the court of A.K.'s actions in California, but A.K. was not made a party or served with the court papers, and she did not appear at the hearing. The trial court ruled in her favor of the bio mom in an ex parte proceeding (meaning no other party was heard). The Alabama appeals court reversed that ruling in 2008, citing the court's lack of jurisdiction because of the California proceedings. (The ruling was similar to the many rulings from the Virginia courts in the Miller-Jenkins case, which I've written about here.)
The Alabama Supreme Court did not address the custody jurisdiction issue at all. Instead it ruled that the bio mom should have notified the nonbio mom of the original proceeding in the Alabama juvenile court. Her failure to do so meant neither that court, nor the appeals court, nor the Supreme Court, could hear any issue raised in the case. The Court ordered all judgments in the case vacated, essentially wiping the case off the face of the earth as though the four years of Alabama litigation had never existed.
The ruling is an outrage. Of course an adverse party is entitled to notice of a proceeding. But the nonbio mom did get involved in the case seven months after the trial court's first order. A.K. asked that the order be set aside, lost, appealed, won the appeal, and then defended against N.B.'s appeal in the Alabama Supreme Court. Wiping out all the previous court orders without ruling on the merits of the jurisdictional issue means the case must start from scratch in Alabama...where the question of jurisdiction, now that the child has lived in Alabama for five years, will arise once more. For all practical purposes, N.B.'s efforts to remain a parent to her child are dead.
As if that wasn't bad enough, the Alabama Supreme Court threw in for good measure a paragraph quoting the state's Defense of Marriage constitutional amendment, with the comment that "questions regarding the judgment of the California trial court and its enforceability in Alabama may exist in light of the unequivocal nature of Alabama public policy on the issue presented by this case." In other words, the court is saying, beware other nonbio moms in Alabama; your parentage orders from elsewhere may be worth nothing here. (This in spite of the fact that the California parentage order was not based on the couple's relationship but on A.K.'s relationship with her child.)
Then again, the court did not actually hold that. It's what lawyers call dicta, language that is unnecessary to the actual ruling in the case which may therefore be disregarded in subsequent cases. We can only hope.
Wednesday, July 21, 2010
Thursday, July 15, 2010
There will be no popular vote on marriage equality in DC
The DC Court of Appeals, sitting en banc, ruled this morning in Jackson v. District of Columbia Board of Elections and Ethics that the marriage equality legislation enacted last year by the DC City Council is not a proper subject for the initiative or referendum process. That means there will be no popular vote on marriage equality in DC.
The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.
The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.
We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.
Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...
The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.
The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.
We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.
Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...
Tuesday, July 13, 2010
Second-parent adoption in Georgia...oh and in France
To read about it in the news, the big story out of France is the decision of the country's highest court that a child who has been adopted by her biological mother's partner in the US has two legally recognized parents in France. (I'm trying not to be too annoyed that this account of the court's decision says the women are both physicians but calls them "Mrs. B" and "Mrs. N"). And that is indeed a big deal, given that not so long ago the French courts were ruling that being gay was a disqualifier from adopting a child.
But you might miss the fact in the story that the American second-parent adoption was granted in...Georgia. Now I have never heard of a second-parent adoption in Georgia, and neither NCLR nor HRC list Georgia among the states where some counties have approved such adoptions.
So I say "bravo" to the French court, but a double shout out to the Georgia court that granted the second-parent adoption. It supports my faith in family court judges, who often know where the best interests of a particular child lie and are unswayed by ideological claims that conrtadict those interests.
But you might miss the fact in the story that the American second-parent adoption was granted in...Georgia. Now I have never heard of a second-parent adoption in Georgia, and neither NCLR nor HRC list Georgia among the states where some counties have approved such adoptions.
So I say "bravo" to the French court, but a double shout out to the Georgia court that granted the second-parent adoption. It supports my faith in family court judges, who often know where the best interests of a particular child lie and are unswayed by ideological claims that conrtadict those interests.
Sunday, July 11, 2010
What married same-sex couples owe to hippie communes
I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.
Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.
After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."
The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.
Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.
Several households challenged the constitutionality of the statute, including two mothers on public assistance living together for economic reasons; a family that took in an unrelated young woman with emotional problems; and named plaintiff Jacinta Moreno, who lived with a mother of three, paying rent and receiving care in return. All were eligible for food stamps but for the fact that none of the households consisted entirely of related individuals.
The Court found that Congress created the food stamp program to alleviate hunger and malnutrition and that distinguishing between related and unrelated persons was irrelevant to that purpose. The Court further rejected the government's assertion that limiting aid to related individuals would reduce the likelihood of fraudulent use of food stamps. The Court did examined the legislative history of the 1971 amendment, and it found this: The amendment was enacted to prevent hippies and hippie communes from receiving food stamps.
And to this the Court said:
The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
It's that language that Justice Kennedy resurrected in Romer v. Evans and that Judge Tauro cites in Gill.
Moreno had a dissent by Justice Rehnquist who thought that Congress was perfectly within its rights to limit food stamps to "some variation on the family as we know it - a household consisting of related individuals." Rehnquist was not yet Chief Justice. As everyone knows, the Court became considerably more conservative in later years, with Rehnquist at its helm and as Republican presidents selected more Justices. It is very likely that the Rehnquist Court would have upheld the food stamp restriction.
But in 1971 hippies were not the only challenge to the traditional family. Feminism and the gay liberation movement were right in there. As I write about in my book, it was a time when defying both conventional sexual morality and the nuclear family norm were part of the vision for creating a better society. And that view was accepted enough that the Supreme Court of the United States thought that Congress could not punish people proclaiming -- and living -- that vision.
Today LGBT people are the beneficiaries of Moreno. It's the only case that Justice Kennedy could cite to strike down Colorado's Amendment 2 in Romer. Romer read gay people into the Equal Protection Clause of the Constitution. Without it there would be no Gill. Whenever you see Moreno cited, thank the hippies, and the legal services lawyers who stood up for them before the Supreme Court.
And if you are not married, don't aspire to marry, and indeed have a more fluid idea of what family ought to count under our laws, Moreno is the case that someday, with some change in the Court's personnel, might mean your liberation as well.
Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.
After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."
The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.
Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.
Several households challenged the constitutionality of the statute, including two mothers on public assistance living together for economic reasons; a family that took in an unrelated young woman with emotional problems; and named plaintiff Jacinta Moreno, who lived with a mother of three, paying rent and receiving care in return. All were eligible for food stamps but for the fact that none of the households consisted entirely of related individuals.
The Court found that Congress created the food stamp program to alleviate hunger and malnutrition and that distinguishing between related and unrelated persons was irrelevant to that purpose. The Court further rejected the government's assertion that limiting aid to related individuals would reduce the likelihood of fraudulent use of food stamps. The Court did examined the legislative history of the 1971 amendment, and it found this: The amendment was enacted to prevent hippies and hippie communes from receiving food stamps.
And to this the Court said:
The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
It's that language that Justice Kennedy resurrected in Romer v. Evans and that Judge Tauro cites in Gill.
Moreno had a dissent by Justice Rehnquist who thought that Congress was perfectly within its rights to limit food stamps to "some variation on the family as we know it - a household consisting of related individuals." Rehnquist was not yet Chief Justice. As everyone knows, the Court became considerably more conservative in later years, with Rehnquist at its helm and as Republican presidents selected more Justices. It is very likely that the Rehnquist Court would have upheld the food stamp restriction.
But in 1971 hippies were not the only challenge to the traditional family. Feminism and the gay liberation movement were right in there. As I write about in my book, it was a time when defying both conventional sexual morality and the nuclear family norm were part of the vision for creating a better society. And that view was accepted enough that the Supreme Court of the United States thought that Congress could not punish people proclaiming -- and living -- that vision.
Today LGBT people are the beneficiaries of Moreno. It's the only case that Justice Kennedy could cite to strike down Colorado's Amendment 2 in Romer. Romer read gay people into the Equal Protection Clause of the Constitution. Without it there would be no Gill. Whenever you see Moreno cited, thank the hippies, and the legal services lawyers who stood up for them before the Supreme Court.
And if you are not married, don't aspire to marry, and indeed have a more fluid idea of what family ought to count under our laws, Moreno is the case that someday, with some change in the Court's personnel, might mean your liberation as well.
Saturday, July 10, 2010
Michigan Court of Appeals blocks nonbio mom's efforts (updated)
Just a few months ago, I wrote about the Michigan trial court ruling in favor of nonbio mom Renee Harmon's efforts to maintain a relationship with her three children. Well, this week the Michigan Court of Appeals reversed that trial judge in a "peremptory order," without even receiving briefs on the issue from the lawyers. The Court ruled that only a biological parent, adoptive parent, or husband of a biological mother can file for custody under Michigan law.
The order cites as support a case in which a man who believed himself to be and held himself out as the father of two children, but was not married to the children's mother, was denied the ability to assert paternity under an "equitable parent" theory. The Michigan Supreme Court held that the doctrine of "equitable parent" would apply within marriage only. By extension, therefore, the doctrine could not apply to Renee Harmon.
We've seen states in which caselaw acknowledging nonmarital, nonbiological fathers is extended to nonbiological mothers. The California case law that establishes parentage for nonbio moms, for example, built on a previous case establishing the parentage of a nonbiological, but nonmarital, father who received a child into his home and held the child out as his own. But Michigan makes marriage the dividing line, even though this cannot make any difference to a child who knows someone as a parent all his/her life. It's wrong for a child with a nonbiological father, and equally wrong for Renee Harmon's children.
The order cites as support a case in which a man who believed himself to be and held himself out as the father of two children, but was not married to the children's mother, was denied the ability to assert paternity under an "equitable parent" theory. The Michigan Supreme Court held that the doctrine of "equitable parent" would apply within marriage only. By extension, therefore, the doctrine could not apply to Renee Harmon.
We've seen states in which caselaw acknowledging nonmarital, nonbiological fathers is extended to nonbiological mothers. The California case law that establishes parentage for nonbio moms, for example, built on a previous case establishing the parentage of a nonbiological, but nonmarital, father who received a child into his home and held the child out as his own. But Michigan makes marriage the dividing line, even though this cannot make any difference to a child who knows someone as a parent all his/her life. It's wrong for a child with a nonbiological father, and equally wrong for Renee Harmon's children.
Tuesday, July 6, 2010
Gary and Tony...and the child who has two mothers
The focus of discussion of the CNN documentary, "Gary and Tony Have a Baby," has understandably been the birth of their child using the egg of one woman and the services of another as a gestational surrogate. But I want to comment on their other child, the one born to a lesbian couple using Tony's semen.
What was remarkable to me about that child was that Tony (and Gary) so clearly understood that the two women were her parents. One of the moms remarks that her daughter refers to Tony as "daddy," but that he is not a parent. The child and all the adults acknowledge that reality as a matter of course. And within that structure, the child has a relationship with the men, and the families clearly have a connection.
While this situation is presented in the film as unremarkable, I recognized immediately another similar circumstance about 20 years ago that took a very different turn. "Thomas S" (who was a highly respected, progressive gay lawyer, Tom Steel) contributed the semen for the birth of Ry to "Robin Y," her bio mom, and Sandra, her nonbio mom. Sandra gave birth to the couple's other child, Cade, using a different known donor. Tom met the girls when Ry Russo-Young was 3 years old, and over the following six years developed a warm relationship with them. Ry sent him Father's Day cards; he saw Ry and her sister about 28 times over those six years, but he never had a night alone with them when their moms were not also there. (He lived in San Francisco; the moms and daughters in New York).
When Ry was 9, Tom wanted to take her to meet his parents and did not want the moms to come along. The moms said no. Tom responded by filing a paternity action in New York. There was quite a split among the gay legal community about what exactly Tom was to Ry. Those who knew Tom were especially inclined to support his action. The split played out in the pages of law professor Art Leonard's Lesbian and Gay Law Notes, and thankfully he has summarized much of the comments in this article. (Search for "Thomas S" and you'll find the spot!).
The psychiatrist who evaluated Ry testified that she knew Tom was her biological father but that she did not consider him a parent (and in fact by then considered him a threat to her family). The trial judge was able to grasp this distinction, and he ruled against Tom. But on appeal, by a vote of 3-2, the New York appeals court described the facts in a way that turned Tom quite obviously (to them) into Ry's father, and that is what they held. (Read the majority and the dissent here.)
The case has a sad ending in many ways. Robin asked the highest court in New York to review the appeals court ruling, and it agreed to do so. Then Tom dropped the case altogether. He had AIDS and was not well. He died in 1998. Ry called him when she knew he was dying, something she discussed in a New York Times Magazine profile of her family in 2004, but she never had a relationship with him again. Ry Russo-Young is now a filmmaker, and recently wrote about her childhood on the Daily Beast.
So imagine if Tom's attitude had been like Tony's, if he had recognized the difference between parentage and his biological connection to Ry. If he had respected Robin and her partner as Ry's parents, he wouldn't have taken Ry to his parents that first time, but what about later? The moms never planned to cut Ry off from Tom, but that is what they did after he filed his paternity case.
Gary and Tony learned that their relationship with Tony's biological child did not satisfy their intense desire to be parents. But they respected the family they helped create. Tom didn't have the option of surrogacy, but he did have the option to work with Ry's moms over time, and as Ry grew up she surely would have had a lot to say about how much she saw Tom. None of that happened because Tom's option to litigate escalated the conflict beyond repair. (Remember that Sandra had no way to protect her relationship with Ry; second parent adoption was new; there had never been one in New York when Ry was born; and if Tom was Ry's legal father he could prevent Sandra from adopting her).
As a lawyer I always advise prospective moms about the risk of using a known donor. The Thomas S. v. Robin Y. case is one reason why. But Gary and Tony's story tells the flip side. Even though it's a risk, it's an arrangement that can work for everyone.
What was remarkable to me about that child was that Tony (and Gary) so clearly understood that the two women were her parents. One of the moms remarks that her daughter refers to Tony as "daddy," but that he is not a parent. The child and all the adults acknowledge that reality as a matter of course. And within that structure, the child has a relationship with the men, and the families clearly have a connection.
While this situation is presented in the film as unremarkable, I recognized immediately another similar circumstance about 20 years ago that took a very different turn. "Thomas S" (who was a highly respected, progressive gay lawyer, Tom Steel) contributed the semen for the birth of Ry to "Robin Y," her bio mom, and Sandra, her nonbio mom. Sandra gave birth to the couple's other child, Cade, using a different known donor. Tom met the girls when Ry Russo-Young was 3 years old, and over the following six years developed a warm relationship with them. Ry sent him Father's Day cards; he saw Ry and her sister about 28 times over those six years, but he never had a night alone with them when their moms were not also there. (He lived in San Francisco; the moms and daughters in New York).
When Ry was 9, Tom wanted to take her to meet his parents and did not want the moms to come along. The moms said no. Tom responded by filing a paternity action in New York. There was quite a split among the gay legal community about what exactly Tom was to Ry. Those who knew Tom were especially inclined to support his action. The split played out in the pages of law professor Art Leonard's Lesbian and Gay Law Notes, and thankfully he has summarized much of the comments in this article. (Search for "Thomas S" and you'll find the spot!).
The psychiatrist who evaluated Ry testified that she knew Tom was her biological father but that she did not consider him a parent (and in fact by then considered him a threat to her family). The trial judge was able to grasp this distinction, and he ruled against Tom. But on appeal, by a vote of 3-2, the New York appeals court described the facts in a way that turned Tom quite obviously (to them) into Ry's father, and that is what they held. (Read the majority and the dissent here.)
The case has a sad ending in many ways. Robin asked the highest court in New York to review the appeals court ruling, and it agreed to do so. Then Tom dropped the case altogether. He had AIDS and was not well. He died in 1998. Ry called him when she knew he was dying, something she discussed in a New York Times Magazine profile of her family in 2004, but she never had a relationship with him again. Ry Russo-Young is now a filmmaker, and recently wrote about her childhood on the Daily Beast.
So imagine if Tom's attitude had been like Tony's, if he had recognized the difference between parentage and his biological connection to Ry. If he had respected Robin and her partner as Ry's parents, he wouldn't have taken Ry to his parents that first time, but what about later? The moms never planned to cut Ry off from Tom, but that is what they did after he filed his paternity case.
Gary and Tony learned that their relationship with Tony's biological child did not satisfy their intense desire to be parents. But they respected the family they helped create. Tom didn't have the option of surrogacy, but he did have the option to work with Ry's moms over time, and as Ry grew up she surely would have had a lot to say about how much she saw Tom. None of that happened because Tom's option to litigate escalated the conflict beyond repair. (Remember that Sandra had no way to protect her relationship with Ry; second parent adoption was new; there had never been one in New York when Ry was born; and if Tom was Ry's legal father he could prevent Sandra from adopting her).
As a lawyer I always advise prospective moms about the risk of using a known donor. The Thomas S. v. Robin Y. case is one reason why. But Gary and Tony's story tells the flip side. Even though it's a risk, it's an arrangement that can work for everyone.
Friday, July 2, 2010
"Paramour provision" once again removed from Tennessee custody decree
When I wrote last fall about Angel Chandler's successful appeal from a provision in her custody decree prohibiting her from having a "paramour" overnight in her home while her children were there, I thought that would be the end of it. Silly me.
The Tennessee Court of Appeals sent Angel's case back to the trial court for a hearing on what the children's best interests required, and the judge once again imposed the "paramour provision." There was no evidence to support this provision, which the children's father took no position on. In fact, there was evidence that the restriction was against the children's interests, as the children had a good relationship with their mother's female partner. Nonetheless, the trial judge, including the restriction on his own, reasoned that "a paramour overnight, abuse of alcohol and abuse of drugs are clearly common sense understanding that children can be adversely affected by such exposure, as found from the legions of cases in the state of Tennessee."
Well, this week the Tennessee appeals court once again reversed the trial court. It's frustrating that this mother had to go through two appeals to achieve this result, and Tennessee gay family law expert Abby Rubenfeld thinks it's not a huge win in the long run because the court doesn't throw out such restrictions altogether. But requiring evidence of harm before imposing such a restriction may be the best anyone can hope for in state that's not especially welcoming of gay and lesbian parents.
This case reminds me of Boswell v. Boswell which I litigated in Maryland in the late 1990's. A trial judge prohibited the gay father from having his children overnight when his partner was present. The mother had not requested the restriction, but she defended it through two levels of appeal all the way to Maryland's highest court. The court overturned the restriction.
At the time, I argued that the court needed to find an adverse impact on the child before restricting visitation, and that is what the court held. Since then, I've changed my mind about the optimal analysis; I would like to argue that the presence of a parent's partner can never have an adverse impact on a child. Sure, the partner may pose a problem for a child, but so can a heterosexual step-parent. Whenever anything in a parent's life is harming a child the court is allowed to consider that, and there shouldn't be a standard specfically carved out for same-sex or non-marital partners. Nonetheless, the "adverse impact" standard is easier to argue, and when there is no case law going even that far, it's to be expected that an advocate will go that route.
If I get a chance make the better argument in a court that might be receptive to it, I'll go for it. In the meantime, a ruling like Baker v. Chandler still counts as a victory.
The Tennessee Court of Appeals sent Angel's case back to the trial court for a hearing on what the children's best interests required, and the judge once again imposed the "paramour provision." There was no evidence to support this provision, which the children's father took no position on. In fact, there was evidence that the restriction was against the children's interests, as the children had a good relationship with their mother's female partner. Nonetheless, the trial judge, including the restriction on his own, reasoned that "a paramour overnight, abuse of alcohol and abuse of drugs are clearly common sense understanding that children can be adversely affected by such exposure, as found from the legions of cases in the state of Tennessee."
Well, this week the Tennessee appeals court once again reversed the trial court. It's frustrating that this mother had to go through two appeals to achieve this result, and Tennessee gay family law expert Abby Rubenfeld thinks it's not a huge win in the long run because the court doesn't throw out such restrictions altogether. But requiring evidence of harm before imposing such a restriction may be the best anyone can hope for in state that's not especially welcoming of gay and lesbian parents.
This case reminds me of Boswell v. Boswell which I litigated in Maryland in the late 1990's. A trial judge prohibited the gay father from having his children overnight when his partner was present. The mother had not requested the restriction, but she defended it through two levels of appeal all the way to Maryland's highest court. The court overturned the restriction.
At the time, I argued that the court needed to find an adverse impact on the child before restricting visitation, and that is what the court held. Since then, I've changed my mind about the optimal analysis; I would like to argue that the presence of a parent's partner can never have an adverse impact on a child. Sure, the partner may pose a problem for a child, but so can a heterosexual step-parent. Whenever anything in a parent's life is harming a child the court is allowed to consider that, and there shouldn't be a standard specfically carved out for same-sex or non-marital partners. Nonetheless, the "adverse impact" standard is easier to argue, and when there is no case law going even that far, it's to be expected that an advocate will go that route.
If I get a chance make the better argument in a court that might be receptive to it, I'll go for it. In the meantime, a ruling like Baker v. Chandler still counts as a victory.
Subscribe to:
Posts (Atom)