Wednesday, January 27, 2010

Kentucky Supreme Court recognizes nonbio mom

In one of the best and most straightforward court opinions I have ever read on the subject, the Kentucky Supreme Court last week ruled, in a 4-3 decision, that a nonbiological mom was entitled to joint custody of the son she planned for and raised with her former partner. The opinion, Mullins v. Picklesimer, reads as a beacon of light shining through the obfuscation courts all too often bring to the actual lives of lesbian couples and their children.

Arminta Mullins and Phyllis Picklesimer had a baby. They selected a semen donor who resembled Mullins, and Picklesimer was inseminated and bore the child. Mullins and her mother were present at the child's birth. The child was premature and spent two months in neo-natal intensive care. Both moms attended him. They named him Zachary Alexander Picklesimer-Mullins. Once Zachary came home, both moms took leave to care for him, and when they both returned to work, Mullins' mother cared for him while the moms were at work. Both women provided care and financial support. The child called Mullins "momma." He considered both women his parents, even according to Picklesimer's testimony.

When the child was less than a year old, the couple filed custody papers granting a judgment of custody to Mullins on the basis that she was the child's de facto custodian. The couple split up a few months later, and they continued to co-parent for several more months, until Picklesimer refused to allow Mullins to see the child. Mullins filed a petition for joint custody.

So. It turned out that Mullins did not meet the statutory criteria for a de facto custodian because Kentucky does not recognize that status if the parent and de facto parent are actually parenting together. Therefore, the court order the couple had obtained was invalid. Nonetheless, the Kentucky Supreme Court found that Mullins was entitled to joint custody.

First, she had standing (which means the ability) to file because the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in Kentucky and almost all states, allows "a person acting as a parent" to file, and it defines that to mean a person who "has [or within the last six months has had] physical custody of the child and .... claims a right to legal custody under the law of this state." The court interpreted this to permit standing in a shared custody situation; Mullins did not have to have physical custody to the exclusion of Picklesimer. Because so many states have the UCCJEA, this portion of the case has the potential for impact beyond Kentucky. The court was clear that the specific facts in this type of family situation differed from circumstances involving nonparents such as a grandparent, babysitter, or boyfriend or girlfriend of the parent.

Turning to the statutory standard for awarding custody to Mullins, the court said that a parent has a superior right unless the parent is unfit (not relevant here) or "has waived [her] superior right to custody by clear and convincing evidence." And, in the most significant part of the opinion, the court ruled that the law of waiver of superior custody rights includes partial waiver that gives a child "another parent in addition to the natural parent." "In this case," the court wrote, "Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins....What Picklesimer waived...was her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child."

The court continued with what might be some of my favorite sentences ever in an opinion on this subject. It said the doctrine of partial waiver was both legally justified and "necessary 'in order to prevent the harm that inevitably results from the destruction of the bond that develops between the child and the nonparent who has raised the child as his or her own. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody." The focus, according to the court, should be on "whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child."

The Kentucky trial court had awarded Mullins joint custody. The intermediate appeals court had reversed. The effect of the Kentucky Supreme Court's decision reversing the appeals court is that the trial court order goes into effect. Zachary has his two moms back.

This opinion is stunning. The first obvious reason is that it is from Kentucky, a state not known for being gay-friendly. Beyond that, however, it seems to me that the majority totally understood the family this couple created, and it understood it without the friend-of-the-court briefs customarily filed in such cases by LGBT legal groups and mainstrean mental health organizations like the American Psychological Association. The biological mother created a two-parent family; she did cede part of the right she gets from her biological connection to the child to her partner. She did it every bit as much as a married woman who has a child with her husband using donor sperm. The court specifically said that Mullins cared for Zachary "in the capacity of a parent." The child, although only 18 months old when the trial took place, knew he had two parents. And so did the majority of the Kentucky Supreme Court.

In other cases, even when the non-bio mom has been successful, the courts often hedge. They come up with a list of factors the non-bio mom must meet. They act squeamish, ever guarding against the possibility of opening the door too wide to actual non-parents. Sometimes they qualify the victory by allowing only visitation rights, not custody. This court saw exactly how this family was created and functioned and was not at all concerned about its ruling going beyond a family so obviously created in this fashion. One of the dissenting judges expressed the fear that step-parents, even after short marriages, would be able to contest custody of their step-children. I don't see that at all. The majority describes this family first by the couple's decision to bring a child into the world through donor insemination and to parent that child together. The majority makes its ruling seem like simple common sense. Which it is.

Tuesday, January 26, 2010

Another Florida judge declares the state's gay adoption ban unconstitutional

The judges who handle adoptions know a lot about the needs of children. I am sure when Miami-Dade Circuit Judge Maria Sampedro-Iglesia reviewed Vanessa Alenier's petition to adopt an infant cousin, she knew the placement was in the child's best interests. The only thing standing between the judge and doing the right thing for that child was Florida's total ban on any adoption by a person who is "homosexual." So the judge had to declare the ban unconstitutional, which she did earlier this month, according to a front page story in the Miami Herald.

I've written about two similar trial court rulings in the past year and a half, one of which is on appeal, with a ruling expected any day.

The most recent case began when Vanessa's aunt called her the day after the child was born. The child had been taken by the Florida Department of Children & Families almost immediately and was hospitalized until he was nine days old. At the trial, the judge heard from Vanessa, her aunt, her uncle, her partner, her partner's mother, a neighbor, a family friend, the child's pre-school administrator, a child psychologist and a social worker. All supported the adoption.

The judge's written order includes the following statements which she made from the bench after hearing the testimony:

"[It] sums up the whole case...the only thing the State or anybody should be looking at, the best interests of the child and how he is loved."

The judge declared the ban "unconstitutional on its face" which means that she found it unconstitutional in all circumstances. It is possible to declare a law unconstitutional as applied to a particular factual situation. So the judge could have limited the ruling to a situation where the child will be adopted by a relative. That this judge went as far as she did suggests to me that at least some Florida judges who actually deal with children who need to be placed for adoption are sick of being blocked from serving the best interests of those children by a law motivated by political ideology and hate. The written ruling states that "there is no rational connection between sexual orientation and what invariably is or is not in the best interests of a child."

Congratulations are due to Miami lawyer Elizabeth Schwartz, who was counsel in one of the previous cases in which a judge also declared the law unconstitutional.

Monday, January 25, 2010

Perry v. Schwarzenegger -- week three preview -- the defendants will make it about gender

The argument that children need to grow up with a father is not an argument aimed primarily at lesbian couples raising children. It's the argument at the core of the right-wing "marriage movement" whose agenda includes federal funding for a "marriage promotion" industry, restrictions on no-fault divorce, and increased stigma for births outside marriage. The primary tenet of this movement is that the decline of life-long marriage is responsible for all our social problems, a point of view that deliberately ignores poverty, income inequality, poor education, and inadequate health care, for example, as root causes of poor outcomes for children.

This movement gained traction throughout the 1990's, before any state allowed same-sex couples to marry or even enter civil unions. As the movement for marriage equality grew, it challenged opposition from these "marriage movement" organizations by saying, essentially, if you think marriage is so important for children then you should support same-sex marriage as better for the children those couples raise. To continue opposing same-sex marriage, these groups had to shift their argument from "marriage is crucial to the well-being of children and society" to "heterosexual marriage is crucial to the well-being of children and society," and to do this they had to talk about how much gender matters. It's not marriage, they now say, but marriage between a man and a woman. And then they refined the argument even further to stress the importance to a child of being raised by his/her married biological parents.

So as the defenders of Proposition 8 present their witnesses this week, expect testimony on gender differences to play a significant role. That makes the study published last week by Tim Biblarz and Judith Stacey especially timely. In How Does the Gender of Parents Matter?, published in the February issue of Journal of Marriage and Family, these two sociologists review all the research used to support the proposition that families headed by married, biological parents are best for children, and they reach a different conclusion. They conclude that the best scientific evidence shows instead that "compared to all other family forms, families headed by (at least) two committed, compatible parents are generally best for children." This is true, they conclude, "irrespective of parental gender, marital status, sexual identity, or biogenetic status."

They write, "Current claims that children need both a mother and father are spurious because they attribute to the gender of the parents benefits that correlate primarily with the number and marital status of a child's parents since infancy. At this point no research supports the widely held conviction that the gender of parents matters for child well-being." (emphasis mine). This is exactly what renowned child development expert Michael Lamb testified to last week at the Prop 8 trial. Expect pro-Prop 8 witness David Blankenhorn to testify how much gender does matter, although I wonder how he will qualify as an expert. He is certainly a writer and an advocate, but he is not a social scientist or mental health clinician or researcher. I am truly looking forward to his cross-examination, and I expect this latest Biblarz/Stacey article -- from a peer-reviewed professional journal -- to play a prominent role.

Wednesday, January 20, 2010

When a semen donor teams up with a bio mom...

I write often about the cases in which a legally recognized mom (through birth or adoption) seeks to deprive her children of their other mom, her former partner. Arguments against the second mother invariably invoke a narrow definition of "parent" and sometimes, as in the highly-publicized Miller-Jenkins case, are downright homophobic.

But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)

Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)

Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:

Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.

Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.

In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.

The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.

For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.

Saturday, January 16, 2010

Perry v. Schwarzenegger -- week one -- the "beyond marriage" perspective

The last time we saw a full-blown trial on the constitutionality of a ban on same-sex marriage it was 1996 in Hawaii. The Hawaii Supreme Court had ruled that the state would need to show a "compelling state interest" in excluding same-sex couples from marriage and that the exclusion was necessary to achieve that interest. At the trial on remand, the state claimed that children do best with their married biological mother and father. After hearing the evidence, including the state's expert witnesses -- all of whom agreed that same-sex couples could be good parents -- the trial court ruled that the state had failed to show that banning same-sex marriage furthered the state's interests in providing for the welfare of children. The opinion is a great read. (The people of Hawaii later passed a constitutional amendment giving the state legislature the right to ban same-sex marriage, which it promptly did. That made the litigation moot.)

Since then, the state courts ruling on the constitutionality of the same-sex marriage ban have reviewed evidence in writing -- affidavits or deposition transcripts from plaintiff couples and from experts.

So the trial that began this week in a San Francisco federal courtroom is unusual, and not only because conservative lawyer Ted Olson is one of the attorneys for the plaintiff couples. The judge is hearing actual testimony, including cross-examination, of individuals and expert witnesses. After the US Supreme Court blocked broadcast of the proceedings (a terrible and unprincipled ruling), even into courtrooms in other jurisdictions, the best way to follow the trial is through one of the numerous blog post summarizing each day's proceedings. My favorites are the one by National Center for Lesbian Rights legal director Shannon Minter and From the mainstream press, I like the one by San Jose Mercury News reporter Howard Mintz.

Early in the trial the judge raised the question I have discussed in an earlier post: could the state eliminate the word "marriage" and call the legal status for all couples something different? (My favorite choice: civil partnership). There's no equal protection violation if the name of the status is the same for both gay and straight couples, so the answer to the question turns on whether there is a constitutional right to the word marriage, something I dispute.

Anyway, I was surprised to see the issue come up immediately in this trial. Judge Walker interrupted Olson's opening statement to ask (among other things) if California could get out of the marriage business altogether and just provide domestic partnership for all couples. He pressed the point through additional questions, even though Olson said the state would never "get out of the marriage business."

Subsequently, according to, (scroll down to 3:20 pm update), the judge asked one of the plaintiffs, Sandy Stier,

"If the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy: I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I'd not have to worry about access to it because no one else would either."

Note that this is not the common answer from proponents of marriage equality. Yet it is precisely the glorification of marriage that I find so disturbing about same-sex marriage advocacy. On the same day of testimony, Sandy's partner, Kris Perry, (scroll to 2:46 pm)testified that:

"I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not."

And in what I find the most disturbing portrayal of marriage, plaintiff Jeff Zarrillo said (scroll to 11;34 am):

"We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. It would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family."

Of course this is completely in keeping with the argument that children do best with married parents, but that's an argument with its origin in opposition to same-sex marriage (Just look at the Hawaii litigation, for example.) Back when marriage equality was not a prominent item on the gay rights agenda, LGBT rights advocates opposed that reasoning, arguing that children do just as well with a gay or lesbian parent or with a same-sex couple. Now in furtherance of marriage equality, advocates assert that children with same-sex parents will be better off if those parents are married. Let me tear my hair out now. The tangible benefits of having two parents are not supposed to turn on whether those parents are married. I've written about this at length.

Many folks may think that the goal of marriage equality is important enough to win with any argument, and if glorifying marriage and/or the superiority of married parents does the trick then that's fine. I disagree. Equality is an important legal doctrine, and gay couples deserve it. So as long as marriage exists we should have access to it. But an argument that marriage is superior is fundamentally an argument that hurts the vast number of LGBT people (and striaght ones!) whose families are organized in other ways. It is also a license to discriminate against the unmarried once same-sex couples do win the right to marry. I cannot get behind that.