Tuesday, November 30, 2010

"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)

The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers.

The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.

But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.

The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:

We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.

This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.

With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:

There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.

The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.

The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.

But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.

Monday, November 29, 2010

Conference to examine the "New Illegitimacy"

On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."

The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.

I sent the following call for papers to numerous family law academics:

It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.

Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). Massachusetts, the first state to permit same-sex couples to marry, will recognize the spouse – male or female -- of a woman who conceives through donor insemination as a parent. If the couple is not married, however, the child has only one parent. New York also recognizes a nonbiological mother as a legal parent only if she is married to, or in a civil union/domestic partnership with, the child’s biological mother. In Iowa, the state has yet to recognize that married lesbians are both the parents of a child born to one of them, but even when it does there will be no recognition that a child whose mothers are unmarried has two parents. No court has yet extended to the children of same-sex couples the well-established principle that the law should not discriminate against children born outside marriage.

Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.

These developments are taking place in the context of a broader dispute over family structure. Those who argue that children achieve optimal outcomes only when raised by their married biological parents urge legal principles disfavoring all other family forms. Explicitly or by implication, they disparage adoptive families, single mothers and fathers, families formed through assisted reproduction, kinship caregiving, children with more than two functional parents, and numerous other households in which children grow and thrive. Rather than advocate law reform that values all children in all families, they seek to privilege “legitimate” children in a fashion that mainstream family law rejected decades ago.

The American University Journal of Gender, Social Policy & the Law and the National Center for Lesbian Rights are co-sponsoring a conference addressing the issues raised by recent developments privileging the children of married parents. With some states now dividing the children of same-sex parents into those who are “legitimate” and those who are “illegitimate,” it is critical that law reform efforts on behalf of gay and lesbian families forcefully articulate that this approach harms children and furthers no proper public purpose. The conference planners seek papers on this conference theme.

While this debate arises from controversy over the status of children in the various family forms that lesbians, gay men, and transgender people are creating, we strongly encourage papers that tie in the needs of other children facing the stigma of “illegitimacy” because their family does not fit the mold of one biological mother married to one biological father.

Happily, I received far more interest in this topic than I imagined, and there will be a terrific line-up of law professors presenting papers. Confirmed participants include: Susan Appleton (Washington U.), Nicholas Bala (Queens University - Canada), Carlos Ball (Rutgers-Newark), Cynthia Bowman (Cornell), Sacha Coupet (Loyola-Chicago), Ariela Dubler (Columbia), Katherine Franke (Columbia), Joanna Grossman (Hofstra), Leslie Harris (Oregon), Melanie Jacobs (Michigan State), Solangel Maldonado (Seton Hall), Serena Mayeri (U. Penn), Melissa Murray (Berkeley), Julie Shapiro (Seattle), Catherine Smith (Denver), Dean Spade (Seattle), Richard Storrow (CUNY-Queens), and Tanya Washington (Georgia State).

If you are interested in this topic, please plan to attend the conference. There is no registration fee (we ask you to register so we know how many mouths we'll be feeding!).

Monday, November 22, 2010

Kudos to American University for expanding domestic partnership benefits to include different-sex couples

It's no surprise to readers of this blog (or my book) that I dislike domestic partner benefits extended only to same-sex couples. The first employer-provided DP benefits were for same- and different-sex partners, and the theory behind them was that "marriage" was too narrow a category for what counted as family and that a couple should not have to marry for one to be able to protect the economic well-being of the other. The rise of DP benefits for same-sex couples only, however, reflected a different perspective, one based solely on the inability of same-sex couples to marry. Same-sex only benefits accepted marriage as a proper criterion for extending benefits but gave same-sex couples benefits only because they could not marry.

The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.

So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.

Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.

Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.

Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.

I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.

Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.

But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.

Thursday, November 18, 2010

The new federal hospital visitation rules: "Conscience clauses" do not apply .. and what else the final rule does or does not cover

Of the 78 page publication available today from the Department of Health and Human Services, only 4 contain the actual regulations that will become effective 60 days after publication in the Federal Register. The gist of those four pages is simple. Hospitals governed by the rules of the Medicare and Medicaid programs must tell each patient that s/he has the right to receive the visitors she wants and visitation shall not be denied on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.

This is good news.

The other seventy or so pages report on the comments the agency received on the proposed regulations and the agency's responses to those comments. Here are the points that are most important to the well-being of hospitalized LGBT people.

Number one: The regulations have no impact whatsoever on medical decisionmaking when someone is unconscious or otherwise unable to make decisions. Several comments to the proposed rule raised issues related to medical decisionmaking, and the responses in this document consistently state that the matter is governed by state law and beyond the scope of the new rules. There is a gentle nudge to not only write out an advance directive naming a surrogate decisionmaker but to register that advance directive with a database that hospitals may have access to. (I have long advocated a federal database for advance directives, but for now the only options are some states or a commercial database).

Number two: The "conscience clauses" that you hear about for doctors and other medical personnel who do not want to peform procedures that are inconsistent with their values do not apply to refusing to carry out a patient's wishes concerning who visits or who makes medical decisions pursuant to an advance directive. In other words, a doctor who does not approve of same-sex relationships cannot exercise his "conscience" to refuse to let a same-sex partner make medical decisions if that partner is named in an advance directive.

Number three: Today's document goes to great length to educate medical providers about circumstances that could include medical care for a child of a same-sex couple. It says that a legal adoption is "generally recognized" in another state (the language of the Full Faith and Credit clause would have been more accurate) and that this includes default decision-making that goes with being a legal parent, even if the parent and child cross state lines into a state that would not have granted the adoption. While pointing out that the legal status of a nonbiological or nonadoptive parent is governed by state law, the document also notes that "some states in fact recognize 'de facto' or 'functional' or 'equitable' parenthood, i.e. recognize non-biological and non-adoptive parents as legal parents."

Number four: Oral designation of a "support person" is sufficient to establish who can visit. That person then has the right to make decisions about who visits the patient if the patient becomes unable to say for him/herself whether a visitor should be allowed. The term "support person" is used, rather than "representative," because the latter is thought to have a definition in state law that is too narrow to serve the purpose of these regulations.

Number five: Only when a patient is incapacitated and so cannot make an oral designation, and more than one person claims the right to be the patient's "support person," can a hospital require any documentation. In those instances, the documentation the hospital can examine includes an advance directive, shared, residence or property or business ownership, financial interdependence, "marital/relationship status," existence of a legal relationship recognized in another state, an affidavit acknowledging a committed relationship, something in writing from the patient even if not a legally recognized advance directive.

So if your go to the hospital with your partner or your close friend, and that person is unconscious, you should not be required to provide documentation to show that you qualify as a support person. Think Karen Thompson arriving at the hospital to see Sharon Kowalski, turned away when she identified herself as a close friend who lived with Sharon. Sharon's parents were not around at the time. Under the new rules, she should not be turned away.

If both Karen and Sharon's father are there, however, the hospital can require documentation, but the rules do not require the hospital to pick a legal relative (e.g., parent) over someone with no legal relationship as the "support person." Again, this is not the same as a medical decisionmaker, which is governed by state law.

When there are conflicts between two people, the response to several comments notes that "[medical facilities] may also choose to utilize their own social work and pastoral counseling resources to resolve such conflicts to assure the patient's well-being." (Aside from me: Some states -- Colorado is one -- actually require by law that if all the people concerned about an unconscious patient cannot agree on a health care decision, they have to get together and try to agree; otherwise, any of them can go to court to try to get guardianship. "Close friends" are included in this group. I've had a doctor in Colorado tell me it works really well...)

A final note of interest. In response to some comments asking for examples of when patient visitation rights had been violated, the final rule refers the reader to the website that contains all the personal submissions that prove this really has been a problem in numerous instances. Of course there are 1266 public submissions so don't delve in unless you're prepared for a lot of pointing and clicking!

Tuesday, November 16, 2010

DADT hurts gay parents and their children

On The Nation website today, National Center for Lesbian Rights attorneys Ilona Turner and Daniel Redman write about the impact of DADT on servicemembers with families. The article contains numerous examples of servicemembers subject to a form of blackmail by ex-spouses who fight for custody of children born during prior heterosexual marriages. It doesn't matter whether the lesbian or gay parent lives in a state that fully supports the rights of LGBT people to raise children; the parent may not lose her child, but she will lose her job. As the authors point out, DADT doesn't really mean don't tell the military; it means don't tell anyone. Unfortunately, DADT is also a weapon that a gay civilian can use against a military ex-partner; San Francisco attorney Deb Wald describes such a situation in the article.

When DADT means that a servicemember can lose her children, it turns those children into a form of collateral damage. Does anyone remember that DADT was supposed to be an improvement on the prior rule, which completely excluded gay people from serving in the military? The increase in discharges put the lie to that. And lesbian servicemembers continue to be discharged at a higher rate than gay male servicemembers. We should thank the authors of this piece for bringing to light the harm DADT causes them and their children.

Friday, November 12, 2010

Lesbian mother vs. convicted murderer father is the subject of an upcoming documentary

I spend a lot of time writing about gay couples having children and their ensuing legal issues. But I never forget about the gay and lesbian parents who defend their right to their children against heterosexual ex-spouses or other relatives. Filmmakers are preparing a documentary about one such case, Ward v. Ward, decided in Florida in the mid-1990's. Mary Ward lost custody of her 12-yr-old daughter to her ex-husband, who had murdered his first wife. John Ward was remarried, and he and his wife charged that the child had been exposed to improper influences in her mother's home.

You can watch a trailer for the movie, Unfit. The filmmakers are seeking funding to get the movie finished. National Center for Lesbian Rights Executive Director Kate Kendell will appear at a fundraiser for the film in Miami Beach next week.

These gay vs straight custody disputes are not ancient history; they continue today. Lesbian mothers still lose. But they also win. Even in conservative states, there are judges who will not modify custody or visitation rights based on a parent's sexual orientation. We tend not to hear about most cases, because they aren't appealed. Even though a win for one lesbian mom or gay dad could be a huge boost to the morale of another parent fighting for custody, the parent who has won at the trial level is unlikely to want to publicize that victory and risk having the publicity used to claim s/he is not acting in the child's best interests. The key for any parent facing such a custody challenge is finding a lawyer who knows this area of law or is willing to be guided by the experts at the National Center for Lesbian Rights.

Thursday, November 11, 2010

Supreme Court -again- turns back Lisa Miller

Just a couple of weeks ago, the Vermont Supreme Court upheld a trial court's ruling that custody of Isabella Miller-Jenkins should be transfered to her nonbio mom Janet Jenkins. Isabella is, of course, the child at the center of the longest running dispute between lesbian ex-partners over custody of the child they planned for and raised together. Bio mom Lisa Miller has lost in the courts of Vermont and Virginia on multiple occasions, and is now living in hiding with the child.

Well this week Miller got one more rebuff, this time from the US Supreme Court, which refused to hear the most recent ruling from the Virginia courts requiring enforcement of the Vermont court orders. I wrote about the latest Virginia ruling here. It's not surprising the Supreme Court isn't hearing the case. It hears very few cases, and the legal issue concerning recognition of child custody rulings properly granted in other states is settled law. It's not surprising either that Liberty Counsel, who represents Lisa in both Vermont and Virginia, keeps asserting legally untenable positions. And with Isabella underground, all these rulings are just so many pieces of paper.

Wednesday, November 10, 2010

National Longitudinal Lesbian Family Study reports findings on 17 year old children of lesbian moms

Earlier this year, I wrote about the well-being of the 17 year old children of lesbians in the US National Longitudinal Lesbian Family Study (NLLFS). Now there's more data on these children, this time published in the Archives of Sexual Behavior. The current article examines the sexual orientation, sexual behavior, and sexual risk exposure of seventy-eight 17 year olds whose mothers enrolled in the NLLFS before their birth. Psychiatrist Nanette Gartrell and her colleagues have been studying these children and their families beginning in 1986. Their research findings are the response to all the naysayers who argue that there is no longitudinal research on the children raised in planned lesbian families. Turns out there is.

Here are the punchlines on the data in this report: None of the children had been physically or sexually abused. They were less likely (and for the boys much less likely) than an age- and gender-matched group from the US National Study of Family Growth (NSFG) to be sexually active. And those who were sexually active were older at first contact than the NSFG group. Those findings, on a general level, rebut assertions that our families are highly sexualized and expose children to a heightened risk of sexual abuse. On this latter point, the researchers note that the children grew up in homes without adult males, and adult heterosexual males are largely the perpetrators of sexual abuse in the home. (Utah law professor Clifford Rosky has argued the importance of acknowledging the gender of sexual abuse and of responding to arguments about gay fathers with the research showing that gay men are no more likely than straight men, in proportion to their numbers, to sexually abuse children. The NLLFS includes only children of lesbian mothers.)

As for the sexual orientation and sexual behavior of the children, the researchers asked them to self-rate on the Kinsey scale (0-6, with 0 exclusively heterosexual and 6 exclusively homosexual). Grouping 0-1 as essentially/predominantly heterosexual, 2-4 as on a bisexual spectrum, and 5-6 as essentially/predominantly homosexual, researchers found that about 81% of the girls and 91% of the boys were heterosexual, about 19% of the girls and 3% of the boys were bisexual, and no girls and about 5% of the boys were homosexual. The girls, but not the boys, were more likely than the age matched NSFG group to have engaged in same-sex activity.

Sociologists Judith Stacey and Timothy Biblarz wrote in 2001 that one would expect the children of same-sex couples to be more open to exploration of same-sex relationships. They criticized advocates for LGBT parents for insisting there were no differences between children raised by gay parents and children raised by straight parents. Rather, Stacey and Biblarz asserted that there were no differences that should count as deficits and no differences that should cause judges and child welfare agencies to discriminate against gay parents.

For years, opponents of same-sex couples raising children have engaged in a sleight of hand when discussing research on the well-being of children. When a study supports their point of view, they use it without critique of its methodology; when a study does not support their point of view, they trash it for methodological weakness. What will they do with this study? They will certainly want to use the finding on the same-sex sexual activity of the girls, but they won't want to mention that the children were less likely to be sexually active at all, and were older on first sexual contact, than the comparison group.

But advocates for our families need to watch out also. I've already seen a headline that "study finds 0% abuse in lesbian-headed households." As far as I know, no one has ever claimed that children with gay parents are more at risk for non-sexual physical abuse; the alleged concern is always sexual abuse. Well women commit very little sexual abuse period. In fact, if we were using general data on sexual abuse in making child placement decisions we would always pick single or coupled women as custodial, foster, and adoptive parents. We ought to admit, as Clifford Rosky has argued, that the concerns about sexual abuse are directed at gay men, not at gay and lesbian parents lumped together. Then we can fight back with the data that gay men are not more likely than straight men to sexually abuse children. There is such data. Just not in this research.

Tuesday, November 9, 2010

This child has two fathers....sort of...and this is not a story about gay dads

A California appeals court has provided us with yet another story of complex family life to which law must respond. The case is Citizens Business Bank v. Carrano. Doesn't sound like a family law case, does it? Turns out it's a case about inheritance, specifically about the terms of a trust. The law of wills, trusts, and estates is often really family law....it's just that someone is dead.

In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.

The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.

The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.

The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.

So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.

There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.

As I often tell my family law students, I couldn't make up these facts....

Monday, November 8, 2010

Creating "truth" through reciprocal citation practices dates back before the internet and cable news

A lengthy segment on The Rachel Maddow Show (I am a huge fan) last Thursday focused on the creation of "truth" through simply repeating falsehoods espoused by others and using those other sources as evidence of the facts asserted. Naturally, Fox News and the internet play large roles in the story.

The segment made me think of a phenomenon first identified by the sociologist Judith Stacey in a 1994 article in Social Text and later more fully described in her 1996 book, In the Name of the Family. The early 1990's saw the emergence of opposition to gay and lesbian families, single mothers, and any childrearing outside life-long heterosexual marriage based not on arguments about God and morality (that was so 1980's) but rather based on social science. Social scientists, historians, and other advocates who claimed they were centrists asserted that children needed to be raised in two-parent mother/father families. Deviation from that family structure, they argued, spelled doom for the mental, physical, and emotional well-being of those children and concommitantly for the well-being of society.

Through carefully tracing who was citing whom (in those pre-Google days), Stacey described the practice of reciprocal citation. "Through the sheer force of categorical assertion, repetition, and cross-citation of each other's publications," she wrote, "these social scientists seem to have convinced most of the media, the literate public, and Clinton himself that a fault-free bedrock of social science research validates the particular family values that they and most American claim to favor, but fail to practice."

After documenting the practice with numerous examples, Stacey concluded:
"It is not often that social construction, or more precisely here, the political construction of knowledge is quite so visible or incestuous as in the reciprocal citation practices of these cultural crusaders."

Rachel Maddow could give us a video montage, while Judith Stacey could only provide words on the page. The visual images are both horrifying and depressing. But even without today's tools of cable news and the internet, the force of reciprocal citation did great harm. It gave us, among other things, "welfare reform" and the Defense of Marriage Act.

Friday, November 5, 2010

More conservative state supreme court judges could hurt LGBT family law

By now everyone knows that the three Iowa Supreme Court justices up for a retention election all lost their bids to remain on the court, the result of a coordinated, highly financed campaign to send a message against their vote for marriage equality. In a segment on Democracy Now this morning, Adam Skaggs of the Brennan Center for Justice puts the Iowa vote in the larger context of judicial elections across the country. His report on the funding of state court judges elections is a sobering look at both the present and the future.

There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts. I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.

Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.

It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.

This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.

Monday, November 1, 2010

Vermont Supreme Court agains rules in Janet Jenkins' favor

In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.

The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:

We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.

Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.

The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."

At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.

Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.

The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.

I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.

I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.

I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.

But my heart still goes out to Isabella.