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.