Sunday, December 26, 2010

Let's keep some perspective on the DADT victory

I'm against discrimination as much as the next gay person, so of course I am pleased that DADT will soon be history. But my enthusiasm is tempered. The two most visible items on the gay rights agenda have been the military and marriage. The demand is so simple to articulate: let us in. I criticize relentlessly the problem with a "let us in" approach to marriage. I do it in my book, and in this blog, and every chance I get. Organizing legal consequences around marriage - making marriage an on/off switch that determines who is in and who is out - is bad family policy and leads to bad results for many people, including many gay men and lesbians. The demand for access to marriage too often glorifies the importance of marriage, often making less space for families and relationships that do not fit the marriage model. Marriage equality rhetoric nevers focuses on what's wrong with marriage, as though the only thing wrong with it was its exclusion of same-sex couples.

Well a "let us in" approach to the military too easily overlooks what's wrong with the military and with US military policy. The poster children for repeal have been those men and women who profess deep loyalty to the military mission, wherever it might be. Discharged servicemembers never claim they want to return to the military to change anything about it, other than its exclusion of lesbians and gay men.

As far as I can tell, the only LGBT rights group in the country to temper its delight at DADT repeal is Queers for Economic Justice, which reminds us that "it is immoral that the military is the nation’s de facto jobs program for poor and working-class people." Read its entire statement here.

Thursday, December 23, 2010

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.

Tuesday, December 21, 2010

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month). The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them. This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son. The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents. The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”
This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support. These are cruel results.

I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am. There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

Friday, December 17, 2010

When lesbians conceive through sexual intercourse, different legal issues arise

We don't discuss it much. It confounds notions of fixed sexuality and fidelity. But sometimes when a lesbian couple wants a child one partner conceives through sexual intercourse. Relatively speaking, it is cheap and reliable. But it alters the legal context of everything that follows. In Quebec, the law explicitly recognizes that assisted reproduction can include reproduction through sexual intercourse if the understanding is that the man will not be a father and is engaging in the sex act to allow the woman (or the woman and her partner) to be the only legal parent/s of the child. The impetus for this unique construct was the desire to make it as easy as possible for lesbians to have children and to shield them from the discrimination and cost of using fertility services. No law like that exists anywhere in the United States (or the rest of the world as far as I know). In a handful of cases here where a man and woman (lesbian or not or unknown) have made an agreement that only the woman would be a parent and that the man was assisting her through "artificial insemination by intercourse," no court has ever upheld the agreement. If it gets to court, the man has legal rights and responsibilities.

Well, a case decided this week in Minnesota throws some daylight on this form of conception used by some lesbians. A lesbian couple identified in the court's opinion as J.M.J. and L.A.M. arranged with J.L., J.M.J.'s ex-boyfriend, that he would conceive a child with J.M.J. and then consent to the child's adoption by L.A.M., thereby terminating his parental rights. And that's what he did. L.A.M. became the legal parent of the twin girls born to J.M.J.

First thing to point out is this. Legally speaking, this method of family formation should work out fine any place that allows second-parent adoption. A biological father can consent to his child's adoption by the mother's new husband, thereby terminating his parental rights. All courts are familiar with this practice. The adoption must be in the child's best interests, but where all the parties agree there is not likely to be any difficulty. What the three people in this case did falls squarely in that category. It's the same process used in second-parent adoptions where conception takes place through insemination with a known donor; donor consents to adoption by bio mom's partner and his rights are terminated. The end.

But it wasn't the end for this lesbian couple, whose relationship ended shortly after the adoption. J.M.J. then married a man (not the bio dad), and several years later she filed an action to vacate the adoptions on the ground that Minnesota does not allow second-parent adoption. (This issue has never been settled by an appeals court, but trial court judges do grant these adoptions.) The trial court ruled against J.M.J. on that ground and also on the ground that she waited too long to challenge the adoption. In the ruling from the appeals court this week, the court declined to address the validity of second-parent adoption in Minnesota and instead held simply that J.M.J. could not challenge the adoption so many years later.

The court also upheld a monetary sanction against J.M.J. and her lawyer for bringing a baseless action. Not only was she time-barred from challenging the adoption, but her challenge included a claim that the court was defrauded because it was not told that conception took place through sexual intercourse. There was a statement in the adoption petition about alternative insemination, but it also said the donor was unknown, yet it named J.L. and he fully participated in the adoption action. So the appeals court said the trial judge did not rely on any fraudulent representation and, further, that it made no legal difference how the children were conceived, and that J.M.J. herself perpetrated any fraud and could not now claim that as a basis to vacate the adoptions.

On another factual but legally insignifcant note, J.L. did play a role in the children's lives, even though he was not their legal parent. This isn't uncommon. One reason some lesbian couples use known donors is that they want the man involved in the child's life to some degree; they just do not want him to be a legal threat. A second-parent adoption removes the legal threat, and this kind of arrangement has been working out fine in many families for more than two decades. (The court ruling refers to a recent affidavit signed by J.L. but does not say who offered it in the trial or which side he supported).

So this court ruling is a window we don't often see into some lesbian family practices. They are certainly not the practices that form the picture of lesbian families in same-sex marriage cases. Of course the one practice we do see all too often that is present here is the badly-behaving bio mom trying to get rid of her child's other parent. Fortunately, this one loses.

Wednesday, December 15, 2010

Gay semen donor obtains parentage order ... then tries to get out of paying child support

It's a common story. Lesbian couple asks gay friend to be a semen donor. They agree he will not be a parent, won't have his name on the birth certificate, but will be in the child's life -- somewhat.

In Curtis v. Prince, a case decided by an Ohio appeals court last week, this scenario went bad...twice. Laura Prince, her partner Vicki Griffin, and their friend, Robert Curtis, signed an agreement to such an effect (although there was no agreement in the record...). But within months of the child's July 2002 birth, Curtis sought and obtained a parentage order. We're not told in this opinion how or why this happened. Curtis was also ordered to pay child support, but he appealed that part of the order succesfully. (No indication whether Prince sought the support or whether the child support agency sought the order; no indication for that matter whether Prince was on public assistance, in which case the child support agency would go after a paternity order on its own to recoup support. And no mention of Prince's partner, Griffin.)

Then Curtis moves to Florida and has nothing to do with the child, and then in 2008, the child support agency "on behalf of Prince" again goes after Curtis for support. (I put "on behalf of Prince" in quotes because that's how it's put in the opinion and I cannot tell whether Prince asked the agency to get child support for her or whether Prince was on public assistance and so she was required to cooperate in getting support but the state is going to keep the money.) Anyway, now Curtis wants to use Ohio's donor insemination statute to say he's not a father because the child was conceived through donor insemination! The trial court bought it, but in this ruling the appeals court said the 2002 parentage order was final and Curtis couldn't get out of it now.

The appeals court seems a tad sympathetic to the trial court's attempt to keep Curtis from paying support. It says, "In light of the personal relationships in place at the time of the child’s conception, the trial court’s attempt to create an equitable result is understandable." Trouble is, I can't figure out what's equitable here. I would oppose Prince and the state going after Curtis based on his biological connection to the child. A semen donor should not be considered a parent absent a written agreement saying he is, and it looks like the contrary agreement existed in this case. But it looks like Curtis broke the agreement by seeking a parentage order, then tried to get out of child support but started to ask for visitation and then changed his mind and moved away. There is no mention of whether he then had anything to do with the child for six years, until the recent child support action.

Questions. What were the facts when Curtis filed for parentage? Prince didn't appeal the parentage order, but maybe she couldn't afford to (later on it's clear she had no lawyer); or was there some other reason? What happened to Griffin? Did Prince expect her to be around to help raise the child and did she split leaving Prince with financial responsiblity she could not bear alone? Did Prince seek support from the only plausible source of money? Did she feel justified because Curtis had broken the agreement first? Had Curtis played any role in the child's life all these years?

I don't know the answers, but I do know this. Legal parentage has consequences. I can't imagine how Curtis got out of the support order the first time around. The opnion says the trial judge in 2003 ruled that Prince had waived her right to support. But it makes no sense that her side of the agreement was upheld but not his. This is one strange case.

Tuesday, December 14, 2010

Indiana rules against nonbio mom...might be the right result but the wrong reasoning

Indiana has allowed second-parent adoption since at least 2004. (In re K.S.P.). That's part of the background to M.S. v. C.S., a case decided by the Indiana Court of Appeals last week. C.S. is the biological mother of a daughter, S.S, conceived through donor insemination. M.S. was C.S.'s partner when the child was born in 2003 (and for several years before). Instead of filing a second-parent adoption, in 2007 the couple filed a petition for joint legal custody, naming C.S. the primary physical custodian and giving M.S. parenting time (a/k/a visitation). The court granted the order in September 2007.

In April 2009, the couple's relationship ended, after M.S. physically attacked C.S. in the child's presence. A dispute about the child followed, and last week's decision established a number of legal principles. The court found the 2007 custody order void as a circumvention of the state's adoption laws. I can't help but wonder who gave this couple legal advice. Perhaps there was something in their background that made a lawyer believe an adoption would not be granted after a social worker completed a home study. On the other hand, had this couple lived in the District of Columbia (at least under current law), the child would have had two parents from birth based on the couple's consent to the insemination of C.S. with the intent that both women would be parents of the child. (I'm assuming that was the case....why else go to the trouble of getting a court order establishing a legal relationship between the partner and the child?) In other words, M.S. would not have needed to adopt a child that was hers already.

M.S. did argue that she was S.'s legal parent because of her consent to the donor insemination. She asked to be treated the same way a husband would be treated who consented to his wife's insemination. And here is an interesting point about Indiana: It has no statute saying that a husband is the father of a child born to his wife, with his consent, using donor insemination, yet the Indiana Supreme Court held in 1994 that a husband was, indeed, a father under those circumstances. So this court could have been as creative in its reasoning and found that M.S. was a parent. But the court got around that by saying that M.S. didn't raise the issue in the trial court and so could not raise it on appeal. That does leave the door open for a nonbio mom to raise the issue in the future, but I wouldn't count on it being a winning argument.

Finally, the court accepted the possibility that M.S. could get visitation rights even though she was not a parent and even though the previous court order was invalid. The court cited a 2005 Indiana Supreme Court ruling leaving open that possibility when two women raising a child together split up. But since M.S. could only get visitation rights based on the best interests of the child, the court affirmed the trial judge's ruling that such visitation would not be in S.'s best interests. The trial judge held a hearing, and the record showed that M.S. pushed C.S. in the presence of the child and said to S. that she was going to "f***ing kill your mother."

So the good news, sort of, is that M.S. got a hearing based on the child's best interests. It's hard to be sympathetic to M.S., given her actions. But here's what leaves me uncertain. Had M.S. been a legal parent, the case would have proceeded differently. A court would have made a real effort to address the relationship as a whole rather than one possibly isolated event. (Maybe it wasn't isolated, but we don't know that). Fathers get supervised visitation if there is a concern for a child's safety. They don't get cut out entirely. This girl was 6 years old when the couple split up, and if she had two parents then losing one entirely should not be done lightly. On the other hand, if M.S. is the abusive batterer she might be, then she should lose, but so should a father in that situation, and that never happens.

Two wrongs don't make a right, and children of abusive lesbian mothers need protection. I'm left wishing I had more facts. But I'm also clear that the dispute should have been treated as one between parents, and that it surely was not.

Tuesday, December 7, 2010

The heart of the Perry case and why LGBT families should not distance themselves from single mothers

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

Friday, December 3, 2010

New Mexico court ruling on lesbian mom likely to have limited impact -- but it's still dead wrong

New Mexico is the only jurisdiction other than DC that grants parental status to a person (male or female; married or not married) who consents to a woman's insemination with donor semen with the intent to parent the child thereby conceived. That means that for cases beginning this year, where conception takes place through donor semen, both members of a lesbian couple are a child's parents if they have both signed an agreement concerning the insemination or if they have both received the child into their home and held the child out as their own.

This law was not passed in time to help Bani Chatterjee and her daughter, who this week lost their right to a parent-child relationship in a 2-1 ruling from the New Mexico Court of Appeals. And because the child was not born to Chatterjee's partner, but was rather adopted by her, the law would not have made Chatterjee a parent in any event.

The court has all the facts it needed to consider Chatterjee a parent. Chatterjee and her partner, Taya King, were together for 15 years, beginning in 1993. In 2000, they travelled to Russia together to adopt a 13-month-old child, but only King completed a legal adoption since same-sex couples cannot adopt there and because there was prejudice against Chatterjee on the basis of her race. For the subsequent 8 years, the couple raised the child together as two mothers. Then Chatterjee moved out and, after an initial period of allowing visitation, King stopped all contact. Chatterjee filed a petition to establish parentage.

All three judges agreed that the New Mexico parentage statute did not allow Chatterjee to be declared a parent. Its previous version of the Uniform Parentage Act allows a man to be presumed a parent if he "openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child." It also reads that "insofar as practicable, the provisions of the [UPA] applicable to the father and child relationship apply" to determining a mother-child relationship. Since Chatterjee could meet that test, she asked to be declared a parent. It may be understandable for a court to hold that these provisions do not apply at all to a child adopted by one parent. But the majority went further and said they would not apply to any woman's attempt to be declared a parent. This is a ruling in direct contradiction to the California cases interpreting identical language. But because New Mexico's current UPA explicitly makes a woman a parent of her partner's biological child if the couple consented to donor insemination, this section of the court's reasoning is superceded by the new statute for any child born to a woman's partner and conceived using donor semen.

The majority then dismissed Chatterjee's claim to parentage based on various equitable theories. This is where the dissenting judge parted ways. Even though the New Mexico appeals court ruled in favor of a nonbio mom in 1992, becoming one of the first states to do so, this court decided that neither equitable nor psychological parentage gave Chatterjee the standing to request custody of her child. The dissenting judge reasoned that if Chatterjee could prove the elements of psychological parenthood, including King's fostering of a parent-child relationship between Chatterjee and the child, then Chatterjee should be able to argue for custody.

Chatterjee and her child do get a consolation prize. All three judges agreed that she could request visitation rights and that visitation rights could be granted without violating King's constitutional right to raise her child. King relied on the Supreme Court case of Troxel v. Granville, which overturned a ruling granting visitation rights to grandparents. The New Mexico court, however, distinguished that case on its facts and rightly held that Troxel does not require a court to find a legal parent unfit before it awards visitation to another party.

The good news in the case, as a practical matter, is that the ability to get court-ordered visitation gives a mother in Chatterjee's position enough bargaining power to get an agreement with a legal parent for a continuing relationship with the child. The states that preclude any court-ordered visitation give the legal parent the unilateral power to cut off all contact, even in a case like this where the child is 10 years old and has been raised by both women since her adoption as a toddler.

And, as I said at the beginning of this post, for lesbian couples in New Mexico using donor insemination, full parentage, not just access to visitation, is established for a nonbio mom. For those who adopt, however, as this couple did, this case will remain the law unless Chatterjee appeals to the New Mexico Supreme Court and gets a reversal.

Wednesday, December 1, 2010

Illinois legislature passes civil unions: different-sex couples also eligible

In yesterday's post on the DADT repeal recommendations, I noted that the report opposed creating a "same-sex relationship" status for gay servicemembers, in large part because it would appear unjust and unequal to differentiate between same-sex and different-sex committed couples. Well the Illinois Senate has just approved civil unions there, and the governor will sign the bill, and when it becomes law the status will be available to both same-sex and different-sex couples. Only Nevada and the District of Columbia have created a status that is also open to different-sex couples (both jurisdictions called the status "domestic partnership" but because it extends to those who register virtually all of the state-based legal consequences of marriage it is the same as what others states call a "civil union."). The Hawaii civil union bill which was vetoed earlier this year by the state's Republican governor also included different-sex couples.

Colorado allows different-sex couples to register as "designated beneficiaries" (as well as any two unmarried people), and that gives some of the important legal consequences of marriage, like the right to inherit without a will and the right to sue for wrongful death, but it gives nowhere near all the legal consequences of marriage. (I like this status because those who sign up can choose their own legal consequences.) California and Washington also allow different-sex couples to register, but only if one partner is 62 or older. (This is supposedly to protect benefits that might be lost if a recipient remarried, but the specific age chosen - 62 - does not actually correspond to any legal consequence of remarriage, so go figure...)

If Illinois creates a critical mass and is a precursor of things to come, I say it's about time. We may well have come full circle to the impetus behind the first domestic partner benefits implemented in the 1980's; those benefits were available to gay and straight couples because their purpose was to make marriage unnecessary to protect the well-being of a loved one. When Vermont implemented the first "civil union" status but restricted it to same-sex couples, heterosexual feminists rightly complained that they were being inappropriately forced into marriage.

Same-sex only civil unions send two messages: marriage is really special and different-sex couples should be required to marry to get any recognition; and same-sex couples are less worthy and can be cabined in a status developed just for them. I detest both these messages.

After Nevada passed its domestic partnership law, I spoke with some of the key players in that political process. They all said that including different-sex couples was virtually a given, that allowing heterosexuals access to domestic partnership was important to garner more widespread support and represented the value of equality. To me, it's all about making marriage matter less as a legal status, and that's a good thing.