Going on two years ago, Wisconsin adopted a domestic partner registry in spite of the fact that it has a "super-DOMA" constitutional amendment. Almost immediately, the registry was challenged as unconstitutional, as I wrote about here. Well, the past week has seen two items of related news.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
Tuesday, March 29, 2011
Tuesday, March 22, 2011
Focus in Iowa should be children of all lesbian couples -- not just those whose moms have married
Earlier this month, the Des Moines Register began an article as follows: "The next legal battle over gay rights in Iowa could come from a same-sex couple determined to have both their names listed on their child's birth certificate."
Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.
This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).
Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.
For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.
This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.
Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.
This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).
Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.
For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.
This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.
Thursday, March 17, 2011
Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children
It's always risky to predict the outcome of a case based on oral argument. Nonetheless, I'll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state's ban on adoption and fostering by anyone living with a nonmarital partner violates the state's constitution. The ban was enacted by voters in 2008. You can watch the argument on the court's website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.
Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.
If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.
When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.
In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.
So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.
The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.
One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.
And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.
Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.
If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.
When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.
In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.
So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.
The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.
One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.
And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.
Wednesday, March 16, 2011
Arkansas adoption ban oral argument tomorrow morning -- watch it live
The Arkansas Supreme Court hears oral argument tomorrow at 8:58 am CDT in Arkansas Dept of Human Services v. Cole, the ACLU's challenge to the constitutionality of the initiative enacted by voters in 2008 prohibiting adoption by anyone living with a nonmarital partner. It will stream here. For background on the case, check out the ACLU website. For one analysis of what went wrong in the election campaign, read this.
I'll post about it later in the day tomorrow.
I'll post about it later in the day tomorrow.
Health benefits for family of Michigan state workers in doubt
Last month I lauded the recently granted "plus one" benefit scheme implemented for 35,000 Michigan state employees. Well, those benefits are in grave danger. The state senate has already overturned the decision to award these benefits. My thanks to the Alternatives to Marriage Project for alerting me to this grave situation. ATMP is urging everyone to contact the Michigan House before it's too late. No one is surprised that Gov. Rick Snyder takes a decidedly different approach than that of his predecessor, Jennifer Granholm. Let's hope he can be stopped.
Tuesday, March 15, 2011
Delaware Supreme Court upholds de facto parent statute and upholds joint custody award
Two years ago, in an opinion I criticized extensively, the Delaware Supreme Court ruled that a woman whose partner was a child's only legal parent (through adoption) lacked standing to obtain custody or visitation when the couple split up. In response to that decision, the Delaware legislature amended its definition of "parent" to include de facto parents, a move I praised as extensively as I had criticized the previous court ruling.
A de facto parent in Delaware is one who:
(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child [as defined elsewhere to include meeting the child's physical, mental, and emotional needs]; and
(3) Has acted in a parental role for a length of time sufficient to haveestablished a bonded and dependent relationship with the child that is parental in nature.
The legislature made the amendment retroactive so that the mother whose loss prompted the statutory reform could refile for custody, which she did. The trial court ruled earlier this year that Carol Guest (a pseudonym) was the de facto parent of the child, A.N.S, and it awarded her joint custody. The adoptive mother, Lynn Smith (also a pseudonym), appealed.
In a ruling released this morning under the name Smith v. Guest, the Delaware Supreme Court upheld the joint custody award. Smith had appealed on several grounds and lost on all of them. Of greatest significance, she challenged the constitutionality of the statute, alleging that it violated her right to raise her child as set out in the US Supreme Court case of Troxel v. Granville. The Delaware court got it exactly right when it disposed of Smith's argument as follows:
I could not have said it better myself. I hope this reasoning resonates throughout the country and provides an alternate narrative to the one that has prevailed in some states that take a cramped view -- and certainly not a child's view -- of what makes a parent.
A de facto parent in Delaware is one who:
(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child [as defined elsewhere to include meeting the child's physical, mental, and emotional needs]; and
(3) Has acted in a parental role for a length of time sufficient to haveestablished a bonded and dependent relationship with the child that is parental in nature.
The legislature made the amendment retroactive so that the mother whose loss prompted the statutory reform could refile for custody, which she did. The trial court ruled earlier this year that Carol Guest (a pseudonym) was the de facto parent of the child, A.N.S, and it awarded her joint custody. The adoptive mother, Lynn Smith (also a pseudonym), appealed.
In a ruling released this morning under the name Smith v. Guest, the Delaware Supreme Court upheld the joint custody award. Smith had appealed on several grounds and lost on all of them. Of greatest significance, she challenged the constitutionality of the statute, alleging that it violated her right to raise her child as set out in the US Supreme Court case of Troxel v. Granville. The Delaware court got it exactly right when it disposed of Smith's argument as follows:
The issue here is not whether the Family Court has infringed Smith’s fundamental parental right to control who has access to ANS by awarding Guest co-equal parental status. Rather, the issue is whether Guest is a legal “parent” of ANS who would also have parental rights to ANS—rights that are co-equal to Smith’s. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child’s grandparents) seeks visitation rights. Guest is not “any third party.” Rather, she is a (claimed) de facto parent who (if her claim is established, as the Family Court found it was) would also be a legal “parent” of ANS. Because Guest, as a legal parent, would have a co-equal “fundamental parental interest” in raising ANS, allowing Guest to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe Smith’s due process rights. In short, Smith’s due process claim fails for lack of a valid premise.
I could not have said it better myself. I hope this reasoning resonates throughout the country and provides an alternate narrative to the one that has prevailed in some states that take a cramped view -- and certainly not a child's view -- of what makes a parent.
Friday, March 11, 2011
Film chronicles the birth of a group just for children with gay parents
COLAGE, the organization for "people with a lesbian gay bisexual transgender or queer parent," now has a staff of eight. But the film Family Time, which you can watch on the COLAGE website, chronicles the history of the group and shows that its founders did not even know eight people with an LGBTQ parent when they were growing up.
The film shows how the fight for marriage equality made children with gay parents more visible than ever. Happily, from my point of view, the group values all family forms, and its 2004 newsletter focusing on marriage contains many voices on the subject.
The group also has a larger social justice mission. Yesterday its website posted "5 Reasons We Stand For Workers' Rights." Awesome.
Watch the film and marvel.
The film shows how the fight for marriage equality made children with gay parents more visible than ever. Happily, from my point of view, the group values all family forms, and its 2004 newsletter focusing on marriage contains many voices on the subject.
The group also has a larger social justice mission. Yesterday its website posted "5 Reasons We Stand For Workers' Rights." Awesome.
Watch the film and marvel.
Sunday, March 6, 2011
MD Delegate Tiffany Alston had a good idea for a bad reason
When I first heard that Maryland Delegate Tiffany Alston wanted to replace marriage with civil unions for all I was hopeful she had a principled reason and that it was an idea that might catch on. I'm still waiting for a state to change the name of the status it grants couples, leaving "marriage" as a religious term or a generic term couples use for themselves. But it soon became clear Del. Alston was not really looking for a way to get the state out of the marriage business. She was just looking for a way to avoid voting for same-sex marriage.
I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.
So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.
Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.
I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.
So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.
Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.
Tuesday, March 1, 2011
Who are the parents of Viva Katherine Wainwright Cohen?
Viva Katherine Wainwright Cohen (d.o.b. 2/2/11) is the heir to folk music royalty. As the granddaughter of Loudon Wainwright III, Kate McGarrigle, and Leonard Cohen, she starts off life with songs -- and poetry -- in her blood. (By the way, I'm old enough to think of Rufus as the son of Loudon, rather than Loudon as the father of Rufus. As a folk music DJ in the early 1970's, I came of age listening to Loudon's early albums).
But who are her parents?
The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."
But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.
Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.
California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.
I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.
The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).
To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.
But who are her parents?
The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."
But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.
Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.
California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.
I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.
The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).
To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.
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