Tuesday, May 24, 2011

Boston Review program on the future of marriage available online

In March, I spoke on a panel sponsored by Boston Review. It is now available online here. Harvard historian Nancy Cott, known for her expert testimony in the California litigation challenging the constitutionality of Prop 8, was the primary speaker. (You can read the transcript of her testimony in the Perry litigation by going to this website and clicking on days 1 and 2 of the transcript). If you have not followed her assessment of the history of marriage and why allowing same-sex couples to marry is consistent with that history, this talk is a concise summary of her work. Other speakers were Mary Bonauto of GLAD, Michael Bronski, and an opponent of marriage equality.

It was especially interesting to me that more than one audience member challenged the panelists to think about arrangements other than couples. Audience questions and our responses are included on the video.

Monday, May 23, 2011

California appeals court rejects possibility of three parents in dependency action

Same-sex couples are no worse than heterosexual couples when it comes to raising children. This we know and insist upon regularly when challenged in court cases, in legislatures, or at the ballot box. Well occasionally a case comes along as a reminder that we are no better, either. So it is with In re M.C., decided earlier this month by the Second Appellate District of the California Court of Appeal (from the Los Angeles area).

M.C. came into state custody when her biological mother, Melissa, was arrested as an accessory to the attempted murder of Melissa's wife, Irene. Here is a summary of the details: Melissa and Irene got together in 2006, registered as domestic partners in February 2008, and separated in May 2008. Melissa began a relationship with a man, Jesus, became pregnant by him, and lived with him for the first few months of the pregnancy. In July, 2008, Melissa filed to dissolve the domestic partnership and also obtained a restraining order against Irene arising from over a year of incidents of physical violence. Melissa went back to Irene in September 2008 and the couple married in October, 2008, during that period when same-sex marriages were legal in California. Melissa did not tell Jesus where she was living, and he did not try to contact her.

MC was born in March 2009 and given the surname that Melissa and Irene shared, although Melissa was the only parent listed on the birth certificate. Melissa moved out with M.C. a few weeks later, and Irene filed for joint custody in June. In that same action, Melissa obtained a restraining order against Irene. Melissa resumed contact with Jesus, who had moved to Oklahoma. Jesus sent her a little money, and she regularly took MC to visit Jesus's family. At Melissa's request, Jesus also submitted a declaration of paternity in the divorce proceeding in an effort to defeat Irene's custody request.

In September 2009, Melissa's new boyfriend stabbed Irene in the neck and back, causing severe injuries. Irene saw the assailant run from the scene and get into Melissa's car. This is what resulted in Melissa's arrest and incarceration. The dependency petition for M.C. said that the juvenile court had jurisdiction over the child because of Melissa's incarceration and history of drug abuse and Irene and Melissa's history of domestic violence.

The opinion goes through the history of violence, drug use, lack of suitable living situation, etc with respect to both Irene and Melissa. The Department of Child and Family Services (DCFS) contacted Jesus in Oklahoma and interviewed him by phone. He asked to have the child placed with him, and he returned to California to visit M.C. and attend meetings and court hearings. At some point there was agreement that M.C. should live with Melissa's grandparents, although at the last minute DCFS recommended that Jesus receive sole physical custody, Jesus and Melissa receive joint legal custody, and Melissa and Irene receive supervised visitation.

The trial judge found that Melissa was M.C.'s biological mother and that both Jesus and Irene were presumed parents, Jesus because of his biological status and relationship with the child, and Irene because she was married to Melissa when the child was born. The court placed M.C. with the Melissa's grandparents, subject to unsupervised visitation by Jesus and his mother and supervised visitation with both Irene and Melissa (Melissa's, of course, would have to take place where she was incarcerated....). All three parents appealed. Interestingly, Melissa and Irene both challenged the court's ruling that Jesus was a presumed father. Jesus challenged only the court's refusal to place M.C. with him.

The issue on appeal was the propriety of the trial court's finding (which the appeals court calls "novel") that M.C. has three presumed parents. Presumed parents have a right to participate in dependency proceedings, have appointed counsel, and receive reunification services. And here is where the Court of Appeal delivers the disturbing legal conclusion that a child cannot have two mothers or fathers if such recognition would result in the child having three parents. The California cases cited by the court for that proposition, however, do not need to be read that way. The appeals court remands the case to the trial court to determine which presumption to honor, using the statutory standard that when there are conflicting presumptions "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."

One judge (of the three hearing the appeal) went further and concluded that the presumptions should have been resolved in favor of Jesus and custody placed with him immediately.

Here are the troubling aspects of the court's ruling. (As opposed to the troubling aspects of M.C.'s life, which are, of course, numerous). I'm chronicling these because the reasoning of this case may hold sway when there is a known biological father in what are the more common circumstances of a same-sex couple who are both fit parents.

The law must be able to recognize that a child can have three parents. The categorical statement in this opinion to the contrary is wrong on California law and as a matter of policy. California trial courts are already allowing a bio mom's partner to adopt a child without terminating the rights of a semen donor who is functioning as a father. A nonbio mom in California becomes a legal parent through holding the child out as her own or through being married to or in a domestic partnership with the bio mom. That should not be jeopardized by the existence of an identifiable genetic father. The Children's Advocacy Institute at the University of San Diego School of Law filed a friend of the court brief advocating that M.C. had three parents.

Jesus may be the best candidate of these three people to raise M.C., but he should not have qualified as a presumed father under California law (for reasons that involve more analysis of appellate opinions than I can discuss here and that should make for a terrific law review note for some current law student). Melissa wasn't in hiding after she left him, and Jesus could and should have shown some interest in raising M.C. from the beginning if he wanted to claim parental rights. This case makes it too easy for a bio mom to enlist a bio dad in doing away with a nonbio mom's rights.

The appeals court says Irene "likely" had a superficial attachment to M.C. because the couple and child lived together for only three weeks. Well, a couple of years ago a different California appeals court rejected the argument that a period of time was necessary before a nonbio mom could be considered a parent. (See my post about Charisma R. v. Kristina S. here.) This court reveals its hostility to nonbio moms in another place -- a completely unnecessary footnote in which it suggests that the purpose of "paternity" determinations is providing genetic history for a child and that those provisions should not be interpreted to facilitate "parentage" determinations for nonbiological parents. Fortunately, the California Supreme Court has ruled otherwise, going back to 2005.

I've written elsewhere that we are likely to see increasing instances of a child conceived through sexual intercourse born to a woman who has a same-sex partner or spouse. I am deeply troubled by the idea that method of conception determines legal parental status, although I begrudgingly admit that seems to be the current state of the law.

Taking the facts in this opinion as true, I would also conclude that M.C. belongs with Jesus. It is possible to reach that conclusion without unnecessary pronouncements limiting the number of parents a child may have to two or privileging biological connections. My lawyer friends in California tell me this opinion might be ripe for depublication, which would limit its impact. I'm banking on that.

Friday, May 20, 2011

Washington state enacts comprehensive parentage statute

Earlier this month, Washington state enacted a version of the Uniform Parentage Act that will recognize parentage in numerous family situations. The legislation is effective on July 22, 2011 and applies to all causes of actions filed after that date. Proposed legislation on surrogacy was withdrawn from the bill and is therefore not covered in this statute.

The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."

In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.

The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own." A proceeding to adjudicate parentage when a child has a presumed parent must be brought within four years of a child's birth unless the presumed parent did not live with (or have sexual intercourse with)the other parent during the probable time of conception and never held the child out as his/her own (in which case it can be brought at any time).

It is a real thrill to me to see so many provisions of the DC parentage statute adapted to another state. Washington already recognized "de facto" parents under its case law. That status will remain important in instances when this parentage statute does not apply, such as an adopted child. But because this statute applies to any court action filed after its effective date, some nonbio moms who would previously have been "de facto" parents will now be parents under this statute. To the extent that the "de facto" parent status had some ambiguity (like whether it conferred the right to inherit by intestate succession) the new statute assures the existence of a parent-child relationship for all purposes.

Congratulations to the advocates who worked tirelessly on this legislation, especially Seattle lawyer Pat Novotny.

Saturday, May 14, 2011

Timo Miller website raising funds for defense of man who helped Lisa Miller evade court order to transfer custody

Timo Miller, the Christian missionary and Mennonite pastor arrested last month (details here)for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller, has set up a website telling his side of the story and seeking funds for his defense.

A Vermont court ordered a change of custody after Lisa repeatedly defied the court orders providing for visitation between Isabella and her other parent, Janet Jenkins. After the last hearing in the case, but before the court issued its ruling, Lisa fled the country, allegedly with Timo Miller's help. She and Isabella remain in Nicaragua.

The Timo Miller website compares Lisa to a mother goose who will "fight to the death to protect her young." It describes same-sex couples raising children as follows:

Since God has not intended for two men or two women to raise children as a family unit, they can’t produce children on their own. This creates a problem in their agenda to create the perception that homosexual behavior is normal. Thus they resort to adopting children or using artificial insemination from a male donor in the case of a lesbian relationship. Can you imagine being a child growing up in the middle of such an environment?

According to the version of events on the website, Lisa "realized the emptiness of her lesbian lifestyle" and "the danger that lifestyle posed for her young daughter." So she "repented of her immoral ways" and sought to make a new life. "Unfortunately for little Isabella," the website continues, "the lesbian activists decided the situation was an opportunity to further their agenda. They filed lawsuits on behalf of Janet Jenkins (the former lesbian partner) to force visitation rights and eventually gain custody of Isabella in an attempt to prove that their “civil unions” have parental rights."

One of the many things wrong with this version is that Lisa herself filed to dissolve the couple's civil union and requested custody, with visitation rights to Janet. The website describes Lisa's losses in the Virginia appellate courts as those courts "wash[ing] their hands of the situation because of some legal technicalities." Those "technicalities" are the laws explicitly designed to prevent parental kidnapping by giving control over custody litigation to the state that issues the initial court orders. When Lisa filed in Vermont, she gave that court the power to decide Isabella's custody and visitation. That's not a "technicality."

The website puts references to Janet's parental rights in quotes (i.e., "parental") and then says the accusations against Timo Miller beg the question of how "a biologically unrelated individual who has not gone through the adoption process" can even have parental rights. "Most states have specific prohibitions banning homosexual marriage," it continues, "helping to prevent a situation like this from occurring." If this turns out to be his defense, it will get him nowhere. In numerous situations, legal parentage does not require biology or adoption. And laws banning access to marriage for same-sex couples have never been interpreted to prohibit parenting by same-sex couples. (Some states do not allow both partners to be legal parents of their children -- see my recent post about Arizona for an example -- but that's entirely separate from whether they can marry.)

The case summary page on the website concludes: "Will you stand beside Timo as he faces the accusations against him? Will you pray for him and his family? Has God blessed you with the ability to help financially?"

Miller won't be able to build a defense around his religious convictions, but it looks like that's what her's going to try.

Saturday, May 7, 2011

Adoption news: federal anti-discrimination bill reintroduced; Catholic Charities threatens Illinois; Evangelicals cut ethical corners and worse

California Rep. Pete Stark this week reintroduced the Every Child Deserves a Family Act. The bill prohibits discrimination on the basis of sexual orientation, marital status, and gender identity by an entity that receives federal funding for adoption services or contracts with an entity that receives such federal funding. Meanwhile, with Illinois authorizing civil unions as of June 1, Catholic Charities there this week urged passage of legislation that would allow them to (continue to) discriminate against same-sex couples. Catholic Charities is sounding an alarm that it might have to stop providing adoption and foster care services in Illinois. Well, the Every Child Deserves a Family Act would override any such legislation (not that Illinois seems inclined to go in that direction). The federal statute would mean that no agency under contract to a state could discriminate on any of the named bases.

I'm proud of the state legislators (and those in my home town of the District of Columbia, which should be a state but isn't...that's another story) who stand up to Catholic Charities and let them know that others can provide the services they now provide if they wish to discriminate. Illinois Catholic Charities wants to get away with saying that they will refer same-sex couples to other agencies, as though that makes their own discrimination okay.

Meanwhile, thanks to Mombian blogger Dana Rudolph, who also writes for Keen News Service, for alerting me to an adoption story I missed last month. The Department of Health and Human Services (HHS) issued a memo urging child welfare agencies to better serve the needs of LGBTQ youth. As Rudolph describes in this story, HHS administrator Bryan Samuels also said that “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

Same-sex couples and LGBT individuals who want to become adoptive parents have fewer opportunities of adopting from overseas than were available previously. That's not about being gay; it's about the overall decrease in international adoptions. Last year international adoptions were down 50% from the all-time high in 2004. Last year's total was the lowest since 1994. (Read some of the statistics here.) As this post points out, fewer is better if the larger numbers resulted from corruption and baby stealing. In March, Ethiopia, which had had a rising number of overseas adoptions, announced a massive slow down in the processing of international adoptions because of the problems there.

Finally, if you were not aware of the Christian evangelical international adoption crusade -- folks who do far worse than just cut corners to "rescue" children for God --, you won't want to miss Kathryn Joyce's chilling piece in last week's Nation magazine. These people are pushing for increases in international adoption, including advocating legislation that would give financial incentives to developing countries that cooperate in sending their children for adoption to the United States. Because of the drastic decrease in international adoptions, there is a danger that secular agencies will join with these Christian evangelicals. Joyce reports that the Christian adoption crusade has friends on Capitol Hill poised to introduced legislation that might look benign but is actually designed to foster practices that are unethical -- except in the minds of those who proclaim, as Joyce reports, that they are following God's law, not man's laws.

A common anti-gay trope is that our desire for children is adult-centered, not child-centered, and that we want to recruit. I have never read anything about adopting children that was less child-centered and more about recruiting than this terrifying piece of investigative journalism.

Tuesday, May 3, 2011

Arizona couple and their twelve children get seven-page spread in Phoenix newspaper

This is a story that must be read, about Roger and Steven Ham, a gay male couple in Arizona (Roger changed his last name to Steven's in 2007, and all the children have the same last name), and their 12 adopted children. That's right, 12. First there was one child, who missed his four younger siblings. The five had been split into three foster homes when they were taken from their mother. Sibling groups are almost impossible to place in foster homes or with adoptive parents. Roger and Steven took all five. Then they took the children's 11 year old cousin. Then, as foster parents, they took any child the caseworker placed in their home (42 over 10 years -- some arriving with no notice), and eventually they adopted six more children, some with special needs. Roger is the youngest of 12 siblings; Steven the youngest of 14.

The Arizona Republic ran a seven-page spread about the family this past Sunday. I'm sure I have never read a more glowing review of foster/adoptive parents. Even Gov. Jan Brewer thought they were outstanding when she signed an award they received from the Arizona Association for Foster and Adoptive Parents in 2009. The award commended them for their secure and loving home, and for working so hard to keep siblings together.

But that didn't stop Brewer from signing into law last month a preference for placing children with married parents, a topic I posted about here.

The article points out that in Arizona only one of the men can be the children's legal parent. That's Steven. Two of the twelve were adopted from the Washington state foster care system, and both men are legal parents of those two. Roger is a school bus driver and the family's primary breadwinner. If he dies or becomes disabled while the children are minors, only the two who are legally his will get Social Security child benefits. Although the couple has signed all the legal documents they could, the lack of legal parentage leaves the children vulnerable in numerous situations. Nothing makes less sense.

I have to commend the Arizona Republic for running this story and giving it prominence. If it doesn't change some hearts and minds, I'd be surprised. I'll also be surprised if you can get through the whole article without tears in your eyes.