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.

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.

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.

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...

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.

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.

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.