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.

Monday, August 22, 2011

Tonight's episode of "The Closer" has faulty legal premise

If you DVR'ed The Closer tonight, this is a spoiler alert. You do not want to read this post until you've watched it.

I hate when tv shows depend upon an absolutely incorrect legal premise. That's what happened on tonight's Closer. The murderer is motivated to have the victim killed because the victim shows up and says she is the biological half-sister of the murderer who was adopted as an infant. The murderer has her killed so she cannot claim a share of her biological father's estate.

But the adoption severed her legal relationship with her birth parents, so she does not stand to inherit as a child. Now if the murderer thought this but the police managed to say among themselves that the murderer was mistaken and need not have killed the victim, that would be fine with me. The problem is that the police talk about the possible inheritance as though it was a real motive -- something that would cost the murderer millions of dollars.

It did used to be true that adoption did not change inheritance laws, and the adoptee could not inherit from adoptive parents and continued to be able to inherit through biological parents. It took decades for the law to treat adopted children as the full legal children of their adoptive parents.

But it's been settled for a long time now, and suggesting otherwise on a popular tv show spreads misinformation. All the folks in Hollywood needed to do was talk to a lawyer who deals with estates or families. It's too bad they didn't.

Friday, August 19, 2011

Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services

An Illinois state trial judge has thrown out the law suit filed by Catholic Charities of Illinois. The state of Illinois refused to renew the agency's contract to provide adoption and foster placement services because Catholic Charities said it would not place children with unmarried couples, including same-sex couples in civil unions. The agency sued.

Normally we think such lawsuits are about some religious freedom claim to discriminate. But in the first instance this suit was about whether Catholic Charities had a right to have its contract renewed. The agency claimed that because it had been renewed for 40 years, the state could not refuse to renew it this time without providing Due Process of law, which would include the right to present their point of view to a neutral decisionmaker.

The trial judge disagreed. He had previously granted an injunction against the contract termination in order to preserve the status quo. The injunction was granted on July 12. He heard argument on Wednesday and ruled yesterday. His short opinion concluded that "no citizen has a recognized legal right to a contract with the government."

Government attorneys argued on behalf of the state, but the ACLU of Illinois represented intervenors -- a lesbian couple wishing to become foster parents and a representative of all foster children in the state. The ACLU memoranda argued that since the state could not discriminate then a state contractor could not discriminate either.

The Thomas More Society, the "pro-life law center" representing Catholic Charities, has not decided what their next step will be.

Thursday, August 18, 2011

British article on co-parenting by friends (or by people who meet on websites designed to match co-parents) ignores legal issues

The British newspaper, The Telegraph, recently ran a story about people not in intimate relationships choosing to parent together. The lead family started as a single lesbian and a gay man chatting on an online fertility forum and is now a lesbian couple and a gay man. The coparents are not all gay. The article links to three different websites where people looking for such a co-parenting relationship can meet.

Britain regulates sperm banks, but there is no law governing how people meet who might decide to have a biological child together. The man and woman can do self-insemination or what the article calls "natural insemination (NI) – a euphemism in fertility forums for full sex."

Although I have written several posts about lesbians conceiving through sexual intercourse, I had never seen an actual term for the pratice, nor did I know that people discuss the practice explicitly in online chat rooms. The article does not discuss the legal consequences of picking one form of conception over another. The few US cases in which a man and a woman have sex explicitly so the woman can have a child alone have all had those agreements thrown out in a court case about the child's parentage. All the parents in the article are happy...for now. And since they are intending to coparent, maybe they expect to face a court if they have unresolvable conflicts later on.

But I have to wonder about the partner of the bio mom in the lead family in the story. She and the bio mom are the child's primary parents. But to be a legal parent she would have to complete a second parent adoption. A lesbian couple in Britain who conceive through the services of a medical facility can be parents without an adoption. So I am guessing she has no legal rights. There have been a couple of cases here recently of a bio mom teaming up with an uninvolved semen donor to try to get rid of a nonbio mom.

Like I said, all the parents in the article are happy...for now.

Tuesday, August 16, 2011

Maps of relationship non-recognition laws often obscure non-recognition of different-sex unmarried couples.

In the process of planning one of my law school classes, I was perusing the websites with maps of the United States showing the status of relationship recognition or non-recognition across the country. There are so many different types of laws that it's a challenge to accurately portray each state with all its nuances. HRC and NGLTF each have useful, easy-to-print one-page non-recognition maps. The Movement Advancement Project has interactive maps more suitable to getting a quick online snapshot of each state's LGBT-related laws.

Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.

So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.

This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.

But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.

I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.

Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.

Thursday, August 11, 2011

Numerous organizations and scholars join Lambda Legal in asking the US Supreme Court to hear Adar v. Smith

Six friend of the court briefs were filed this week asking the US Supreme Court to hear Adar v. Smith, the case of the gay male couple denied an accurate revised birth certificate for the Louisiana-born child they adopted in New York. Lambda Legal represents the couple and filed a cert petition on their behalf last month.

Lambda's press release Thursday summarizes and links to the six briefs.

It is never an easy decision to ask the Supreme Court to hear a gay rights case. There is always the possibility of losing, thereby making bad law for the entire country. But the Fifth Circuit en banc ruling in Adar, which I wrote about here, has the potential to make mischief beyond the states that are bound by it (Texas, Louisiana, and Mississippi).

Lambda deserves huge credit for their representation of this couple and their coordination of the friend of the court briefs filed in support of the cert petition. I am one of the more than two dozen family law professors named as amici in one of the briefs, and I want to give a special shout out to Joan Hollinger at UC Berkeley and Courtney Joslin at UC Davis, as well as the National Center for Lesbian Rights, for their work on this brief. As I reviewed the list of fellow family law profs on this brief -- most heterosexual and without a primary focus in their work on LGBT families -- I am also grateful that so many highly respected scholars care enough about our families and the children we raise to lend their considerable prestige to this case.

We won't hear back from the Supreme Court until October.

Tuesday, August 9, 2011

New California statute protects nonbiological parents

Last Friday, California Governor Jerry Brown signed the Protection of Parent-Child Relationships Act. This groundbreaking statute will solve a problem I wrote about last year in this post. Because federal law allows the mother and biological father of a child to sign a Voluntary Acknowledgement of Paternity (VAP) that makes the man a legal parent, the following scenario is possible: Lesbian couple raises child as two moms; under California case law, nonbio mom is presumptive parent because she received the child into her home and held the child out as her own; lesbian couple splits up; bio mom and known semen donor sign VAP, which makes man the legal father and rebuts the nonbio mom's presumption of parentage. That is what Maggie Quayle tried to do to Kim Smith. And she had on her side a 2009 California appeals court ruling that a VAP signed by a biological father trumped the presumptive parentage of a nonbiological father. Kim Smith testified in favor of this law reform effort.

Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.

Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.

Tuesday, August 2, 2011

Parentage not tied to marriage is better...but how to get lesbian couples to understand this?

The DC Gay and Lesbian Activist Alliance Forum noted last week that a married lesbian couple was told by Sibley Hospital in DC that they would have to present their marriage license to get both of their names on the birth certificate of the child that one of them gave birth to. After alerting members of the DC City Council who enacted parentage reform in 2009 (see here for more info on the law), three members sent a letter to Sibley decrying discrimination against the couple. (link to letter on GLAA Forum website). It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a marriage certificate then they cannot make such a request of a same-sex couple.

But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.

This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.

If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.

A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.

And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.

So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.

The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.

My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.