Monday, December 26, 2011

Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg

A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years.  The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)

The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible."  The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights.  Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child.  There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child.  (He changed his mind and tried to get parental rights.)  The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born.  The court determined that TMH had a constitutionally protected right to be a parent of her child.

The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case.  The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.

The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation.  But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.

The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child.   The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:
Yes, I know, as did the able trial judge, that the best interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think that it should be. In my view it would be wrong to deprive the child of the benefits - emotional, monetary and supportive - of the relationship to which that child should be entitled with both the appellant and the appellee. Both of the adult women in this case are parents to K.T.-H. in the real sense of the term. I think that we need to find a way to redirect our focus in cases of this kind so that best interests becomes part of the decisional matrix.
The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.

I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one.  That's true, when a child has actually had two functional parents.  I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent.  Plenty of lesbians have children as single parents.  Their family structure also needs to be protected.

Friday, December 23, 2011

Colorado appeals court applies parentage statute to nonbiological mother married to father

There are many cases arising in the context of a wife who gives birth to a child conceived in an extramarital relationship.  Courts have often had to determine whether the biological father can challenge the husband's parentage.  The US Supreme Court, in the famous Michael H. v. Gerald D. case, ruled that a state need not allow the bio dad to assert parentage, even if he developed a relationship with the child.  If the mother and her husband want to raise the child as their own, the Supreme Court ruled, that does not violate the bio father's constitutional rights.

Well a case decided yesterday by the Colorado Court of Appeal, In re S.N.V., raises a similar issue in what I believe is a first-of-a-kind case.  SNV was born in 2007 to a woman who had sexual intercourse with a married man.  The man and his wife claimed that this was a version of a surrogacy arrangement and that the intention was always that the married couple would raise the child.  They claim they attended the bio mom's doctor's appointments, paid for her medical expenses, and have been the child's sole caretakers.  The bio mom claims she had an intimate relationship with the father and that she participated in caring for the child for the first two years, until the father cut off contact.  Then she filed a parentage action to be declared the child's legal mother and to obtain custodial rights.

The wife then filed a parentage action as well.  Her basis for asserting parentage is the Colorado Uniform Parentage Act, which states that a man who receives a child into his home and holds the child out as his own is a presumed father.  (In 2010 I wrote about a case applying this statute to a nonbio dad and noted that it boded well for nonbio moms).  She argued that the statute should be applied to a woman as well as a man, and the court accepted her argument.  The statute says that any interested party can bring an action to determine a mother-child relationship and that "insofar as practicable, the provisions of the [UPA] applicable to the father and child apply."  Another part of the statute says that "in case of a maternity suit against a purported mother, where appropriate in the context, the word 'father' shall mean 'mother."  Taken together, the appeals court determined that the wife could proceed with her parentage claim.

The bio mom could of course also assert a parentage claim.  The court noted that in a previous dispute between a husband and a bio dad the Colorado Supreme Court had determined that the competing claims should be resolved according to the best interests of the child standard.  Therefore, the appeals court remanded this case for a determination of maternity.  In addition to the best interests standard, the court said that
We do not suggest that, in determining best interests, a court must treat statutory presumptions and biological relationships as equals. Nor do we suggest that biological relationships are always the same. We simply note that these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA. 
What does this mean for same-sex couples raising children?  It means, as I predicted in my 2010 post, that a nonbio mom in a lesbian couple who plan for and raise a child together will be a presumptive parent.  It also means that the holding out provision is likely to create a parentage presumption for a nonbio dad raising a child born to his same-sex partner through surrogacy and a nonadoptive parent raising a child legally adopted by his/her partner.  Note that the holding out provision does not depend on marriage; this nonbio mom could have filed her parentage action even if she and the father were raising the child as an unmarried couple.

I tend to be more supportive than many gay rights family lawyers of the parental rights of a woman who bears a child. (I think "surrogates," gestational or traditional, should be able to change their minds upon the birth of the child; I do support surrogacy when practiced by agencies who screen surrogates well, and provide counseling and legal services, so that they weed out those likely to change their minds. Fortunately, many agencies operate in this manner.)  But once a child is born and the birth mother allows another couple to raise the child as their own, in my opinion she cedes a parentage claim based on biology alone.  It looks like that's what happened here.

Wednesday, December 21, 2011

Wisconsin first grade teacher sets great example for dealing with gender variance among children

Thanks to Shannon Minter for alerting me to this heartwarming account of a Jackson County, Wisconsin teacher's experience with a gender variant first grader.  Melissa Bollow Tempel, in "It's Okay to be Neither," sets an amazing example of how to deal with gender issues in the classroom, including a girl, Allie, who was often taken as a boy.  Equally heartworming, the girl's parents were accepting of their child.  When the teacher called home to ask if she should correct children who said Allie was a boy, Allie's mom asked her what she wanted.  (She wanted the teacher to tell them she's a girl).

There's a growing number of custody disputes between divorced parents who disagree about how to deal with a gender variant child, including children who meet the diagnostic criteria for GIDC (gender identity disorder - children).  Judges are inclined toward the parent who wants to discourage gender variance.  I'd like this Wisconsin teacher's approach to gain ground among teachers and all who deal with children, in the hope that judges will catch on.

Friday, December 16, 2011

New Jersey judge awards full custody of twins born through surrogacy to gay father

The New Jersey case of A.G.R. v. D.R.H. & S.H. is a story of much that can go wrong.  At the center of the case are two twin girls, born in October 2006.  There has been litigation about their parentage and care since they were five months old.  The girls were born to AGR, who was a gestational surrogate for her brother, DRH, and his partner, SH, who is the children's biological father.  AGR filed for custody of the children, and two years ago the trial judge ruled that the documents AGR signed agreeing to be a gestational surrogate were unenforceable in New Jersey and that she is the children's legal mother.  Twenty years ago, in the famous Baby M. case, the New Jersey Supreme Court voided a traditional surrogacy contract as against public policy.  Since then, no one seeking an enforceable surrogacy arrangement would make such arrangements in New Jersey, but that is what these three people did.  The men argued that their situation was distinguishable because it was gestational surrogacy, but the judge didn't buy it.  For the past two years, the children have gone back and forth between the two homes.

Well this week the same judge awarded full legal and physical custody of the children to SH.  He ruled that joint custody was inappropriate because the parents could not agree, communicate, or cooperate.  AGR received generous and fairly typical visitation rights -- every other weekend, three hours on a weekday evening, four weeks in the summer.

One of the things I find most interesting about this case is the plan the men always had that the gestational carrier AGR, aka DRH's sister, would play a large role in the children's lives.  It reminded me of the scenario that is more typically of lesbian couples who use a known donor to conceive; sometimes they expect him to be involved with the child but not to be a parent with legal rights to challenge their decisions.  This is less common among gay male couples using a surrogate, although Judith Stacey's research on gay men in southern California (reported in her most recent book, Unhitched), did uncovered one such family, where the children had relationships with both the gestational surrogate and the egg donor.  SH testified that AGR was expected to be a "special aunt."

Some facts emerged in this opinion that were not in the earling ruling.  I learned in the third paragraph of this 15 page single spaced opinion that AGR was a lesbian.  When she first explored being a surrogate for her brother and his partner in 2004 she was in a four year relationship with a woman that broke up about a year later, shortly before she began the fertility treatments in preparation for the surrogacy.  In 2008, however, she returned to her earlier Baptist faith, renounced her lesbianism, and began espousing negative views of both surrogacy and homosexuality.  (AGR is represented by the same lawyer who represented the birth mother in Baby M., who is also well known for his litigation and legislative work against abortion; I don't see evidence of Liberty Counsel or Alliance Defense Fund's involvement in this case, but the claims of ex-gay parents are a staple in their dockets.)

The judge was deeply concerned that AGR's negative views would have an adverse impact on the children.  AGR was living with her mother (who is of course also SRH's mother), and she, too, had very negative, biblically-based views of homosexuality. AGR said that if she got custody she would enroll the chldren in a Catholic school and take them to a Baptist church. At one point the judge referred to the twins as "special needs" children because of their unusual method of conception and family structure.  The judge held that SH always looked at things from the perspective of the children's best interests.  On the other hand, he found that it was "inevitable" that the strong views of SH and her mother, including that SRH would burn in hell, would have a damaging effect on the children and would make them feel ashamed of themselves.

The plaintiff and defendants each called an expert witness and there was also a court appointed expert, who supported sole custody for the father and his partner (and said it should happen as quickly as possible).  Dr. David Brodzinsky, a well-known expert on adoption who strongly supports LGBT parents, testified for the fathers.  I was very disturbed by one thing he said.  The judge wrote that he testified that "being genetically related give SH an advantage over plaintiff because children relate better to genetic parents."  What?? I'd like to know what he based this on.  I've never heard this view espoused in all the cases between bio and nonbio moms, nor has any court relied on it, so it was pretty shocking to read it here...and from an  expert well known for his work on adoption.

As for the expert for AGR, the judge did not agree with many of his conclusions, but even he said that AGR should not say homosexuality was a sin in front of the children and that taking them to an anti-gay church would be bad for them.  The court appointed expert was deeply disturbed by the impact of AGR's negative views of homosexuality, but he also said something that bothers me -- that SH's two-parent household was better because AGR works during the day (SH was a stay-at-home dad).  This reasoning has been improperly used against divorced moms, gay and straight, when their ex-husbands remarry, and I don't want it in custody decisions about our children.

The judge's findings are so detailed that there is no chance they would be reversed on appeal.  I do not know if the fathers are planning to appeal the finding that AGR is their mother, or if they even can at this point.  When the child at the heart of Baby M. turned 18, she consented to her adoption by her "stepmother" so that her legal parentage could match the family she really had. Perhaps these children will do the same...

Monday, December 12, 2011

California appeals court upholds parentage determination for Colonel in US Air Force Reserves

On Friday, in S.Y. v. S.B., the California Third Appellate District upheld a trial court order that found S.Y. to be a parent of two children adopted by her partner, S.B.  This case is signifcant because S.B. argued that her partner had not "received the children into her home" as required by statute because she maintained a separate residence for almost the entire 13+ years of their relationship.  But the reason S.Y. maintained a separate home was because of the potential threat of Don't Ask Don't Tell to her 30 year career in the Air Force.  I wrote about this case, and the impact of the end of DADT on same-sex couples with children, in September.  The children were 10 and 5 when S.Y. filed a parentage action.  It was two months after she and S.B. split up and a month after S.B. denied her access to the children.

S.Y. had a stellar legal team: Eileen Gillis in Sacramento, who won at trial by building a detailed picture of the ways in which S.Y. was the children's mother and did live with them in their family home which was S.B.'s home, and the incomparable Deb Wald who preserved the win on appeal.

Since the victory in the California Supreme Court in 2005 in the Elisa B. case, a mother's partner who receives a child into her home and holds the child out as her own is presumptively a parent of that child.  Deb Wald pointed out to me with pleasure that it was the Third Appellate District that got Elisa B. wrong, leading to the appeal that created the current law.  Therefore, it's great to see that court in particular look so carefully into the life of this family and completely understand what was going on there.

As often happens, the appeals court had a case involving heterosexuals to build upon in this case.  A court in 2003 had found that a man met the "received" test even though the child never lived with him, because the child visited his home regularly and he provided for her financially.  In S.Y.'s case, she stayed overnight at S.B.'s home (which the court called the family home) three to four nights a week and stopped by on the other nights.  The court described in detail all the parental tasks that S.Y. did and all the financial support she provided.  The opinion quotes the trial court's finding that this was not a situation of a person dating the mother who incidentally cared for the mother's children because of that.  Rather, the relationship between the women lasted longer than it would have because of S.Y.'s commitment to the children.

The moms split up when the first child was about 3 1/2.  The split up last 2 1/2 years, but S.Y. continued parenting all that time (except when S.B. would not allow it), going to S.B.'s home most evenings and every weekend and going on vacations and other family outings together. They were still split up when S.B. decided to adopt another child, and S.Y. did not participate in that decision. But during the adoption process, S.B. asked her to come to Minnesota, where the second child was born, to help take care of the first child while the adoption proceedings there dragged on.  And when everyone returned to California, S.Y. continued to go to the home most evenings and every weekend to be with the children, and she did act as a parent to the second child as well.   The couple reconciled in November 2005, about a year after the second child's birth, and they split up for the final time in July 2009.

Given this non-standard factual scenario, the court might have ruled against S.Y. because there was no joint decision to adopt the second child.  But the court looked at the joint parenting instead.  Similarly, and to me this is the most important part of the ruling, the appeals court said as follows:  "While S.B. may not have intended for S.Y. to obtain any legal rights to the children, the record is replete with evidence that she not only allowed, but encouraged, S.Y. to co-parent both children from the beginning."  This is followed by a long paragraph summarizing all the actions taken by S.B. to make S.Y. a parent.

We talk often of "intended" parents in a way that seems to make intent the touchstone of determining who is a parent.  Certainly our cases and scholarship (including mine) are full of references to the importance of intent. I remember Jenni Millbank, Australia's leading scholar of LGBT family law, arguing vehemently that intent can be too subjective and that it is actions that should count. When a woman consents to her partner's insemination, Jenni would say, the consent is the action that makes her a parent.  Jenni did not agree that the law should require proof on top of the consent that the partner intended to be a parent.

Well I thought of Jenni when I read this part of the opinion.  I have no idea what S.B. intended, but the evidence shows what she did.  And what she did made S.Y. a parent of the children she adopted, complete with Mother's Day cards, incorporation into S.Y.'s extended family, and joint care and financial support of the children.  That is what the children experienced.  The children could not know what was in S.B.'s mind, and it would not have mattered to them if they did.  Children learn that actions speak louder than words.  And actions certainly speak louder than unsaid words, like whatever was in S.B.'s mind.  In the end, this case is important for its ability to see a family home even when one adult had a separate residence; to see consistent parenting in the midst of some instability in the adult couple relationship; and to find facts based on behavior, not thoughts.

Friday, December 9, 2011

Wisconsin courts foil bio mom's attempt to overturn her partner's adoption of the children

Here is another "lesbian bio mom behaving badly" case, and another court --this time the Wisconsin Court of Appeals -- that does not let her get away with it.  (This case was decided in July, but I'm behind on some of my posts and I haven't seen it written about elsewhere).

The case name is Shelly J. v. Leslie W. Lesbian couple, Shelley and Leslie, began their relationship in 1996 and decided to have children together.  Shelly gave birth to one child in 2000 and another in 2002, using anonymous donor insemination.  The couple raised the children together.  Now comes the tricky part.  Many years ago, the Wisconsin Supreme Court ruled that Wisconsin adoption statutes did not permit a biological mother to retain her parental rights once the child was adopted by her partner.  In other words, it ruled that second-parent adoption was not authorized under Wisconsin law.  That case, In re Angel Lace M., did not decide whether two people of the same sex could jointly adoptly a child together.

So...Leslie and Shelly solidified their family as follows: Shelly voluntarily terminated her parental rights, and Shelly and Leslie petitioned to jointly adopt their two children.  The court granted the adoptions in 2004.  Seven years later, Shelly petitioned to set aside her voluntary termination of parental rights and the joint adoption, so she could go back to being the children's only legal parent.  She did this by arguing that the adoptions were not allowed under Wisconsin law.  She even argued that the two attorneys and the judge were working to "subvert the existing law to further a political agenda."

Well, the appeals court did not rule on whether this type of joint adoption is permissible in Wisconsin; there is still no appellate court decision on that question.  The appeals court told Shelly it was too late to make any such claim.  In applying the legal standard for undoing the previous judgments, the court specifically ruled that reopening the proceedings would not be in the children's best interests.  The two women had raised the children since birth, and the trial judge had emphasized that custody and visitation rights of both parents should be preserved.  Shelly made various arguments about whether the court that granted the adoptions had the power to do so, but the appeals court made clear that circuit courts in the state have subject matter jurisdiction to hear actions of any nature.  This of course is in stark contrast to the North Carolina Supreme Court ruling last year that no court in that state ever had subject matter jurisdiction to grant second-parent adoptions.  As a result of that ruling every second-parent adoption ever granted in North Carolina became invalid.

I'll note that this is the second time this year that a Wisconsin appeals court has said a bio mom was too late to challenge a proceeding in which she had participated.  In the earlier case, which I wrote about here, the court left standing a non-bio mom's parentage order.  But that court also ruled that such parentage orders were not permissible under Wisconsin law, cutting off such an avenue for solidifying parent-child relationships when a same-sex couple has a child together.  By not ruling one way or the other on the joint adoption proceeding used by Shelly and Leslie, lawyers, judges, and parents in Wisconsin are left in a state of uncertainty.  This is unfortunate. The trial judge had upheld the theory that two unmarried individuals can petition to adopt a child when that child's parental rights have been terminated.  Courts in other states with similarly-worded statutes have also allowed such joint adoptions.  It's a good legal theory that allows for a good result, and I hope trial judges in Wisconsin keep relying on it.

Tuesday, December 6, 2011

European Court of Human Rights (ECHR) hears another second-parent adoption case

Last week the European Court of Human Rights (ECHR) heard the case of  X. & Others v. Austria, its second case on the availability of second-parent adoption.  A webcast of the oral argument in the case -- translated into English -- is available on the ECHR website here. I wrote about the hearing in Gas & Dubois v. France last April; that case has yet to be decided.  In Gas & Dubois, the child was conceived through donor insemination and France denied the mother's partner the ability to become a second parent through adoption.  In X. & Others, the child was born in the context of a prior heterosexual relationship.

According to Rob Wintemute, leading European expert on LGBT family law, unmarried different-sex couples may adopt each other's children in Austria. If the child's birth mother had been living with a new unmarried male partner, instead of a female partner, the new male partner could apply to adopt the child. The genetic father would have to consent, or the court would have to be persuaded to override his refusal to consent because the step-parent adoption would be in the best interests of the child.  Because a step-parent adoption or second parent adoption is legally impossible for a same-sex couple in Austria, the trial court did not reach the question of the genetic father's consent.

The lawyer arguing for Austria pointed out to the ECHR that most European countries do not allow a child to have two mothers or two fathers.  She argued that this is relevant to the leeway given to each country (called the "margin of appreciation") in implementing the European Convention on Human Rights provisions on respect for family life.

The petitioners are represented by Helmut Graupner, leading Austrian gay rights attorney.  He noted that the Youth Welfare Office found that it would be in the child's best interest for the mother's partner to have legal custody of the child but that this was not permitted under the law.  Graupner quoted to the court the opinions of numerous experts on the well-being of children raised by same-sex couples.

Although Europe was way ahead of the US in recognizing same-sex couple relationships, beginning with registered partnership in Denmark in 1989 and same-sex marriage in the Netherlands in 2001, European countries have actually lagged behind the US in recognition of parentage for same-sex couples.  It is a relatively recent development that some countries do allow second-parent adoption or parentage for the same-sex partner of a woman who bears a child through donor insemination.  Austria not allows same-sex couples to enter registered partnerships, but the law explicitly bans second-parent adoption for registered partners.

Tuesday, November 29, 2011

Book by psychology professor Abbie Goldberg is most comprehensive yet on children of LGBT parents

If you want to read one book about the research on children of LGBT parents, the best choice is Lesbian and Gay Parents and Their Children, by Clark University psychology professor Abbie Goldberg.  Dr. Goldberg is also a researcher in her own right.  She presented her current research on adopted children at a session sponsored by the Williams Institute earlier this month in Washington, DC.  There are legends in the field of research on children of LGBT parents -- Charlotte Patterson at the University of Virginia and Susan Golombok at the University of Cambridge in Great Britain, for example.  (Both these women also spoke on the Williams Institute panel.)  They have been doing this work for decades.  Dr. Goldberg joins their ranks as a young researcher and scholar; her Ph.D. dates only to 2005. Yet her publications number in the dozens, and her commitment to researching LGBT parents and their children suggests we have dozens more to look forward to over the course of her career.

As immersed as I am in the legal literature on LGBT parents and their children, I still had managed to miss the quantity and quality of work coming out of the social sciences.  The legal lens tends to focus on how the children turn out, with the purpose in mind of convincing law makers and judges that we should not be restricted in our right to raise children.  In the all-too-common litigation between a bio and a nonbio parent over custody and visitation, we have not drawn enough on the increasing body of research on such families in making our legal arguments.  The half dozen or so studies of what last names lesbian couples choose for their children, discussed in two pages in Goldberg's book, could, for example, help explain to a court what such decisions mean.  Ditto for research on how lesbian couples with children divide child care, housework, and paid work.

There continue to be custody and visitation disputes when one parent comes out after the end of a heterosexual marriage.  Goldberg's analysis of the research on children's reactions in such situations, and on the harm that secrecy can cause children, could provide a road map for arguing on behalf of the gay or lesbian parent.  With courts increasingly saying that it's not the parent's sexual orientation, but the child's reaction to it, that justifies a custody or visitation restriction, the studies Goldberg describes should form a prominent part of a legal strategy.  While children understandably show surprise, worry, and concerns about privacy when a parent comes out, the research does not support the notion that lesbian and gay parents place an unfair burden on their children when they comes out or that the children will experience ongoing stress.

Goldberg always keeps in mind the "T" in LGBT.  There isn't much research on trans parents, and when there is none Goldberg says so.  But when there is any, it's here.  Since so much more is needed, and Dr. Goldberg is early in her career, I expect she herself will fill some of this void in the years to come.

Tuesday, November 15, 2011

Single woman may sue Michigan fertility clinic for denial of IVF services

The Michigan Court of Appeals has released for publication its September opinion in Moon v. Michigan Reproductive and IVF Center. In that case, Allison Moon sued a fertility clinic because it would not provide services to her as a single woman.  Reversing the trial court, the Court of Appeals ruled that the clinic was subject to the state's anti-discrimination law and could not avoid litigation on the basis of a doctor's alleged right to choose his patients.

Under Michigan law,
the opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.
A place of public accommodation includes a "health facility" whose services are "available to the public."  Such a facility cannot discriminate on the basis of marital status.

The defendant did not dispute that it was a public accommodation, but it did argue that the law requires a doctor-patient relationship to be consensual and that therefore the doctor could decline to treat anyone.  The court ruled that the doctor can decline to treat a patient, but not on one of the grounds identified in the anti-discrimination statute. "A contrary interpretation," the court held, "would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian."

The case is extraordinary for a series of emails between Moon and the doctor at the clinic in which he explained his reason for refusing to treat her.  His claim was that he would not treat her because he feared that he could be held liable for child support for the resulting child.  Although he claimed that a doctor in Massachusetts had been held liable for child support in such a circumstance, no one I know has ever heard of such a case.  This is not a case like the Benitez case in California a few years ago, in which the doctor claimed a religious freedom right to discriminate on the basis of marital status.

Thursday, November 3, 2011

When lesbian mothers split up -- latest results from the National Longitudinal Lesbian Family Study

The December 2011 peer-reviewed journal Family Relations reports the latest findings from the National Longitudinal Lesbian Family Study (NLLFS) on the well-being of children whose mothers split up before they were 17.  The NLLFS has been following 85 children of lesbians born through donor insemination beginnning in the 1980's.  Information about the study and its earlier published research is all located on the NLLFS website.

Of the 73 two-mother families in the study, 40 couples had split up by the time their child was 17 (over 90% of these occurred before the child was 13).  This is a higher rate of separation than the divorce rate for married heterosexuals.  71% of separated couples reported shared custody of the children, a number considerably higher than the rate of shared custody among divorced heterosexuals.  59% of the couples had completed second-parent adoptions, and parents in that group were more likely to share custody.  The children whose mothers had completed second parent adoptions were much more likely to report feeling close to both mothers.  In 10 families, the birth mother was primary custodial parent. The study reports no families in which there was one primary custodial parent and that parent was the nonbiological mother.

The study's key finding: there was no difference in psychological health or problem behavior between those children whose mothers had completed second parent adoptions and those who had not, or between those whose mothers shared custody and those who did not.  The authors note that this lack of association could reflect the small size of each subgroup.  (Previous research from the NLLFS, published in Pediatrics, reported no difference in the well-being of children whose moms split up and those whose moms were still together.)

The study includes the information that 80% of the separations occurred before same-sex couples could enter civil unions in Vermont (July 2000), the first status available to same-sex couples that conferred the state-level legal consequences of marriage.  Almost all occured before the couple could have entered marriage or its legal equivalent in the state where they lived.  The study repeats this fact several times.  In a footnote, the authors do note that marriage (or its legal equivalent) is neither necessary nor sufficient to confer legal parentage.  Perhaps repetition of the fact of the unavailability of relationship recognition is designed to suggest that there could be variable outcomes for children whose parents marry and those who do not.  While that is, of course, possible, if the data reported in this study holds it suggests otherwise.  It takes a lot more time, effort, and money to complete a second parent adoption than to marry.  A second parent adoption is also a strong statement of commitment to the child, as opposed to marriage which concerns the relationship of the women to each other.  So if the children of second parent adoptions are no healthier or better adjusted than the children whose moms did not complete second parent adoptions, my hypothesis would be that the couple's marriage would produce no difference either.

One thing for sure -- there will be lots to research over the coming years, and the data from the NLLFS study will be the point of comparison for all that work.

Wednesday, November 2, 2011

South Carolina appeals court reverses custody award to father that was based in part on mother's abortion

Since the mid 1970's, gay rights advocates, and advocates for children, have argued that a judge's view of the morality of a gay or lesbian parent should not influence the judge's decision on custody or visitation. Gay and lesbian parents do continue to lose custody or face vistitation restrictions in some counties and states, but rulings explicitly based on morality are rare.  Of course some parents avoid the risk of losing custody altogether by agreeing to keep their partner away from the children, and that tells me that such risk still exists.

A case decided by the South Carolina Court of Appeals last week raises a different issue about morality.  In Purser v. Owens, a trial court removed an eight-year-old autistic child from the only home he had ever known, with his mother, and transfered custody to the child's father, who lived in North Carolina, had never lived with him, and had little contact with him for the first six years of his life. The parents were never married.  Among the reasons:  when she was 35, the mother had a brief affair with a 19-year-old; when she became pregnant, she had an abortion.  The trial judge said this:
Other things I'm concerned about is the pregnancy with a 19 year old and abortion. That was an irresponsible decision; two irresponsible decisions. First being involved with a 19 year old when you are 36 or 35. That's irresponsible. And then having an abortion. That's irresponsible. I am concerned about the environment.
Three years later (there is no accounting of how it took three years for this appeal to be resolved), the appeals court reversed the custody decision and sent it back for a decision without considering the mother's abortion, because the abortion had no direct or indirect effect on the child and was therefore not relevant.

Most of the opinion is devoted to whether the father should have had to prove there was a "change of circumstances" to get custody of the child.  The majority ruled that since it was the first legal determination of the child's custody, the father did not have that burden.  A vigorous dissent disagreed, reasoning that the father approved the custody arrangement with the mother by never trying to change it and should have to meet a higher burden to change custody after such a long time.

I'm afraid that this ruling, as good as it is for the principle that a mother should not be penalized because she had an abortion, will be of little help to Angela Owens, the mom in this case.  There's nothing about the trial judge's ruling being stayed pending appeal, so it is likely that the child has been living with his father for three years.  If that placement is going well enough, a judge may be reluctant to disturb it.

Two other notable things about this case.  The father was married.  The trial court might well have preferred a married couple home over the mom's single parent family.  And the mother alleged that the father filed for custody after she went after him for child support.  If that's true, it's not the first time, and such a sequence of events should suggest some real bad faith on the father's part.

Finally, given the discretion accorded judges in deciding custody, this ruling might have been affirmed if the judge had not mentioned the abortion.  Certainly there are recent court decisions involving gay fathers and lesbian mothers where the judge says that sexual orientation is playing no role in the decision.  An appeals court will usually take a judge at his or her word in that regard.  This judge could have said he was not considering the abortion, or he could have not mentioned it.  But he did, and at least the case stands for the proposition that he should not have.

Friday, October 28, 2011

IRS nods towards surprising interpretation of civil union/domestic may be "married" for tax law purposes

Pat Cain, tax law expert extraordinaire, shared an astonishing piece of news on her blog yesterday.  The IRS Office of Chief Counsel has written a  letter indicating that a different-sex couple in an Illinois civil union is considered married for purposes of filing a tax return at the federal level.  The letter says nothing about same-sex couples, presumably because DOMA blocks treating a same-sex couple as married under federal law.  (I've wondered sometimes if the federal government could recognize a civil union or domestic partnership because it isn't a marriage, which is what DOMA addresses.  But I'll leave that aside for now...)

Here is what's astonishing about this.  One of the reasons different-sex couples enter such a status instead of getting married is to avoid the federal consequences of marriage.  For example, a divorced woman collecting social security retirement benefits on the basis of her former marriage loses those benefits if she remarries.  Presumably this is the reason that some of the states that allow different sex couples into DPs limit it to couples where one person is at least 62 (the minimum age for a nondisabled person to collect social security retirement benefits).  But some states (Illinois, Hawaii, Nevada) as well as DC allow all different sex couples into the status.  And DC allows two people who live together "in a committed, familial relationship" to register as DPs.

As Pat Cain notes, this one letter is not "the law."  And it only applies to filing status.  If it does become the policy of the IRS it is hard to see how it could apply to filing status and not to other tax code provisions, and then it is hard to see how the IRS could consider a couple married without the Social Security Administration doing the same, which is where retirement and death benefits come in.

If this does become "the law" it has a special significance for me.  I'm in a DC registered domestic partnership and, as anyone who reads this blog or hears me speak knows, I do not want to get married.  But I would benefit from filing my federal tax return as "married." So...if DOMA is repealed, a ruling consistent with this recent IRS letter would mean I could stay in my DP and still file my federal taxes as married.  Cool!  It would also allow others to choose "civil union" or "domestic partnership" as an alternative to marriage without federal penalty.  That might make it too good to be true...So I'm not holding my breath!

Thursday, October 27, 2011

Application for social security card recognizes possibility of same-sex parents, but...

A same-sex couple will no longer have to puzzle over filling out an application for a child's social security card.  Where it used to call for "mother" and "father," it now asks about "mother/parent" and "father/parent."  But there is a catch.  The "mother/parent" space asks for name AT BIRTH, while the "father/parent" space does not.  Would it be so hard to ask for the name at birth of both parents?  Husbands do sometimes change their names when they marry.  A student of mine last year wrote a paper on this issue as a result of difficulty he had effectuating a name change when he took his wife's name at marriage. (If you are curious why he did this, well, her name had great meaning to her within her culture, and he was fine changing his name to hers and giving that name to their children.)  And since women do not always change their names, those who have not changed their names will not feel singled out for a reminder that most women do. And...with 40% of births to unmarried women, a lot of mothers apply for a social security card for a child without a second parent.  The "name at birth" instruction to women only surely reminds them that they were supposed to be married (and change their name) before the child was born.  And, finally, same-sex couples as well as straight couples, sometimes take a new name for themselves and their child.  Then each had a different name at birth.

I want all these parental possibilities to appear equally appropriate on our government forms.  Too much to ask?

Tuesday, October 25, 2011

New report on LBGT families with children a must-read

Today the Movement Advancement Project, Center for American Progress, and Family Equality Council released the report, “All Children Matter: How Legal and Social Inequalities Hurt LGBT Families.” This is not just one more report on children of LGBT parents. It is, instead, the gold standard against which every other assessment of the needs of children of LGBT parents will be measured for well into the future. The report identifies three goals, each one of which receives lengthy treatment in a separate section: Goal 1: Securing stable, loving homes for children; Goal 2: Ensuring economic security for children; Goal 3: Ensuring health and well-being for children. The conclusion presents detailed recommendations designed to achieve these goals.

I have often complained in my blog posts about all the reports, press releases, speeches, testimony, etc that attribute the problems facing LGBT families, including the children in those families, to the unavailability of marriage to same-sex couples. This report does not make this mistake.

Beginning with the introduction, the report situates LGBT families within the context of other disfavored families. Noting that only 22% of households are married heterosexual couples raising their biological children and that only 59% of children live with their two married biological parents, the introduction notes that “unequal laws and social stigma harm not just the two million American children with LGBT parents, but also children in other family configurations, such as those with unmarried heterosexual parents.” It also criticizes government safety net programs that fail to support and protect children not living with a married mother and father. So from the beginning of the report, it is clear that the authors do not identify lack of access to marriage as either the primary problem or the primary solution.

In addition, after describing the number of same-sex couples raising children who are disadvantaged by their race, economic disadvantage, and bi-national status, the report makes clear that the needs of those families cannot be met only by looking at the LGBT angle of their lives. For example, in addition to LGBT-related immigration reforms, the report recommends a pathway to permanent residency and citizens for all undocumented immigrants living in the US.

Another strength of the report is its level of detail. I would almost call it mind-numbing detail, to the extent that it is difficult to absorb the volume of factual information and accompanying analysis in the report’s 115+ pages. (The authors prepared an abridged version, but it’s worth slogging through the full report). But anyone truly trying to understand the large number of public programs affecting “parents, “children,” and “families” – terms defined in maddeningly different ways – the report gathers everything in one place, from the school lunch program to public housing to various tax credits.

The section of the report on securing stable, loving homes for children does not address parenting in general terms, but separates five distinct pathways to parenthood – traditional conception, adoption and fostering, blended and stepfamilies, assisted reproduction, and surrogacy. For each, it discusses laws and policies that either block or facilitate establishing and maintaining parent-child relationships. This is the area of law I know the most about, and I did find a few technical errors or misleading statements, but a report of this magnitude that tries to present nuances rather than generalizations is bound to have small mistakes. For the most part, I was enormously grateful for the nuances; a decision from a state’s intermediate appellate court, for example, is not the last word on the state’s law, even if for the moment all trial courts are following it. It’s very hard to convey that when drawing a color-coded map.

Something I love and deeply appreciate about the report is its emphasis on defining family in functional ways. It makes numerous recommendations for basing economic policies, from eligibility for programs to ability to sue for wrongful death, on the functional parent-child relationship. Other strengths include acknowledging the significance of racial disparities and identifying what should be done to overcome them and naming the distinctive circumstances facing transgender individuals who are or want to be parents.

No single post can do this report justice. So consider this the first in a series.

Saturday, October 22, 2011

Evan Donaldson Adoption Institute report identifies best practices in adoption...but supports same-sex marriage for the wrong reason

The Evan B. Donaldson Adoption Institute issued a new report this week on Research-Based Best Practices in Adoption by Gays and Lesbians.  It includes the results of a survey of 158 adoptive parents.  What the researchers learned from those parents, combined with information from other sources about LGBT adoption, produced a series of recommendations.  These includes creating an atmosphere welcoming and respectful of LGBT prospective adoptive parents; promoting sensitivity and competence among agency staff; providing pre- and post-adoption support to LGBT families; providing pre-adoption support and education for birth families and older children; and supporting research on adoption and parenting.  After three previous reports on LGBT adoption: on the number of agencies working with LGBT clients; on the research finding no child-centered reason to oppose LGBT adoption; and on eliminating barriers to LGBT adoption of children from foster care; it's terrific to read a report focused not on whether LGBT individuals and couples should be able to adopt but on how to make those adoptions work better for everyone.

But I do have a quarrel with one recommendation: advocate for the passage of gay marriage laws.  If the researchers had stopped with saying that denial of access to marriage stigmatizes same-sex relationships and that's not good for the children they raise or for creating a climate in which more gay people want to adopt, well, I'd be fine with that.  But this is what they said:
Marriage promotes relationship stability for heterosexual adults compared to cohabitation, and consequently leads to healthier long-term psychological adjustment for children.
On this point, they should know better.  The causal link between marriage and better child outcomes is highly contested.  Those who make this claim generally oppose policies that respect and promote family diversity.  I think the reference to "relationship stability" refers to the length of time the relationship lasts.  Yet the one longitudinal study (peer-reviewed, published in the prestigious journal, Pediatrics) of children of lesbian couples that has studied the children when they were 17 years old found no difference in the well-being of those children whose mothers had split up and those who were still together.

But it get worse.  The next sentence reads:
If the well-being of children is to be paramount, then there is reason to expect that the marriage of their parents -- including when they are gay or lesbian -- will further the same objective.
Now this is the same organization that, along with every other highly regarded national child welfare organization, asserts that a substantial body of research demonstrates that children of LGBT parents suffer no psychological detriment when compared to children raised by heterosexuals.  And those were unmarried LGBT parents. In other words, children have done fine living with LGBT parents who could not marry each other, so what is this assertion that marriage of those parents will produce healthier children?

 I appreciate that the researchers support marriage equality.  But they should know better than to do so in the name of producing better-adjusted children.  It gives too much credit to arguments that are used inappropriately when discussing heterosexuals, and it disregards the well-being of the children LGBT parents have been raising for decades.

Wednesday, October 19, 2011

Gay rights lawyer Beth Robinson appointed to Vermont Supreme Court -- becomes 4th lesbian high court judge in the last 12 months

Yesterday, Vermont governor Peter Shumlin appointed gay rights lawyer and marriage equality advocate Beth Robinson to the Vermont Supreme Court. That brings to four the number of open lesbians appointed to state supreme courts in the last twelve months. The other three are, in chronological order, Monica Marquez, appointed December 2010 to the Colorado Supreme Court; Sabrina McKenna, appointed February 20011 to the Hawaii Supreme Court; and Barbara Lenk, appointed May 2011 to the Massachusetts Supreme Judicial Court. Before December 2010, there was only one openly lesbian state supreme court judge, Virginia Linder, appointed in 2007 to the Oregon Supreme Court.

State courts are hugely influential in determining family law disputes, including those that involve same-sex couples and LGBT parents. Four of these five judges are serving in states that have marriage (Vermont and Massachusetts) or comprehensive recognition (Oregon-domestic partnership and Hawaii-civil union) for same-sex couples. Issues will arise in those states not only for same-sex couples who marry but for those who don't.

Beth Robinson, who has been deeply involved in marriage equality efforts for most of the last two decades, knows my critique of making marriage the dividing line between relationships that count under the law and those that don't. She has been focused on the equality aspect of access to marriage. I hope in her new position, having achieved the equality she fought hard to obtain, she will focus on doing justice for all LGBT parents and their children in Vermont, whether the couples marry or don't.

But that's all in the future. For today, a big congratulations to Beth! And props to the governor who selected her.

Wednesday, October 12, 2011

Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple

On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")

The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).

Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.

That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.

Tuesday, October 11, 2011

Supreme Court denies cert in Adar v. Smith, leaves child without accurate birth certificate

This morning the US Supreme Court declined to review Adar v. Smith, the ruling from the Fifth Circuit Court of Appeals (en banc) that Louisiana need not issue an amended birth certificate naming as the child's parents an unmarried couple who adopted the child in another state. A gay male couple had adopted the child in New York.

I have written about the case extensively here, including the massive effort by Lambda Legal to gain Supreme Court review.

A denial of certiorari is not a seal of approval for a lower court's ruling, so it does not make the law worse than it already is. (As opposed to a loss in the Supreme Court, which has nationwide ramifications). That said, the ruling that stands is very bad. It is the crack in the door that other states, and their courts, may walk through to deny recognition to same-sex couples raising children in a variety of contexts. Its differential treatment of children with married parents and those with unmarried parents is also deeply disturbing.

Friday, October 7, 2011

Paula Ettelbrick dies after a life of service to LGBT rights; NY Times obit emphasizes her skepticism about marriage

After battling cancer for over a year, Paula Ettelbrick died this morning in New York. She was 56.

I met Paula when she joined Lambda Legal in the 1980's. In the group of gay rights lawyers from around the country that met regularly at the time, we both opposed prioritizing marriage. She and I shared an expansive definition of family and a broad vision of social justice. I remember when she called me to discuss an essay she was writing defending her (our) position on marriage. It was to appear in (the now defunct) Out/Look magazine in tandem with a piece by Tom Stoddard, Lambda's executive director, who held the opposing view. Little did we know that the Stoddard/Ettelbrick debate on marriage would become the iconic articulation of the different visions about the proper place of marriage within our movement.

Tom died of AIDS in 1997, also at far too young an age.

The Stoddard/Ettelbrick essays have been reprinted in many textbooks and essay collections.

While at Lambda, Paula also represented Alison D., a nonbiological mother who was denied access to the child she had raised with her partner. In spite of her superb advocacy, the New York Court of Appeals ruled that Alison D. was nothing more than a stranger to her child and could not obtain court-ordered visitation. The same court, two years earlier, had expansively defined family to allow the partner of a deceased New York City tenant to remain in the rent-controlled apartment the couple had lived in together, even though only the deceased partner's name was on the lease. Paula told me she thought the court wasn't willing to deliver a second gay rights win in such a short period of time. Unfortunately, and to Paula's deep dismay, the same court upheld Alison D. in a 2010 case.

Paula was a deeply engaged, optimistic, and loving person. After Lambda, she held other important positions in gay rights organizations. When she was executive director of the International Gay and Lesbian Human Rights Commission, she told me how great it felt to work on sexual liberation in countries around the world.

After her diagnosis last year, Paula wrote many people, including me, described her status, and told us that what she wanted was to see us. Over brunch last November, she was as full of life and positive as ever. She will be honored later this month by SAGE. I'm sorry she did not live to receive the award in person.

May her memory be a blessing.

I'm amending this post to link to the New York Times obituary on October 8. The obituary highlights her family -- a partner, two children by a former partner (gay rights law professor Suzanne Goldberg), and a life that included Suzanne and her new partner. It also highlights her skepticism about marriage equality and quotes from the essay I referred to above.

Tuesday, October 4, 2011

El Paso has inclusive definition of domestic partners; Mayor and council members face recall

I've got a special connection to El Paso, given that my partner and I have a residence across the New Mexico border in Las Cruces. El Paso is our local airport. It's also a city hard hit by the Mexican drug wars across the border in Juarez, something we were following as a local story for years before the national press picked up on it.

Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.

The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.

The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.

Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.

This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)

Sunday, October 2, 2011

Arkansas law on same-sex couples raising children is...complicated

Same-sex couples have a constitutional right to carry on a sexual relationship in their home. So do different-sex couples. That's what the Arkansas Supreme Court said in Cole v. Arkansas, the case striking down the ban on adoption and foster parenting by anyone living with a nonmarital partner. The court's ruling was based on the Arkansas constitution. (For more about the case, read here).

So how can an Arkansas court repeat the following: "It is true that unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided"? I can't explain it, but that quote comes directly from a custody case decided in September in which a lesbian mother received custody of her two children but was ordered not to have her partner spend the night when the children were with her. The case, Bamburg v. Bamburg, comes from the Arkansas appeals court and does not mention the Cole case. The quote in turn cites to an Arkansas Supreme Court case from 2001.

Bob appealed the custody awarded to his ex-wife, Lisa, but Lisa did not appeal the restriction placed on her partner's presence. She may have been grateful to get custody at all, especially given the fact that she and her partner lied about their relationship at a temporary custody hearing. The judge's restriction does not allow either parent to have a nonmarital partner present, but it does not appear that Bob has a nonmarital partner. What disturbs me about this is not its unequal burden. It is accurate that Bob can marry under Arkansas law and Lisa cannot, but no parent should be required to marry to have a life that includes his/her children and his/her partner. And you would think that would be clear in Arkansas after the Cole case.

Cole itself said that child custody principles and striking down the foster parent/adoption ban were not in conflict because foster and adoptive parents are individually scrutinized. But in a custody case a parent's partner is also individually scrutinized. Think how odd is the result in the Bamburg case: Lisa and her partner, Mary Alice, must be allowed to adopt a child if they are found suitable, even while living together. But by this ruling they are not allowed to live together with Lisa's biological children. And that is so even though the daughter, who was 15 years old at the time of the trial, stated that she wanted to live with her mother, had a good relationship with Mary Alice, had no problem with their relationship, and did not like that she had been unable to see her while the divorce was pending.

It amounts to this: the state cannot object to Lisa and Mary Alice's home, but Lisa's ex-husband can. And if he does, a court will be more than happy -- with no individualized justification at all -- to send a message to Lisa's children that there is something wrong with being a lesbian mother. Shame on him. And shame on the state for validating his discrimination which the state itself cannot practice.

Tuesday, September 20, 2011

End of DADT improves life for the children of same-sex couples

In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received littled notice: children with a gay servicemember nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.

It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.

A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple was not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.

After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.

S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.

From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.

Thursday, September 15, 2011

Protecting Families: Standards for LGBT Families available online

At a plenary session of this year's Lavender Law conference, attorneys Bill Singer (New Jersey) and Joyce Kauffman (Cambridge, MA) unveiled an aspirational document designed to safeguard the parental relationships formed in same-sex couple families. Protecting Families: Standards for LGBT Families aims to keep families out of court by honoring the child's relationship with parental figures even when the relationship of the adults has disintegrated. You can now read and download the entire document here.

The document urges advance planning through obtaining legal protections for parental relationships, but in some states this can't be done, and in any state there are lots of people who don't have the money or don't make the time to make this happen. The legal system is so foreign to many non-lawyers. Or I'm reminded of the New Jersey couple who several years ago had one child and intended to have another, after which they planned to do second-parent adoptions of both children; they were waiting because it would be less expensive to do one proceeding for both children than to do two separate proceedings. But before there ever was a second child the nonbiological mother died, and the lack of a legal parental relationship meant that the child lost out on years of social security child benefits. It's precisely for situations like that that I advocate statutes establishing parentage at birth without the need for an adoption. See our DC statutes.

The standards are most important when the parents split up and there are no protections in place for a nonbiological or otherwise legally unrecognized parent. At this point the standards are aimed at the parent(s) with the legal power, and they make clear that honoring existing relationships is critical; that a voluntary resolution is best; and that homophobic arguments should never be used.

At the Lavender Law session where these standards were presented, an audience member asked whether the standards could be enforced on lawyers, whether a lawyer could be disciplined for not following them. The answer, of course, was no; no state bar is going to say a lawyer can't make an argument that is legal to make, even if it is unethical by these standards. But when lawyers refuse to represent a client who insists on a position contrary to these standards, it does send a message about what's right. Unfortunately, there are plenty of other lawyers the client can find.

There aspirational standards have value even if there is no enforcement mechanism. I personally thank Bill and Joyce for the hours they spent developing this important document.

Friday, September 9, 2011

National LGBT Bar Association gives 2011 Dan Bradley Award

And here is what I had to say about receiving this honor.

When I was a child, as my brother Stan who is here with me today can attest, I wanted to be an actress. And here I am. In Hollywood. Accepting an award. And so I would like to thank the Academy…I mean the Board of the National LGBT Bar Association…for recognizing the lifetime of work it has been my privilege to pursue.

I’m proud to be in the company of the previous honorees, from Nan Hunter, who received the inaugural Dan Bradley award, through Jon Davidson, last year’s recipient. I will forever cherish my place among them.

I am not the only Dan Bradley honoree this year. For almost 20 years, the Access to Justice Committee of the Georgia State Bar has conferred a Dan Bradley award. This year it went to Phil Bond, who for 15 years has been the managing attorney for Georgia Legal Services in Macon, Georgia. Mercer Law School, Dan’s alma mater, awards two of its students Dan Bradley internships every year. And the Legal Aid Association of California annually grants two Dan Bradley law student fellowships.

So who was Dan Bradley, that from coast-to-coast organizations keep his memory alive? On the National LGBT Bar website, he is remembered as the first chair of the ABA Section of Individual Rights and Responsibilities’ Committee on the Rights of Gay People. Here is a little more about him.

Dan was raised from age 5 in a Baptist orphanage in Georgia, separated from his five brothers and sisters. He worked his way through college and law school, and upon graduation in 1967 he joined legal services to work on behalf of migrant farm workers in Florida. He devoted himself to legal work for poor people with no access to civil justice, and when the Legal Services Corporation was founded in 1975 he was named the first San Francisco regional director. The next year he took a leave of absence to work on Jimmy Carter’s campaign. He was asked to play a role in the Carter administration, but he declined, concluding that he needed to keep a low profile. Dan Bradley was a closeted gay man.

Nonetheless, in 1979, he accepted the position as the second president of the Legal Services Corporation. In an interview with the New York Times three years later, after he stepped down and came out, Bradley described the double life he had led. It was filled with what he called “sheer, unmitigated fear.” Every day of it, he told the reporter, was “a terrible agony.”

Ronald Reagan had a plan to dismantle the Legal Services Corporation. Dan Bradley had a plan to stop him. Dan prevailed. Although Dan was personally ready to come out a year before he left public service, he didn’t. He feared it would help LSC enemies in their effort to abolish his agency.

Once he left government, Dan did come out, and he used his public stature to become a prominent gay rights advocate. He served on the boards of national gay organizations and became chair of the new ABA gay rights committee. Dan called on the ABA, at its 1983 annual meeting, to pass a resolution opposing discrimination on the basis of sexual orientation. Abby Rubenfeld remembers walking past the ballroom where the House of Delegates was meeting and hearing delegates laughing at what they considered the preposterousness of Dan’s proposal.

In 1985, Dan was diagnosed with AIDS. In June, 1987, he led a group of demonstrators who were arrested at the White House protesting Reagan’s inaction in combating the disease. In October 1987, he was a leader of the National March on Washington. Three months later, he was dead --- of AIDS-related complications. He was 47 years old.

Dan didn’t live to see the ABA adopt the resolution he had urged. That happened in 1989. Although there is still no federal protection against discrimination in employment on the basis of sexual orientation, something Dan actively pursued, he would undoubtedly be impressed with the advances in achieving LGBT rights of the last 20+ years.

But he would also know that right now, in his Georgia home town and elsewhere, there are men and women living the same double life he once led, afraid of losing their jobs, or their children, or their lives.

The Legal Services Corporation Dan fought so hard to save lives on, hampered by restrictions he would have hated. It also has, in inflation-adjusted dollars, less than half the funding it did when he was president. State funding and some private funding now provide 70% of the cost of civil legal assistance to the poor. LSC funds are distributed according to census data on where poor people live, but other funding sources are not, causing great disparities in the availability of lawyers. The lowest funded states are in the Rocky Mountains and the south, Dan’s home region, where funding is as low as 1/10th that available in the highest funded states. That’s a lot of poor people without access to civil justice.

I know that Dan would feel a special kinship with those of you here today who work in legal services offices representing poor LGBT clients.

I’ve made family law the focus of my work, with two specific emphases: protecting the ability of LGBT parents to raise their children and not making marriage the legal dividing line between relationships that count and those that don’t. These two passions come together in my opposition to the shocking phenomenon that in some states a child born to a lesbian couple has two mothers if the couple is married, or in a functionally equivalent legal status, but only one mother if the couple is not. Reinvigorating the discredited distinction between “legitimate” and illegitimate children, this time in the context of same-sex couples, is, to say the least, unacceptable.

And speaking of the field of LGBT family law, I would like to give a special shout out to the members of the National Center for Lesbian Rights National Family Law Advisory Council on which it is my privilege to serve. NFLAC consists of family law practitioners from around the country, in friendly states and hostile states, who represent LGBT clients in the formation and dissolution of their families. I have been so enriched by NFLAC members, from whom I hear stories of how LGBT people are actually arranging their family lives, sometimes in ways I could never have imagined. And to law students, if you want to do challenging work that makes a difference, LGBT family law is a growing field. I would like all the members of NFLAC to please stand to be acknowledged.

I wish I had the time to say something about each NFLAC member, but I do want to mention just a few people. Deb Wald from San Francisco, our chair, does more than conceptualize and organize our meetings. She spent much of the last few months organizing the pioneering parents luncheon held yesterday that honored a dozen clients who fought through the appellate courts of their states for the right to raise their children. Bill Singer, from New Jersey, takes the lead every year in organizing the day-long Family Law Institute, which was also held yesterday, that allows over 100 LGBT family law practitioners from around the country to discuss the issues they have in common. Alison Mendel. You are the only person I have ever nominated for the Dan Bradley award – before there was NFLAC, when I felt the work of individual family law practitioners went completely unacknowledged. Contrary to what is written in some publications, NCLR did not do the first second-parent adoption in the country, and it didn’t happen in California. In 1985, Alison Mendel, practicing family law in Anchorage, Alaska, got a judge to sign the first lesbian second parent adoption in the country. Alison still does LGBT family law, and other LGBT rights cases, in Alaska, and she’s looking to hire a new law graduate. Finally, Joyce Kauffman in Cambridge, MA. I have to mention you by name because you were my lawyer. When my ex and I wanted to do a second parent adoption of our daughter but we had long before split up, you made it happen. Thank you.

I’d like to close by acknowledging the members of my family who are with me – my partner Cheryl, my brother Stan and his partner, Brian. Thank you for your love, which turns out to matter more than anything else. Other family members are with me in spirit: My chosen family in Washington DC, and my daughter Lainey, who couldn’t take time off from her job in Boston. My father would have been here, but he died in 1998 at the age of 91. His journey from distaste and despair over my sexual orientation to acceptance of me and acknowledgement of the importance of gay civil rights is a testament to both his love and to the capacity of everyone to change and grow.

The closet almost destroyed Dan Bradley. On leaving the government, he told the New York Times, “I think I helped save Legal Services. Now I have to try to save myself.” Until not a single gay or trans person feels that way, and until HIV no longer infects 20% of men who have sex with men, there’s a lot of work to do.

Let’s do it!

Thursday, September 8, 2011

LGBT family law practitioners honor clients who are "pioneering parents"

At a luncheon today that was part of the Family Law Institute associated with the National LGBT Bar Association, twelve clients were honored for pursuing their right to raise their children through the appellate courts of states around the country. No one sets out to be a test case. But each of these clients was threatened with losing his or her child, and each kept going at great emotonal and financial cost, determined to keep that from happening.

The circumstances of the cases varied. Some won and some lost. And, as it turned out, some parents who lost in court nonetheless were able to remain actively involved parents. Some who won established great law for those who followed but did not get what they hope with respect to their own children.

For example, Michael Kantaras is a transgender man who married a woman who knew he was transgender. He adopted the child she was pregnant with when they married. And he consented as a husband to her insemination by donor semen and raised that child as well as his own. When the marriage ended, she argued that they did not have a valid marriage because he was legally a woman and therefore he was not the legal parent of the children. Although he won at the trial court, the appeals court ruled that, indeed, Michael was a woman and the marriage was not valid. The appeals court did not make a decision about the children, but Florida law made it unlikely he would obtain any ability to raise them. But Michael's story had a happy ending. Dr. Phil offered to provide the couple a family mediator, and through mediation they agreed to share raising the children.

On the other hand, in 1985, lesbian mother Sara Eaton won a stunning victory in the Alaska Supreme Court, which ruled that the trial judge was wrong to change custody of her son to her ex-husband. The court ruled that it was improper to rely on any real or imagined stigma that might come from the biases of others towards lesbian mothers. Language from that case has been cited in numerous other court rulings in the last 25 years. Well, Sara won on appeal, but when the case went back to the trial court the child had been living with his father for quite some time, and, on "best interests" grounds, the trial judge left the child there and gave Sara visitation rights. Sara appeared at the luncheon today with her son -- now 30 years old.

Several of the clients honored were nonbiological moms whose former partners tried to keep them from seeing the children they had planned for and raised together.

Credit for the luncheon goes to Deb Wald, chair of the National Center for Lesbian Rights National Family Law Advisory Council, for doing the lion's share of the work to make it happen.

Sunday, September 4, 2011

Primetime My (Extra)Ordinary Family sends mixed transgender message

I was all excited about the ABC Primetime program last week on transgender children. Especially excited because in my class this coming week I am teaching a court opinion in a dispute between divorced parents over custody of their son who wants to dress like a girl. The court sides with the father, who insists the child's gender variance should be discouraged. The case is as painful to read as those in which a trans parent loses his or her child after transitioning -- including having parental rights terminated, the most extreme measure the state can take against a parent.

Just a couple of years ago, Barbara Walters did an extraordinary job covering trans kids on a 20/20 special. Same network. I figured it would be just as good.

Well some of it was. The journey of a couple to understand their son who always knew he was a girl...including their decision to allow him to start a new school year, at age 10, as a girl. (The child's older sister goes into the classroom first to explain to the situation to the other students. Priceless.) The mom who wrote a book, "Princess Boy," because her son said that's what he was. Even the 19-yr-old MTF who finances her surgical procedures by earning money as a sex worker. That was hard to watch but it felt real.

But there was a catch. A big catch. Let's call him the repentant transexual. A man who decided in his 30's to transition to a woman who later regreted it and had surgery to revert to being a male. What was the point of this segment? If I have to ask the old Sesame Street question -- which of these things is not like the other? --this segment wins and it's not because he regreted his choice. It's because he was never a transgender child. That's right. A show about trans children -- young people, some very young, who know they are not the gender that matches their bodies -- with one segment about a man who never thought he was a different gender as a child and who makes his later journey sound like it was about fitting in with the trans friends he had later in life.

Maybe the producer of the show thought this added some kind of "balance;" maybe someone at the network thought such balance was necessary. But this wasn't balance. It was an adult describing a life trajectory completely different from everyone else's. All it will do is fuel the fire of those who are convinced there is no such thing as a transgender person, young or old.

Shame on you, ABC.

Monday, August 29, 2011

Nebraska Supreme Court rules nonbio mom entitled to hearing on custody and visitation

The facts are sad but common. Lesbian couple, Teri Latham and Susan Rae Schwerdtfeger, were together for 20 years and had a child born to Susan using donor semen about 15 years into their relationship, in 2001. They cared for the child as co-parents. In 2006 they split up. The child stayed with Susan but Teri claimed that she continued to see her son three to five times a week and to support him financially. According to Teri, in 2007, Susan began to cut down on her visitation time, and, in December 2009, Teri filed a petition for custody and visitation.

Although the trial judge initially gave her 30 minutes of visitation three times a week, six months later the judge dismissed Teri's case without a trial (although it appears the judge talked to the child in chambers), ruling that the doctrine of in loco parentis did not apply to her case. Teri appealed, and last Friday the Nebraska Supreme Court ruled in her favor. Teri now has the right to a trial.

The court determined that no statute gave Teri standing to bring her action but that the common law doctrine of in loco parentis did give her standing. Previous Nebraska court rulings had used that doctrine to order both visitation and child support for a stepparent and to grant a grandparent custody. "The Legislature did not intend that statutory authority be the exclusive basis of obtaining court-ordered visitation," the Latham court held. "If Latham can establish that she has met the standard...for granting relief to one who stands in loco parentis, there is no reason to exclude this case from the benefits of the doctrine afforded to stepparents and grandparents who have created similar relationships with a minor." The court cited rulings in lesbian split-up custody cases from numerous other states, including Pennsylvania, Wisconsin, Kentucky, Arkansas, and Washington; it did not acknowledge the states that have denied nonbio moms the ability to obtain custody or visitation.

The court continued:
The primary determination in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship. Application of the doctrine protects the family from allowing intervention by individuals who have not established an intimate relationship with the child while at the same time affording rights to a person who has established an intimate parent-like relationship with a child, the termination of which would not be in the best interests of the child.

Susan disputed a number of facts that Teri asserted, primarily after the couple split up. The case, therefore, returns to the lower court for a trial. And here the Nebraska Supreme Court opinion gets a bit murky. Although there is lots of talk about determining whether it is in the child's best interests for Teri to receive visitation, the court also acknowledges the factual dispute about the time Teri spend with the child after the couple split up and the nature of Teri's relationship with the child. This makes it seems as though the trial judge could believe Susan's version of the facts and determine that after the break up there was no in loco parentis relationship and then not consider whether visitation is in the child's best interests. But the court also notes that the diminished visitation in the two years before the case was filed reflected Susan's decision, not a lack of desire on Teri's part to be in the child's life. Presumably this means the trial court has to take into account Susan's obstruction of Teri's relationship with the child.

Even on a pure "best interests" basis, Teri faces a problem when the case returns to the lower court. There is no evidence she has seen her child for more than a year. There was little contact for some time before that. What's in this child's best interests at this moment will look different from the way it would have looked when the couple first split up. To that extent, Teri may fare less well than will future nonbio moms in Nebraska. But Teri will always be one of those "pioneering parents" whose contribution to LGBT family law is being honored at this year's Lavender Law conference.

One other comment, which I've made before. So-called "gay friendly" states are not necessarily good states for respecting the families formed by same-sex couples having children. And so-called "not gay friendly" states can get it just right. For other examples, compare New York and Kentucky.