Birth certificate? Parentage? -- Iowa Supreme Court to hear case Tuesday -- live streaming available

I've covered Gartner v. Iowa Dept. of Public Health since its inception, with a fair amount of criticism.  This is the case filed by Lambda Legal challenging Iowa's refusal to put the name of a birth mother's same-sex spouse on a child's birth certificate.  The challenge was successful at the trial level (limited to children born of unknown donor insemination, as I discussed in my prior post).  Tomorrow, Tuesday, December 11, oral argument in the case will be heard by the Iowa Supreme Court.  The court live streams its oral arguments, so you can watch it here.  The case is on the docket for 1:00 pm Central time, but it is the second of three arguments scheduled at the time so it may begin later in the afternoon.

The state's briefs make clear that its position is that Melissa Gartner is not the mother of Mackensie, the child born to her same-sex spouse, Heather.  So the case is not just about the birth certificate; it is about parentage.  The state has nothing against same-sex couples raising children; it just believes that Melissa must adopt Mackensie to be her mother.  Now the truth is that LGBT legal groups have been urging married nonbiological mothers to complete second parent adoptions, even if their names appear on their child's birth certificate.  That's because parentage derived from marriage is vulnerable in states that don't recognize those marriages.  (Here's an example from GLAD).  In Gartner, Iowa is using that advice to support its position.  Because Gartner's parentage is vulnerable without an adoption, the state says, it's appropriate to require adoption, as that's the only way to really protect Mackensie.

Iowa argues that placing a husband's name on a birth certificate reflects the likelihood that he is the biological father, something that will be true, it estimates, 95% of the time.  The state claims the birth certificate information is used for various public health purposes and that its purpose is to record biological parentage.  If it is actually true that 5% of Iowa births to married mothers are for children not biologically related to her husband, then there are far more such children than children of lesbian couples.  So the biology argument really does not ring true.  (And Iowa doesn't ask if a mother conceived with a donor egg, so a child may not be the genetic child of the woman who gives birth).

Iowa is the only state allowing same-sex marriage (or DP/civil union) that refuses to place the married/DP'd/CU'd nonbio mom's name on the birth certificate.  But -- and this is the hardest fact for nonlawyers to grasp -- the birth certificate does not prove parentage.  It is evidence, and it generally creates a presumption, but it does not make someone a parent.  Legal parentage is dependent on parentage law, not birth certificates or birth certificate law. So, if a state's law allows a parentage presumption to be rebutted based on biology, a mother's female spouse, even if she is on the birth certificate, may find herself not a parent.

A number of family law professors, myself included, filed a friend of the court brief arguing that Iowa law does not permit automatic rebuttal of the presumption of "paternity" if the husband is not the biological father.  That should entitle a female spouse also to be a presumptive parent.  I joined this brief because equating parentage with biology is the wrong principle, and I oppose the state for taking that position.  But, and this is a big but on my part, and it's what I discuss in my prior posts, a win in this case will help only children of married lesbian couples in Iowa.  It will mean that Iowa joins New York and Massachusetts in discriminating based on the marital status of a child's lesbian parents, something I abhor.

The best law reform for children of LGBT couples tracks something like the Uniform Parentage Act, with certain modifications.  I've written here about how DC does it.  California courts have done a great job of interpreting its older version of the UPA. Functioning as a parent creates a presumption of parentage.  Delaware defines parentage to include de facto parents. These have nothing to do with the marital status of a child's parents.  I wish Lambda had worked with family law practitioners and professors in Iowa on legislative reform not limited to LGBT families, and certainly not limited to children of married lesbian couples.  The legislature may not be LGBT friendly, but that need not get in the way of parentage law reform, something Iowa desperately needs.

Whatever happens in Gartner, I hope that will come next.

Kansas nixes second parent adoption

A Kansas appeals court has ruled that the state does not allow second parent adoption.  The case decided earlier this month, In re I.M., involves heterosexuals. I.M.'s mother married J.M. when I.M. was a toddler.  They raised I.M. and a biological child they had together for three years and then they divorced.  For the subsequent three years, even though I.M's mother remarried, J.M. had parenting time with both children.  I.M. refers to him as her father.

J.M. filed to adopt I.M.  The mother consented, on the condition that her rights not be terminated.  (I.M. had an identifiable biological father, but J.M. alleged that his consent was not necessary because he had had no relationship with I.M.).

In a short opinion, the Kansas Court of Appeals ruled that the statute did not permit such an adoption.  Because J.M. was no longer married to I.M.'s mother, his adoption of I.M. would terminate the mother's parental rights. The court acknowledged that some states do allow such adoptions but refused to interpret Kansas law to do so.

There is no way to distinguish this case from a second parent adoption involving a same-sex couple.  So unless the Kansas Supreme Court some day rules otherwise, there will be no second parent adoptions for children of gay and lesbian parents in Kansas.

Post-election thoughts on the marriage ballot measures

I can't disagree that the ballot box victories for same-sex marriage, including Minnesota's defeat of a constitutional amendment to ban it, are a turning point.  I am, however, troubled by one aspect of the press coverage of these victories.  The anchors and newspapers have repeatedly said that, before last night, every ballot measure against same-sex marriage had been successful.  This is a little misleading.  Voters in Arizona in 2006 defeated Prop 107.

Prop 107 was a constitutional amendment banning both same-sex marriage and recognition of rights for unmarried couples.  The latter consequence was phrased this way:  "no legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage."  The majority of states that ban same-sex marriage also have language like this (generically called "super-DOMAs"), that can mean the end of domestic partner benefits for straight and gay public employees (this happened in Wisconsin) and bans on recognizing any rights for unmarried couples.  (In Ohio, some courts invalidated laws against domestic violence aimed at an unmarried partner because of that state's super-DOMA;  that interpretation was ultimately invalidated by the Ohio Supreme Court).

Prop 107 lost at the polls.  Widely credited for the loss was a campaign highlighting that straight couples would lose domestic partner benefits they had as employees of the cities of Tucson and Phoenix and other public employers.  The benefits were also available to same-sex couples.

Two years later, Arizona voters did approve a constitutional amendment limited to banning same-sex marriage, in other words not a super-DOMA.

So it is true that Arizona voters ultimately rejected same-sex marriage.  But omitting mention of Prop 107 omits an important part of the history of these ballot measures.  The Prop 107 vote stands for the proposition that voters don't believe all couples who can marry should have to marry.  Since super-DOMAs have passed in so many other states, the Arizona defeat is the evidence that there is some resistance to stigmatizing unmarried couples -- gay and straight.

I think news coverage of yesterday's ballot measures should have included this fact.  Instead of saying that no ballot initiative against same-sex marriage had ever been defeated, reporters could have said that before last night only one state had defeated such a measure, and that was when it also banned any recognition of unmarried couples.

As I often write here, I worry that the fight for marriage equality has pushed off the agenda of the gay rights movement any support for same-sex couples who don't marry when it is available.  I actually discuss that extensively in the context of the decision of Lambda Legal to abandon the interests of unmarried straight couples in Arizona who lost their domestic partner benefits.  (See my post here.)

I don't think most people know about super-DOMAs, and I consider the coverage of yesterday's ballot measures that omitted the Arizona experience as a missed opportunity to provide important information.

Garnering support for marriage equality with a problematic message

By now everyone knows there are four same-sex marriage ballot initiatives coming up next month. Minnesota's is the old-fashioned kind -- a constitutional amendment to ban same-sex marriage.  Maryland and Washington will vote on whether to keep from going into effect legislation passed last term allowing same-sex couples to marry.  In Maine, voters will decide whether to enact marriage equality by popular vote; if it passes, it will be the first state to grant marriage equality this way.  Three years ago, Maine voters rejected a marriage equality law passed by the legislature.

Of course I hope the Maine initiative is successful (and that the other measures fail).  But I am deeply troubled by an apparent switch in focus by the campaign for marriage equality.   According to Thursday's Los Angeles Times,  the campaign manager of Mainers United for Marriage, Matt McTighe, reports that campaign volunteers going door-to-door talking to voters "talk less about gay rights and more about marriage as a stabilizing force in society."  In other words, this fight for marriage equality is less about equality and more about marriage.

But what does it mean to sell same-sex marriage because marriage is a stabilizing force?  If we denominate those who marry the virtuous ones, then those who don't marry must be de-stabilizing.  I have never understood how this can be a pro-gay message, when up until recently there have been no same-sex marriages but there have been a whole lot of long-term same-sex relationships, with and without children, contributing to civic life and their communities.  The gay rights message can't be that we think those families were a de-stabilizing force on society because they weren't married.  So the message must be a dig at heterosexuals who don't marry, and that's the same message right wing organizations use when they blame single mothers for all our social problems, thereby displacing responsibility from the income inequality, inadequate education system, race and sex discrimination, and lack of public support for childrearing that really cause our nation's problems.  (For more on this, read one of my early blog posts here.)

Long-time marriage equality opponent David Blankenhorn got a lot of attention this past summer for his conversion to marriage equality supporter.  In a recent video opposing Minnesota's constitutional amendment, Blankenhorn explains that he dropped his opposition because opposing gay marriage was not helping achieve his goals of having "society renew its commitment to the marital institution" and having more children grow up in stable two parent homes.  In his New York Times piece explaining his conversion, he called for a coalition of gay and straight people who want to "strengthen marriage."  And he tells us what that means. His agenda is:  people should marry before having children and should marry rather than "cohabit." He also hopes this coalition will agree that children born from assisted reproduction should have a "right to know and be known by" those who donated the semen or eggs that resulted in their birth.  (He calls those people "their biological parents," but I am more critical of using the word "parent" in this context.)  So by his account, same-sex couples should not live together until they marry; should not have children unless and until they marry; and should not use anonymous sperm or egg donors to procreate.  With friends like that....

I'm not saying that Mainers United for Marriage believes those things.  But consider its name.  Not Mainers United for Marriage Equality, or even Mainers United for the Freedom to Marry.  Mainers United for Marriage.  If you didn't know otherwise, that could be the name of a group opposing marriage for same-sex couples, because, after all, those groups say they are for marriage. I, on the other hand, am for equality.  And proud of it.

Kentucky Appeals Court reverses trial court ruling against lesbian mother

It still happens today.  Lesbian mothers lose custody of their children to their ex-husbands because they are lesbian.  Hard to believe, in this era when conservatives often support civil unions -- just not marriage -- for same-sex couples.  But it's true.

And that's what happened to Angela Maxwell and her three children earlier this year when a Hardin County, Kentucky judge awarded sole custody to the children's father, Robert. The judge also limited Angela's time with the children and said neither parent could live with a nonmarital partner while the children were with that parent. For more than a year before the trial, the children who were about 14, 12, and 6, had been alternating weeks between the two parents.  That temporary arrangement included a prohibition on unrelated guests spending the night when the children were there, so it appears that Angela was not living with her same-sex partner, Angel.  At the custody trial, Angela asked that the joint custody continue and that the overnight restriction be lifted.

The trial judge was not subtle about the reason she awarded sole custody to Robert.  "The [mother] is seeking to live an unconventional life-style that has not been fully embraced by society at large," the judge ruled, "regardless of whether or not same-sex relationships should or should not be considered sexual misconduct.  Like it or not, this decision will impact her children in ways that she may not fully have considered and most will be unfavorable."

In an opinion released today in Maxwell v. Maxwell, the Court of Appeals reversed, noting that there was no evidence that the children were harmed by their mother's relationship.  The child were doing well; the two older children wanted the every-other-week schedule to continue; and the youngest child's teacher thought a change in the custody arrangement would not be good for the child.

The trial judge had relied on an earlier case holding that the court did not have to wait until children were harmed to consider a parent's misconduct.  But the appeals court said the issue was whether being in a same-sex relationship is sexual misconduct.  The court found it was not, citing the decriminalization of sodomy and a Kentucky case awarding visitation rights to a nonbiological lesbian mother (which I wrote about here).  The court went further, however.  It cited the US Supreme Court decision in Romer v. Evans for the principle that "homosexuals cannot be singled out for disparate treatment," which the trial judge had done here.  It also cited Palmore v. Sidoti, in which the Supreme Court found unconstitutional a change in custody of a white child based on her mother's marriage to a black man, for the principle that "custody cannot be denied based on the biases of others."  The court also cited a Kentucky case for the principle that Angela had a fundamental right to raise her children, concluding that "it is a violation of Angela's due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor."

The trial judge had cited as future harm to the children the possibility that they might be teased about their mother's relationship.  The appeals court properly pointed out that if that happens it will occur whether their mother has custody or not, and that it is more harmful to the children to deprive them of a loving and positive relationship with their mother.

With all of this, and the great principle this case stands for, I offer a number of caveats.  First, as I began this post, this mother should have never lost in the first place. Most custody disputes settle before trial.  They settle in the shadow of what will happen in court.  It is very expensive and emotionally draining to go through a trial and then an appeal.  Knowing that a trial judge can rule the way this one ruled can influence a gay or lesbian parent to accept a bad settlement (like one that includes a restriction on living with a partner, or that settles for visitation rather than custody).  And that still happens today, in 2012, precisely because of the bias this trial judge showed.

Which leads to my next caveat.  This trial court was transparent about its reasoning.  All parents make mistakes and there is almost always something other than sexual orientation that a judge can use as a basis for a decision.  In fact, in spite of this appellate court win, the court sent this case back to be retried.  In other words, it's not over yet for Angela Maxwell and her children (I can only hope they settle at this point.)  Even the prohibition on her partner's overnight presence is still on the table; there just need to be evidence tying the restriction to the children's best interests.  Some children are uncomfortable with a parent's same-sex partner, and that has been used over and over to justify restrictions.  The two older Maxwell children said they liked their mother's partner, but what if they hadn't?  Furthermore, all the children were doing well; the appeals court calls them "flourishing."  Well, not all children do well.  It is still possible for a trial judge to find  a causal link where none exists between a parent's sexual orientation and the problems that a child might be experiencing.

And here is a final caveat.  The appeals court says this to the trial court's consideration of the children's best interests on remand when it comes to the restriction on Angela's partner:  "Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant."  I'm thinking the changes-in-moral-standards part is about how homosexuality isn't thought of as immoral in the way it once was.  But the inability to marry part?  Are we headed to a time, when same-sex marriage is more common, when a gay parent will be faulted in a custody dispute for not marrying a same-sex partner?  That's not a day I look forward to.....

Illinois nonbio mom can pursue custody and visitation

The Illinois Appellate Court, Fifth District, has afforded a huge win to nonbio moms of children conceived through donor insemination.  The decision in In re T.P.S. and K.M.S. was handed down last week.  The opinion is remarkable because previous Illinois appeals courts have ruled against nonbio moms.  And in a horrendous opinion a few weeks ago, a different Illinois appeals court ruled in In re Scarlett Z.-D. against the parentage claim of a man who raised an adopted child for four years with his female partner but never did a second parent adoption.  The child had a last name consisting of the hyphenated name of her two parents, and called her father "daddy," but the court allowed the adoptive mother to completely erase the man from the child's life when their relationship ended.  (To the lesbians-behaving-badly cases I now add a category of heterosexuals-behaving-badly...).

The T.P.S. court took no position on whether Scarlett Z.-D. was corrected decided.  Instead, it ruled that the status of children born through donor insemination should be analyzed under different legal rules.  The case the court relied upon is In re M.J., from the Illinois Supreme Court.  I am very familiar with this case.  The court allowed a mother to pursue child support from her former unmarried partner for a child she conceived through donor insemination, with his consent, while they were together as a couple.  There are numerous cases involving children born to married heterosexual couples who use donor insemination, even when no statute clarifies parental rights and responsibilities.  M.J. is the only one I am aware of where the heterosexual couple was not married but the court nonetheless determined that the mother could pursue a common law child support claim.

The T.P.S. court read M.J. as carving out law specific to children born of donor insemination.  Such children have a right to support from their "parents"  which allows a common law cause of action for support against a nonbiological parent.  Similarly, they also have a right to the "physical, mental, and emotional support" of both parents, which means that Cathy, who was the children's primary caretaker, could file a common law action for custody and visitation rights.  Illinois has a statute that makes a husband who consents the parent of a child conceived through donor insemination of his wife.  The M.J. court concluded that this did not bar a common law support action between unmarried partners, and the T.P.S. court extended that reasoning to common law actions to establish an unmarried partner's parental rights.  "Without an express legislative intent," the court wrote, "we will not assume that the legislature intended for the children born to unmarried couples through the use of reproductive technology to have less security and protection than that given to children born of married couples whose parentage falls within the purview of the Illinois Parentage Act."

The opinion's takeaway:  "Parental rights may be asserted based on conduct evincing actual consent to the artificial insemination procedure by an unmarried couple along with active participation by the nonbiological partner as a coparent."  In this case, not only was there coparenting but the couple had obtained a guardianship for Cathy over the two children.

The T.P.S. court found that a 1999 appeals court ruling against a nonbio mom was not good law because it was decided before M.J.  There is one other truly terrible Illinois appeals case, and this came after M.J.. In In re Simmons, an Illinois appeals court ruled that the marriage between a woman and a female-to-male transgender man was a void same-sex marriage.  The couple had a child through donor insemination who was six years old when the relationship dissolved.  The court ruled that the father could not file for custody or visitation because he was not a biological or adoptive parent.  The T.P.S. court determined, essentially, that Simmons applied M.J. incorrectly.

Nonbio mom Cathy can now prove common law contract and promissory estoppel theories to support her claim for custody and visitation.  Although the language is a little ambiguous, I actually think the court has said that Cathy can prove she is a parent of the two children born to her partner through donor insemination.  "If an unmarried person causes the birth of a child by the delibrate, premeditated conduct of artificial insemination under the express agreement with the mother to serve as a coequal parent," the court wrote, "that person should receive the same treatment in the eyes of the law as a person who biologically causes conception."  Right on!  The importance of determining that Cathy is the children's parent is that they thereby gain the right to inherit, obtain survivors benefits, etc that go with parentage.  Also Cathy would be able to block any attempt by her ex-partner to allow someone else, like a new partner, to adopt the children.

As for any constitutional claim by Dee, the children's biological mom, the court says that her voluntary agreement to create a family through assisted reproduction and coparent with her partner takes care of any such concerns.  Cathy actually made some arguments about her constitutional right to raise the children as their equitable parent; the court rejected this claim.

It's too soon to know if the bio mom will ask the Illinois Supreme Court to hear this case.  If it does, I hope that M.J. will give the court the ability to head off any possible distinction between "legitimate" and "illegitimate" children of lesbian couples in Illinois.  By that I mean the following.  Illinois lesbian couples can now enter civil unions.  Doing so gives them the rights and responsibilities of marriage. This means that children born through donor insemination to civil unioned couples have two parents by virtue of the statute that makes a consenting husband the father of a child born to his wife using donor insemination.  If a child of the identical couple who have not entered a civil union has only one parent, then there will be two classes of children in Illinois based on the marital status of their parents -- something the demise of "illegitimacy" decades ago was supposed to end for children of heterosexual couples.

The survey that proves nothing about the intracommunity debate about same-sex marriage

It's September 12, 2001. Are you a patriotic American?  Yes or no.  Just yes or no.  No other choices and no discussion.  I venture to guess that almost every American would have said yes if asked on that day.  There is something about being attacked that produces unity against an enemy.  But the answer to that question at that moment in time would have said nothing about deep divisions in this country over American imperialism or treatment of immigrants from Muslim countries.  For that, more questions would need to be asked.  And those answers would certainly have shown disagreements.

What I have just written seems so obvious, and yet two researchers of LGBT issues have made a mistake of a similar nature.  In this Bilerico post last week, Ken Sherrill and Andrew Flores report on a survey asking almost 1200 LGBT respondents whether they support allowing same-sex couples to marry.  Yes or no. 85% said yes.  And the small minority opposing it were much more likely to be conservatives than liberals.  From this Sherrill and Flores have concluded that the view Paula Ettelbrick expressed over twenty years ago, skeptical of same-sex marriage, lacks support, that "marriage equality is not a matter of serious debate among rank-and-file LGBT people."  The authors actually suggest that maybe intellectuals, academics and journalists were the only ones to ever doubt the goal of marriage equality.

Do you support security for Jews in Israel?  Yes or no.  Just yes or no.  Can you imagine 85% of Jews saying yes and then concluding there is no serious debate among Jews about the parameters and policies of the state of Israel?  It's ridiculous, as any one day's perusal of Haaretz would reveal.

Political opposition to marriage for same-sex couples today is an attack on LGBT people.  Opponents think our open and proud existence causes social harm and that our relationships are less valuable than heterosexual ones.  So to a yes-or-no question about supporting marriage for same-sex couples, gay rights supporters will almost always say yes.  Paula Ettelbrick said yes.  I say yes, and readers of my book and my blog know I think much of the advocacy in the name of marriage equality is divisive, destructive, and misguided.  85% of LGBT people saying yes says nothing about the extent and the content of disagreement about the tactics and priorities of the movement for marriage equality.

To get at real divisions among LGBT people, here are just a few questions a survey could ask:
Should a couple have to marry to make health care decisions for each other?
Should a couple have to marry for a court to have the power to divide their property fairly if their relationship ends?
Do you think the fight for same-sex marriage has taken money and time away from more critical issues?
Do you think marriage should be a religious institution only and that the civil status for all couples should get a new name, like civil partnership?
Should an employer provide domestic partner benefits to both same-sex and different-sex couples?

Or how about this more complex question:
Imagine two married couples.  The income in each household is $80,000 a year, but in one household one spouse earns all the income.  In the other household, the two spouses each earn $40,000 a year. Right now our Social Security system gives much more money to the couple in which one spouse earns all the money than it gives to the couple in which the two spouses contribute equally to the income.
Which goal is more important to you?
A.  Make sure married same-sex couples with one earner get the benefits that married different-sex couples with one earner get now, or
B.   Change the way Social Security is calculated so that two-income marriages, gay and straight, are no longer discriminated against?

(Caveat:  I do not claim any competence in designing appropriately worded survey questions so I would leave that to someone else....)

I think those types of questions would uncover the differences that exist among LGBT people about marriage.  And I think the conclusion that Sherrill and Flores drew from the yes-or-no survey data they analyzed, that there is no left critique of same-sex marriage, is wrong enough that they should withdraw it.

European Court of Human Rights hears another second-parent adoption case

Earlier this year, the European Court of Human Rights ruled against a lesbian couple's claim that France's refusal to allow second-parent adoption violates the European Convention on Human Rights.  I wrote about that case, Gas and Dubois v. France, in an earlier post.  Today, the ECHR heard another case, X. and others v. Austria, but this case raises a different issue.  France did not allow adoption by any unmarried partner of the birth mother.  Austria, on the other hand, allows a mother's unmarried different-sex partner to adopt, but does not allow a mother's same-sex partner to adopt.  Thus this case is explicitly about the distinction based on sexual orientation.  In Gas and Dubois, the ECHR ruled that the case was not about sexual orientation.  (That doesn't make it better in my opinion, as every adoption is examined to be certain that it serves the child's best interests and that analysis can be done for unmarried as well as married couples.)

The webcast of the case argued today is available in English here.  The lawyer representing Austria stated that Austrian law is based on the principle that the child has one father and one mother.  She argued that adoption law is based on this principle as well because adoption attempts to recreate the circumstances of the biological family.  She also asserted that sexual orientation was irrelevant, although that seems patently ridiculous since she explicitly said Austria did not want a child to have two mothers or two fathers.  (Austria passed a statute in 2010 forbidding adoption by same-sex couples, but that law is not at issue in this case, which was decided under prior law.  That statute sure does show the position of the Austrian government, however.)

The couple is represented by Helmut Graupner, an Austrian attorney who is a leading European gay rights advocate.  He pointed out that only four European countries allow an unmarried different-sex partner to adopt but not a same-sex partner.  Forty-two countries, on the other hand, either allow only a married partner to adopt or allow both different- and same-sex unmarried partners to adopt.  Graupner argued directly that children of same-sex couples are not disadvantaged when compared to children of different-sex couples, and he listed all the child welfare professional associations who support adoption by same-sex couples.  He also referred to all the ECHR law against discrimination based on sexual orientation, and the Inter-American Court of Human Rights ruling in Atala (which I covered in this post and which is the strongest ruling in favor of lesbian and gay parents under international human rights law.)

Intervenors supporting Austria provided the Regnerus study for their position against allowing adoption by same-sex couples, which Graupner refuted by noting, as everyone has done by now, that the study compared children of intact married heterosexuals with children whose parent had ever had a same-sex relationship, not with children who had lived for a long period with a stable same-sex couple.  (For an example of a typical rebuttal to Regnerus, see this friend of the court brief filed in one of the DOMA cases.)

The child in this case has been raised by the mother and her partner for thirteen years (the case started when he was nine; he is now seventeen.) The child does have a biological father who did not consent to a second-parent adoption. The lawyer for Austria stressed this, but Graupner noted that there is a legal process and standard for overcoming the father's objection, and that process and standard would have been applied had the mother's partner been male, but it was not available to her female partner.  The lower courts explicitly ruled against the couple based on the mother's partner's legal inability to adopt, something one of the courts approved based on the child's need for attachment to one male and one female parent. So no court ever ruled on whether the father's refusal was justified or should be overcome.

Pennsylvania court rules that father should not have been deprived of custody based on his past polyamorous relationship

A Pennsylvania appeals court has overturned a trial court order giving custody of two children to their maternal grandparents rather than their father.  The trial court penalized the father for his past polyamorous relationship.  The case, V.C. and C.B. v. J.E.B. and C.C., is the first one I can remember using the phrase "polyamory" or discussing the practice without prejudgment.

The father, C.C., and the mother, J.E.B., never married.  The two resided with the mother's husband, and the three had a polyamorous relationship.  In June 2007, when the children, A.B. and Z.B., were approximately two and three years old, the older child sustained a spiral fracture to her leg, prompting an abuse investigation by the New Jersey Department of Youth and Family Services.  While the investigation was pending, the children were placed with the mother's parents.  Although the agency determined there was no abuse in about six months, the children remained with their grandparents another nine months, until September 2008.

Sometime in 2007, another woman joined the polyamorous relationship.  The father married that woman and had a daughter with her.  When A.B. and Z.B. returned to their parents, they lived with all four adults until the four-way polyamorous relationship ended and the father and his wife moved to an adjoining apartment in the same building and, in April 2010, to a new home, still walking distance from the mother's home.  The mother and father shared legal custody, rotated physical custody, and gave the grandparents partial custody (otherwise known as visitation) on alternating weekends.

In February 2011, the grandparents filed a petition that either they or the mother receive primary custody.  This prompted the father to file for shared legal custody with the mother and primary physical custody with him, and for the mother to request primary physical custody with her.  After a December 2011 trial, the judge awarded primary physical custody and sole legal custody to the grandparents, with two non-consecutive days of visitation to the mother and the father monthly.

The father appealed.  (The mother did not file an appeal but she did file a brief asking that the trial court order be overturned.)  The appeals court emphasized the high burden of proof on the grandparents.  In fact, this case reminded me of several cases in the 1970 and 80s in which lesbian mothers lost custody to their own parents, the children's paternal grandparents, or other relatives. (The most publicized such case actually happened in the early 1990s, when Sharon Bottoms lost custody of her son Tyler to her mother....More on another similarity to that case later).  The court said the grandparents needed overcome by clear and convincing evidence the presumption in favor of the father, and that the trial court was wrong to find they had sustained that burden.

The appeals court said the judge interjected "artificial morality concerns" into its determination, something not permitted by the list of factors in the custody statute.  Although the trial judge claimed otherwise, the appeals court found that the judge's "general disfavor of polyamory" played a role in the decision.  At the time of the trial the father was no longer in a polyamorous relationship.  They appeals court noted that "while ultimately unsuccessful, his former experimentation with that lifestyle did not harm the children and does not currently affect the children negatively."  The appeals court called polyamory "a nontraditional sexual practice," but considered it analogous to other cases in which a parent's previous sexual conduct was found irrelevant absent evidence of harm to the child.

Sex figured into this case in another way.  The trial court considered the father's wife's friendship with a professional dominatrix and her blog post in which she described herself as a "closet poly."  The appeals court found that "the trial court's preoccupation with these morality issues is improper, particularly where, as here, there is a dearth of evidence to suggest that the sexual practices affected the children at all."

The appeals court was also disturbed about the mother's testimony that her uncle had raped her over a seven year period when she was a child and that the grandparents had been indifferent to the mother's experience, even to the point where the grandfather insisted on inviting his brother, the rapist, to the mother's wedding.  "We are alarmed," wrote the appeals court, "by the trial court's utter failure to confront mother's allegations of sexual abuse by a family member." This aspect of the case reminded me of Sharon Bottoms, who testified that her mother's live-in male partner had raped her as a child; Sharon's mother had that partner move out only when she decided to fight for custody of Tyler.  The courts consistently ignored these facts in awarding custody to the grandmother.

The appeals court was so troubled by the trial court order that it awarded custody to the father, rather than remand for a new determination.  As a side note, I am impressed that the trial occured only nine months ago.  Too often, appeals drag on and children get used to living in a home they should never have gone to.  This can make it hard for the parent who wins on appeal to ever get the children back.

There are a couple of troubling things about the case.  The polyamory was in the past.  That might be read as a factor as important as the lack of adverse impact.  I hope in the future the case will be read to require a finding of adverse impact even if the parent is still in a polyamorous relationship.  Also, the court said that had the father and the grandparents been on a level playing field, it would have been disinclined to disturb the trial court's findings that the grandparents were "better suited to foster [the children's] development."  This could give a window of opportunity to a parent opposing the other parent's polyamorous lifestyle to use that fact without a rigorous examination of the impact on the children.

Still, this case is an overall victory for separating moral judgments about sex from determining a child's best interests.

The right not to marry? Ruthann Robson thinks this might lurk in the right to marry cases

I consider CUNY-Queens law professor Ruthann Robson a fellow traveller among critics of the single-minded quest for marriage equality.  I am happy to see that she has contributed to the SCOTUSBLOG online symposium on the same-sex marriage cases that the Supreme Court will be discussing tomorrow at their conference.  Once we know whether (more likely which) of the cases the Court will hear this term, the work of briefing those cases will begin.

I fear, as always, that arguments for marriage equality that idolize marriage actually create less space for families and relationships not organized around marriage.  Robson suggests an alternate possibility, that if the Court finds the right to marry fundmental then the right not to marry should also be considered fundamental.  Here is how she puts it:

For if the Court deemed the right to marry fundamental, then the concomitant right – the right not to marry – should likewise be fundamental. Revived proposals to condition poverty assistance on marital status, as well as tax benefits and burdens based on marital status, would require strict judicial scrutiny. While “marriage equality” advocates have often quelled the objections of more nonconformist LGBT activists with assurances that same-sex marriage will not mandate marriage, a judicial commitment to strictly scrutinize government laws channeling people into marriage might make the choice whether or not to marry less legally over-determined.

I find myself skeptical.  I think Robson may have underestimated the extent to which marriage equality supporters want everyone -- including gay people -- channeled into marriage.  But how great if it turns out just the way she says!

United Nations document omits LGBT parents

The United Nations Office of the High Commissioner for Human Rights has released a publication, Born Free and Equal: Sexual Orientation and Gender Identity in Human Rights Law. Sounds good, right?  Well not if you're looking for support for LGBT parents and their children.  The publication is completely silent on that.

This is a puzzle.  It's not like there is no law.  I wrote extensively about the decision of the Inter-American Court of Human Rights vindicating the rights of Karen Atala and her children.  The European Court of Human Rights ruled in favor of a gay father deprived of custody based on his sexual orientation in Salgueiro da Silva Mouta v. Portugal.  It also ruled that France could not ban adoption by a gay or lesbian person in E.B. v. France.  There are numerous law reviews articles on international human rights law and LGBT parents, as well as a chapter on parenting in a casebook, Sexual Orientation, Gender Indentity, and Justice: A Comparative Law Casebook, available on line.

The UN report does have a chapter about discrimination (and says it is bad), but nothing in that chapter mentions discrimination in adoption or access to assited reproduction or child custody.  The report lists some areas of concern when it comes to discrimination, naming employment, health, and education.  There is mention that States need not allow same-sex marriage under international human rights law but that same-sex couples should prevail on anti-discrimination grounds when it comes to such matters as pensions, inheritance, and other partner circumstances.  This makes it especially odd that the report does not mention LGBT parenting when international human rights law definitely does contain a nondiscrimination principle in that area.

I don't even have a guess about the reasoning behind this omission.  But it troubles me greatly.  (Thanks to Shannon Minter for bringing this to my attention.)

Heterosexual mother behaving badly

In my circle of LGBT family lawyers, we talk about LBBs, lesbians behaving badly.  This is customarily a shorthand reference to a biological (or legal adoptive) mother who deprives her child of a relationship with her ex-partner, who the child views as also being a parent.  Well, I always say that whatever happens in our families happens in straight families, only more often (since there are more of them).  And a case from Illinois in the last couple of weeks reminds me how true this is.

The family in the case, In re Scarlett Z-D, consists of Jim and Maria and the daughter that Maria adopted as a 3 year old in Slovakia in 2003 while visiting family there.  Jim did not adopt with her because the couple was not married, but he went to Slovakia several times, and was involved in and paid for the process, which took a year.  In 2004, Maria and Scarlett returned to the US and lived as a family with Jim.  For four years, Scarlett called Jim "daddy" and Maria held him out as Scarlett's father.  He did not adopt her, however, and in fact Maria never did a US adoption of her. (This is not required but parents of international adoptees often do it).  It also appears from the initials that comprise Scarlett's last name in the caption of the case that Maria gave the child a last name that hyphenated her name and Jim's name.

When the couple's relationship ended, you guessed it, Maria cut Jim out of Scarlett's life.  Jim filed both a parentage action and a request for custody and visitation rights.  There was a trial that established the close bond between Jim and Scarlett and the harmful consequences of removing Jim from Scarlett's life.  The trial judge was completely sympathetic to Jim's argument but felt bound by the law to dismiss his case. Jim appealed, and the appeals court also said that under Illinois he was not a parent and lacked standing to even bring an action concerning Scarlett's custody.

Illinois is one of the states whose appellate courts have, in my opinion, overread Troxel v. Granville. By that I mean that the courts have attributed more rights to a legal parent than I believe Troxel requires when it comes to the question of court-ordered visitation by someone who is not a legal parent but has functioned as one.  Plenty of other states have found that a person who has fully functioned as a parent to a child, with the approval of the child's legal parent, can get visitation with that child, or even custody, without running afoul of Troxel.

The Scarlett Z-D court repeated pronouncements from other Illinois cases about Troxel but also held the neither Illinois statutory law nor Illinois common law allow a person in Jim's position to petition for custody or visitation.  The court did indicate that the legislature could fix this problem through statutory reform.

And that's where the matter stands in Illinois.  Lesbian legally unrecognized moms have faced this problem there.  And in a particularly horrendous case an FTM transgender father lost all contact with the children his wife gave birth to as a result of jointly planned assisted conception because the court ruled he was legally female, therefore the marriage was invalid, therefore he was not the children's father.

The Illinois legislature needs to act to end such tragic decisions that rob children of parental love and support in this way.

Chapter Six did change my life

I still have my original paperback of Shulamith Firestone's The Dialectic of Sex.  I read it in the winter of 1972.  The tagline on the cover read:  Chapter Six Might Change Your Life.  Chapter Six was about love.  Here's what I remember.

I thought love (including heterosexual love) was personal, that it was about a relationship between two people.  It never occurred to me that there could be a political component to an intimate relationship, but Shulamith Firestone showed me I was wrong.  And that did change my life.

I last read Dialectic of Sex 15 or 20 years ago (I think...I do lose track of time....).  I was preparing materials for a law school seminar on feminist theory in action.  My students had externship placements in various government agencies and nonprofits, and once a week we got together and discussed feminist theory as it related to class readings and their work experiences.  I wanted to give them some readings from before there was a field called "feminist jurisprudence."  I thought about the readings that had radicalized me and went back through a lot of them to see what I might assign.

Some of what worked in 1972 held up very well.  Dialectic of Sex didn't.  If my goal was selecting readings that would speak to my students, then the readings had to be in a language they could relate to.  Firestone's book wasn't it.  The problem wasn't the content.  I would not have minded letting them discuss whether reproduction outside the female body was a necessary component of feminist revolution.  I don't think it was Marx and Engels either; I did choose something from socialist feminism for them to read (Zillah Eisenstein maybe...).  I remember thinking it was the tone or the rhetoric, that it would distract them.

My copy of the book is right now over 2000 miles away from where I write this entry.  So I can't refresh my memory.  I had no idea Firestone suffered from paranoid-schizophrenia.  The photo of her in all the obituaries looks well, a bit like how I looked in those days, with full, long hair and big eyeglasses. I had no idea she was so isolated that all the newspapers would have would be that 40 year old photo.  But I do feel that she is getting the attention she deserves, a lengthy, serious New York Times obit, for example.

After all, she wrote something that changed my life.  And I wasn't the only one.

Stop blaming single mothers

 I wish more LGBT groups would stand up for single mothers of all sexual orientations.  Instead I want to cry - and scream - every time anyone argues for same-sex marriage by aligning with the rhetoric that blames single mothers (and therefore not same-sex couples) for our social problems.  So I am grateful to Legal Momentum (formerly NOW Legal Defense and Education Fund -- don't get me started on these types of name changes....) for consistently demanding that we look at wealth inequality, sex discrimination, lack of state and employer support for caregiving, etc as the causes of the disadvantages faced by children living in poverty, including those with single mothers. (I recently discussed this here).

Well Legal Momentum has just published a simple fact sheet on child poverty and births outside marriage.  Here it is.  By looking at the statistics from other countries, it is possible to see that births outside marriage does not cause children to be poor. The level of child poverty in the US is an outrage and a tragedy.  Other countries do much better, even with nonmarital births as high or close to as high as ours.

I think many gay rights supporters would be surprised to see how often the arguments against same-sex marriage turn out to be about single mothers.  For example, the argument by supporters of Prop 8, in their petition to the US Supreme Court to reverse the 9th Circuit's opinion in Perry finding Prop. 8 unconstitutional, goes like this:  Allowing same-sex marriage will contribute to the belief that marriage is about valuing adult personal relationships.  It isn't.  Marriage is about channeling the sexual behavior that produces children, often unintentionally, into the family structure that will give the resulting children two parents who live together and raise the children together.  The problem with decoupling marriage from providing for the consequences of heterosexual sexual intercourse, namely children, is that...more children will be raised by single mothers.  And that is the real problem.  So they claim.

Advocates for LGBT families usually respond to this by saying how silly it is to argue that letting same-sex couples marry will produce more children of heterosexuals raised by single mothers.  But, really, we need to be careful not to jump on the bandwagon of even hinting that children shouldn't be raised by single mothers.

Kenneth Miller conviction important, but civil suit for money damages might matter even more

I don't know if Janet Jenkins will see her daughter again.  And I think it possible that, even if she does, Lisa Miller's brainwashing of Isabella might make a meaningful reunion impossible, at least without significant counseling intervention.  So Lisa Miller might actually get what she wants -- keeping Isabella away from her other parent in violation of several court orders.

That's where this week's conviction of Kenneth Miller and civil suit against numerous individuals and groups comes in.  Miller might go down a hero in some circles, and if he is incarcerated that might make him a martyr of sorts.  But money talks, and if the civil suit costs the defendants a lot of money that might actually deter future efforts to obstruct custody and visitation orders.

This tactic reminds me of the Southern Poverty Law Center's use of civil law suits to shut down several hate groups as a result of large damages awards.  Such cases take a long time from filing to resolution.   Civil litigation in federal court is a slow and often cumbersome process.  But ultimately a case comes to trial, and a large verdict in favor of Janet Jenkins (and Isabella, also a named plaintiff) will make others think more than twice before breaking numerous laws to further the belief that a child should be shielded from her roots as a product of a lesbian relationship and from a parent who raised and cared for her until unwarranted obstruction.  And if it uncovers evidence that Miller's lawyers at Liberty University School of Law participated in the kidnapping efforts, I hope it cripples that school's efforts to teach students to obey a narrow and rigid (and of course anti-gay) idea of God's law over the civil laws that bind all of us.

Criminal trial in connection with Miller-Jenkins custody case underway in Vermont

The trial of a man accused of helping Lisa Miller transport her daughter to Nicaragua began last week and continues over the next couple of days.  This is the latest installment in the legal cases arising from Lisa Miller's refusal to allow her daughter's other mother, Janet Jenkins, to exercise her court-ordered visitation rights.  I've chronicled the numerous court rulings in this case over the last three years.

Kenneth Miller (no relation) is on trial for aiding in international kidnapping.  The New York Times summarized the first week's testimony here yesterday, and the Burlington Free Press publishes daily reports on the trial's progress.  The defendant is expected to argue that he thought Lisa had the right to leave the country with Isabella and didn't know it was unlawful to assist her.  So far, the prosecutor's evidence of his surreptitous behavior suggests that is a total lie.  It will be up to the jury to determine whether Kenneth Miller had the requisite intent to help Lisa Miller evade court orders.

One of the most interesting questions about this matter is whether Lisa's lawyers, Liberty Counsel, played a role in her leaving the country.  That would be a violation of legal ethics and could (should) result in sanctions.  Evidence introduced last week shows that one of the men helping Lisa (but not charged with a crime...yet) did place phone calls both to Liberty University Law School in Virginia and to Liberty Counsel's Orlando office.  Law school Dean Mathew Staver has repeatedly denied that he or his co-counsel knew anything about Lisa's abduction of Isabella.  I have my doubts.  This very interesting blog post recounts that the "correct" answer to a Liberty Law School exam question about the facts of this case was that the lawyer should encourage "civil disobedience" of the court ordered visitation.  Of course the problem with that point of view is that civil disobedience is open, not hidden, and includes taking the consequences of one's actions.  If Lisa's lawyers admitted their role and faced the possible sanction of disbarment or suspension from the practice of law, as well as possible criminal trial, that would be civil disobedience.  It's not civil disobedience if they helped their client violate a court order and then lied about it.

Again a California Appeals Court recognizes that a child has two mothers

A California Appeals Court has once again recognized the parentage of a woman who raised a child with her partner for many years.  This continues a significant line of cases using the “holding out” provision in California parentage law.  This provision is not unique to California.  It actually comes from the original Uniform Parentage Act which created a presumption of paternity for a man who lived with a child and held the child out as his own.  Another provision of the UPA says that insofar as it is “practicable” the provisions concerning paternity should be applied to determinations of maternity.  In 2005, in the Elisa B. case, the California Supreme Court interpreted those two statutes together to find a presumption of parentage for a woman who planned for children together with her partner, received the children into her home, and held them out as her own.

This newest case, L.M. v. M.G., from the Fourth Appellate District, has a couple of distinctive factual circumstances.  M.G. adopted the child in a single parent adoption in 2001.  The child had come to live with M.G. and L.M. immediately upon his birth in November 2000.  L.M. testified that at the time she thought the only way she could adopt the child would be to register as domestic partners and then do a step-parent adoption.  It appears, totally reasonably, that the couple did not want to jeopardize their relationship with the child by trying to do an adoption together.  The court opinion points out that until November 1999, the California Department of Social Services routinely opposed joint adoption by an unmarried couple and that the California Supreme Court did not approve second parent adoption until 2003.

So, L.M. and M.G. raised the child in the same home until 2003.  After they separated, the child lived primarily with M.G. but spent several nights a month with L.M. and vacationed with her.  The child called L.M. “mom” or “mommy” and friends, coworkers, and parents at the child’s school knew that he was L.M.’s son.

And here is the next distinctive feature of this case: this arrangement went on for seven years with no court involvement.  It is very reasonable that a woman in L.M.’s position would not go to court for a determination of parentage and a visitation order when there is a visitation schedule in place and the child continues to have a relationship with both parents.  This court action began when M.G. told L.M. and she would be moving to Europe for 18 months with her new partner.  L.M. believed that was not in the child’s best interests, and she filed a parentage action requesting custody and visitation.

M.G. opposed the parentage petition.  The trial judge found that L.M. was a parent, but did allow M.G. to take the child to Europe for the 2010-2011 school year, subject to L.M.’s visitation rights.  The judge scheduled a follow-up hearing to determine whether the time would be extended the full 18 months.  M.G. appeals, although one wonders why, given that she was permitted to take her son to Europe.

M.G. agreed that L.M. met the criteria for presumptive parentage based on “holding out,” but she argued that the presumption was necessarily rebutted when the child had been adopted by a single parent.  She argued that the single parent adoption amounted to a determination that there was a “one slot parent family.”  Therefore, she argued, there was no “second slot” for another parent to occupy.  The appeals court rejected this argument.  The issue of whether the child could have only one parent never arose in the adoption proceedings; what happened in those proceedings was a determination that the child’s legal ties with his birth parents should be severed and that the adoption by M.G. was in his best interests.

M.G. argued that her parentage conflicted with L.M.’s parentage and that the court should have conducted a weighing process and determined that M.G.’s parentage trumped that of L.M.  But the appeals court said there was no conflict, since L.M. was not arguing that M.G. was not the child’s mother.  M.G. also argued unsuccessfully that the presumption should be rebutted because it amounted to a stepparent adoption without her consent.  But the court noted that a parentage action and an adoption were two different ways of establishing parental status and therefore that was no basis for rebutting the presumption.

This opinion is one more than demonstrates a strong preference for making sure a child has two parents rather than one.  Every time I read such an opinion I am troubled by the tone of disfavor that attaches to single parenthood.  There is no doubt that in this case this child had two parents.  But I am far more supportive of single parents, gay or straight, than even gay-friendly courts  and policy makers.

Be Careful What You Wish For...

The Ettelbrick Project for LGBTQ Family Recognition (named for Paula Ettelbrick), a part of the Stonewall Community Foundation, is sponsoring a program in San Francisco next Wednesday, August 8, entitled, "Be Careful What You Wish For: Making Marriage Victories for Same-Sex Couples a Win-Win for All Families."  The program is fully described here, with logistical information as well.

The program will focus in part on the loss of domestic partner benefits once same-sex couples win the right to marry, and the reasons to oppose such results.  I wrote recently about this phenomenon in Weschester County, New York.

We are seriously in danger of losing protections for a range of families.  In other words, we face the prospect of making marriage mandatory.  In the words of the description of the program, "you get married or you get nothing."

I urge everyone in the San Francisco area to attend.  A similar program was held in New York in June.  For more information about the project, contact its director, Terry Boggis, at terry.boggis@stonewallfoundation.org

Miller-Jenkins update...and musings on going underground to avoid court-ordered visitation

Today's New York Times brings another story about the longrunning conflict over the custody of Isabella Miller-Jenkins, something I have covered extensively in numerous blog posts.  Lisa Miller remains in Nicaragua with Isabella, now 10, having fled there with the help of various fundamentalists to avoid allowing Isabella's other mom, Janet Jenkins, to exercise court-ordered visitation with the child.  From Lisa's perspective as an evangelical Christian, she is doing God's will.  One of her lawyers is quoted in the article as blaming a "misguided legal system" and saying that the court "overstepped its bounds" turning the child over to a person who "lives contrary to biblical truths."

Lisa Miller's actions were (and are) wrong, but I don't want to associate myself with a view point that a parent should never disobey a court order for visitation or custody.  As a lawyer, I could not advise a client to disregard such an order, but as a feminist I cannot forget about the numerous children sexually abused by their fathers yet ordered to visit them.  Probably the most famous example of a mother who defied such an order is Elizabeth Morgan, whose parents fled to New Zealand with their granddaughter, Hillary, to avoid turning her over for unsupervised visits with her father, Eric Foretich.  Elizabeth Morgan spent more than two years in jail in the 1980's for her role in refusing to obey the court order for visitation.  The District of Columbia judge who presided over the trial found the conflicting evidence of abuse "in equipoise."  In other words, he found Morgan could not prove it was more likely than not that the abuse occurred, even though there was plenty of evidence that it did.  There has been an underground railroad of sorts for at least three decades, as women have fled with their children to avoid such court orders.

But here is why I make a distinction between such mothers and Lisa Miller.  When a mother believes her child is a victim of abuse, but a court does not believe her and orders unsupervised visitation, there is a dispute over the facts. In that context, I fear that judges are loathe to believe a father would commit a sexual assualt on his own child.  That leads them to disregard or underweigh evidence.  I remember once when I was in private practice in the late 70's advising a woman whose husband masturbated with their two year old daughter in bed with him.  He never touched the child.  I cringed at the knowledge that the mother would have a hard time proving such an allegation in court.  A judge might even believe she was lying to get an advantage in a custody fight and therefore award custody to the father.  I understand the instinct to protect a child from abuse even if it means going underground, even though I would not participate in such a scheme or advise a mother to do it. When I read about such instances (which still occur) I cut the mother a little slack in my mind because I do not trust all judges to get the facts rights.

But in the Miller-Jenkins case there is no factual dispute.  We aren't dealing with a judge whose assessment of the evidence might be skewed by a resolute unwillingness to believe such things as sexual assault happen between a father and child.  We're dealing with a judge who made a reasonable visitation order for a noncustodial parent which was flaunted by the custodial parent only because she did not want her child around a lesbian.  Lisa Miller clearly believes she made a mistake forming a family with Janet Jenkins, but lots of mothers regret the partners they had children with.  That history cannot be rewritten, however.  Noncustodial parents gets visitation rights, even when there is profound religious disagreement between them -- something that is not at all uncommon as any student of family law knows.  Lisa and the evangelicals supporting her don't believe Janet is a parent, but parentage is determined as a legal matter.  And the court got it right when it ruled that the couple's joint decision to have a child through donor insemination, and all the other factors, made them both parents.

It's really that legal ruling that Lisa and her supporters disagree with.  And for that I cut them no slack. "Biblical truths" (themselves, of course, open to interpretation as the religious leaders who support lesbian and gay families have demonstrated) don't determine legal parentage.  And we would have a very different country if no parent who lived contrary to "biblical truths," as determined by evangelical Christians, could visit with his or her child.

To be clear, had Janet Jenkins lost I would have also counseled her against kidnapping her child.  To my knowledge there has never been a lawyer for a nonbio mom who has advised such a course of action.  It may be a tragedy for a child to lose a parent in such a way, but the answer is changing the law.  The casualities along the way are sad, but still unfortunately unavoidable.  And when the child turns 18, there is always the possibility of trying to resume the parent-child relationship severed by court order.

I feel sorry for Isabella, whose life in Nicaragua does not sound happy.  And I am furious at Lisa Miller, who put Isabella in this situation.  Lisa didn't act in Isabella's best interests.  Elizabeth Morgan's daughter, now 26 and a singer who goes by the name Elena Mitrano, thinks her mother did the right thing. She spoke up about her life in this 2009 article.  Someday Isabella will have her say as well.

Center for Economic and Policy Research publishes extensive critique of blaming single mothers

In response to the front page Sunday NYT piece I critiqued last week, the Center for Economic and Policy Research has published a multi-part analysis of what's wrong with blaming single mothers for income equality.  CEPR's title for the numerous postings by Shawn Fremstad says it all -- Family Structure is Overrated as an Explanation of Inequality. 

Part One criticizes how author Jason DeParle presented the data of respected sociologist Bruce Western in the NYT piece; turns out income insecurity bares more responsibility for inequality than family structure.  Part Two examines the role of gender inequality and poor compensation of child care workers and other paid caregivers.  Part Three refers to the NYT piece as "DeParle's Marriage Plot" and shows how the article overstates the significance of the decision not to marry; all mothers, not just married mothers, are having children at a later age, and married mothers as well as never married mothers have multi-partner fertility because they divorce and remarry.  Part Four reviews evidence that income inequality is a cause, rather than a result, of changes in family structure.  Part Five looks at the claim that children of single mothers have a harder time than children of married mothers moving up on the income scale; Fremstad points to data suggesting this is minimally true if at all, and that children born to unmarried mothers have an easier time climbing the income ladder than those whose mothers are married and then divorce.  (Given the problems associated with high conflict marriages, he also notes that telling women to stay married is not the answer.)

Given that the last post was yesterday, there might be a Part Six and beyond.  I would welcome that.  CEPR is a leading source of analysis about economic issues, including ending poverty and inequality.  I find I can turn to them for real answers when the right-wing pundits (and unfortunately some mainstream media folks like this NYT piece) are trying to distract the public from the policies that would lead to greater economic justice.

Georgia appeals court upholds a second-parent adoption on narrow grounds and expresses doubt about whether such adoptions are allowed in Georgia

It's another lesbian-behaving-badly case, this one entitled Bates v. Bates.  In 2007, a lesbian couple, Nicole and Tina Bates, successfully petitioned a Georgia trial court for a second-parent adoption that made Tina a legal parent of the child Nicole gave birth to after conception through donor insemination.  Three years later, after the couple split up, Nicole went back to the same court and asked for the adoption to be set aside.  (Even after all these years, and everything I know, I cannot write this last sentence without screaming inside.)  The court denied the motion, finding that Georgia law did not allow an adoption to be challenged after six months.  Nicole unsuccesfully petitioned to appeal that order.


Meanwhile, Tina had filed for custody in a different county.  After Nicole lost her initial attempt to void the adoption, she moved to dismiss Tina's custody action by arguing, again, that the adoption decree was not valid.  The judge granted Nicole's motion to dismiss and so threw out Tina's custody petition.  The trial judge found that Georgia does not allow second-parent adoption.  It also ruled that it could not adjudicate custody of the child because the Georgia Constitution prohibits courts from ruling on the "respective rights arising as a result of or in connection with [a relationship between persons of the same sex]."

Tina appealed, and in the Bates decision issued two weeks ago, the Court of Appeals of Georgia, Third Division, ruled in her favor.  But it did so on the narrow ground that Nicole had had her shot at claiming the adoption void and had lost.  Having lost once, she could not relitigate the same issue in a different court. (This legal doctrine goes by the Latin term res judicata.)  In the process of ruling for Tina, however, the court expressed skepticism about whether Georgia does, in fact, allow second-parent adoption.  It suggested Nicole's argument had "merit," and called the practice of second-parent adoption in Georgia "doubtful."   The court therefore sent Tina's custody petition back to the trial court.  The court noted that adjudicating the custody of the child arises out of the adoption decree and not the relationship between Tina and Nicole and therefore does not run afoul of the state constitution. There is no indication in the opinion about when Tina last saw her child.

In the opinion's final footnote, the court noted that "some" of the judges (there were only three on the panel) thought it might be appropriate to estop Nicole from challenging the very decree she previously sought to obtain.  "In the original...petition for adoption," the footnote reads, "Nicole not only affirmatively invoked the jurisdiction of the...court, but her own lawyer prepared the decree she now contends is void.  To some of us, it seems that the present attack upon the validity of that decree amounts to an attempt to play the courts for fools, and that is the sort of thing that judges ought not tolerate."  Nevertheless, because res judicata was a sufficient ground, the court did not need to rule on that alternate ground.  Unfortunately, a 2010 North Carolina ruling showed no such restraint, and did allow a bio mom to challenge -- successfully -- the very adoption decree she had participated in obtaining.

The court's questioning of the validity of second-parent adoption could unfortunately impact the trial judges who have been granting such adoptions.  On the other hand, when Nicole asked the Georgia Supreme Court to review the denial of her motion to set aside the adoption it did not do so.  I don't know what to read into that denial.  I do hope that the judges who believe that Georgia law does allow such adoptions hold their ground until, and unless, a higher court tells them directly that they are wrong.

Sunday New York Times announces a "commitment ceremony"

I am not a regular Sunday NY Times reader. And when I do read it, it's usually a handful of sections, not including "Sunday Styles."  But last Sunday I was on a cross country flight and spent more time than usual perusing the paper.  I am periodically curious about the number of same-sex wedding announcements, so late in the flight I turned to that section of the paper.

First I marveled, again, at the old-fashioned convention of the contents of these announcements, and the sheer class bias in them.  Every person a college graduate, with parents of various distinction. But I read on, including the three gay male couples whose announcements were, for better and/or for worse, indistinguishable from the others.

But then...a deviation so momentous I had to read and reread it to believe my eyes.  Emily Brouwer and Anna Le Mon, complete with smiling faces, "affirmed their partnership in a commitment ceremony ceremony" in San Francisco, in a service led by a friend.  Wow and double wow!  The other NYT conventions were complied with precisely.  College degrees. Jobs. Parents.  I don't know when "commitment ceremonies" began gracing the NY Times Sunday announcements, so this may be old news to some.  But to me it was actually a way I could see myself on this very page, something I have never imagined.

I have never wanted to take commitment out of marriage...only the law and the name.  A public affirmation of commitment is just the sort of statement I admire, a way or drawing together family and friends to celebrate love.

If anyone knows when the Times included the first of these, I'd love to know.

This Forbes column gets it right

On the tail of my blog post yesterday, this terrific column appears on forbes.com today, filled with approaches to child poverty that do not depend on marriage and highlighting what an outlier the United States is in its social and economic policies.

Why children have unequal chances

For going on two decades there has been a steady stream of articles blaming nonmarital birth for the inequality among children...and all other social problems.  But there seem to be even more recently.  Then comes a front page story in this week's Sunday New York Times, describing the lives of two sets of children whose moms work together.  Jessica has three children, one with Asperger syndrome, and no husband.  She earns $24,500 as an assistant director of a child care center.  Her boss, Chris, has two children and a husband.  Chris and her husband earn together three times what Jessica earns.  So of course their children have more enrichment activities.  And of course they have more available parental time.

From this, and the many cited researchers, the article concludes, as its subtitle put it, "Marriage, for Richer; Single Motherhood, for Poorer."  "Two Classes," reads the headline, "Divided by "I Do."  Of course the reader will draw the conclusion that marriage before children -- and staying married -- is the solution to the unequal chances children face.

I cannot agree, and there's another way to tell the story of Chris's and Jessica's children, some of which is buried in the piece itself.  Take one study the article reports.  Scott Winship studied 2400 young adults and found that 58% of those in the lowest third of income who as teenagers lived with two parents moved up on their income level, while 44% of those with only one parent did.  Also,  15% of those who started out in the top third income level fell to the bottom third, while 27% of teenagers without both parents did.

But Winship qualifies his own data, something the article does report.  In fact, he interprets his data "cautiously."  He warns that race, education, and parenting styles might separate the two groups.  And that the families of women tied by marriage to "troubled men" might be hurt by marriage.

There is no question that there is a correlation between marriage and the well being of children.  Lots of research shows that.  But that is a far cry from naming having children outside marriage the cause of the problem, and getting married before having children the solution.  There is also a well documented correlation between higher income and the well being of children.  If we start by naming poverty the problem, we create a different trajectory of changes.  But they are changes that implicate the social and economic policies responsible for income and wealth inequality.  Blaming marriage or the lack thereof is a distraction, and one that is welcome by those who benefit from the status quo.

The story of Chris and Jessica and their children could have been told in other ways.  And could have been told with a third family, a couple in a miserable marriage, with an uninvolved, unemployed, alcoholic, and/or violent father.  Believe me, then it wouldn't look like marriage was the solution.

As for the other ways of telling the story, consider the comment Tim Casey of Legal Momentum included when he sent a link to the article out to an anti-poverty listserve. "Note the lack of discussion," he wrote, "of the policies that in other wealthy countries ameliorate the economic insecurity that is so common for US single mother families -- free or subsidized child care, paid parental leave, an adequate welfare system, childrens' allowances, assured child support, etc."  The child poverty rates is much lower in other Western countries than in the US precisely because of such policies. Public responsibility for all children -- who are the future we all depend on -- is in my mind the mark of a civilized nation.  We are barbarians in that respect.  The New York Times should include that point of view the next time it writes about the unequal chances of children.  

Advocates of same-sex marriage, and the experts who support them, have done a good job of debunking the idea that children need to be raised by their married biological parents.  Their research and conclusions were nowhere in the NY Times article.  Gay rights advocates do not necessarily want to be connected to Jessica and her children.  That, in my mind, is a failure of vision. Marriage isn't the one answer to child inequality for children with straight or gay parents.

Where can a child have three parents?

Today's newspapers and websites are full of stories about the California bill that will allow a judge to find that a child has three parents. (Check out the New York Times for example).  Every story I read contains something that is misleading or plain wrong about the state of the law.  So I thought I would briefly try to set the record straight.  Mind you, I am not criticizing the journalists who wrote these pieces, as this area is complex and can be very hard to explain.  But I'm going to give it a try.

The first time I ever found a case assigning parental responsibilities and giving parental rights to more than two parents was in Louisiana in the 1980's.  Yes Louisiana.  There was nothing gay about it.  A married woman gave birth to a child and the biological father was not her husband.  The child had a relationship with both men and the court said there were two fathers. (If you are familiar with the US Supreme Court's ruling in Michael H. v. Gerald D., this might suprise you.  That case held that a state was not required to give parental status to a biological father of a child born to a woman married to a different man, and was certainly not required to say a child could have two fathers.  But it didn't prohibit a state from doing either of those things.)

More recently, and in the gay and lesbian context, here is what I can report.  California, Oregon, Washington, Massachusetts, and Alaska have allowed third-parent adoption, whereby neither biological parent relinquishes parental rights but the partner of one of those parents becomes a legal parent through adoption.  In fact, one of the first "second-parent" adoptions in the country, in Alaska in 1985, was actually a third-parent adoption.

The District of Columbia parentage statutes assign parentage to a person who consents to a woman's insemination.  A semen donor can also be a parent, but only if there is a written agreement to that effect.  So, when all three individuals document in writing that they are conceiving a child that all will parent, the child can have three parents.  (Read here for more about this law).  In addition, DC has a "de facto parent" statute that defines when a person who is not a legal parent can nonetheless obtain custody and visitation and have an obligation to pay child support on an equal basis with the legal parents.  If the child has two legal parents, this can create a third person with some of the rights of parenthood.

Delaware defines a "de facto parent" and makes that person a legal parent.  I have written about this here.  Therefore a child can have three parents in Delaware.

There are a few other cases I know of in the gay/lesbian context where the court has recognized the semen donor and the two moms in some configuration.  A Minnesota case gave visitation rights to both the nonbio mom and the semen donor.  A Pennsylvania case required both the (involved) semen donor and the non bio mom to pay child support.  This does not necessarily make the individuals full parents for all purposes.

Although creating something short of legal parentage, it's worth mentioning post-adoption contact agreements (PACA) which are permitted in a growing number of states -- maybe half at this point. They allow a parent to relinquish a child for adoption but retain legal enforceable visitation rights, assuming that visitation remains in the child's best interests.  This idea grew out of the child welfare context, where a child in state custody because of abuse or neglect might face indefinite foster care unless the rights of his/her parents were terminated.  Older children might not want to lose all contact with a parent, and a parent who might not be proven entirely unfit might not want to lose all contact with her child.  If contact can continue, all involved might agree to an adoption.  In that case the child has only two parents -- the adoptive ones, but the biological parent retains a legal connection through visitation.  It's not three parents, but it's some recognition of the reality of complex family life.  And I have written about how a law such as this can allow a lesbian couple and a known donor to structure their relationships so that he consents to a second parent adoption but retains legally enforceable visitation.  This kind of arrangement has appeal for those families planned around the idea that the child will have two mothers but the donor will have ongoing contact but not legal parentage.  I might add that this arrangement works when the child is conceived through sexual intercourse as well.  It simply requires the three individuals to agree that this is what they want.

Finally, to return to the California bill, the legislative proposal arose after a California appeals court ruled that a child could not have three parents.  I wrote about that case, In re M.C., extensively here.  The court could have found that the child in that case did not have three parents without pronouncing in such a sweeping way that a child could never have three parents.  Given the sweeping language, the bill is necessary to protect parent-child relationships when there really are more than two people who function as the child's parents.

Another court misapplies Troxel v Granville and so another nonbio mom loses in Texas

Last month (while I was on my blogging hiatus), the Texas Court of Appeals (Ninth District) ruled against Dana Ruppert's efforts to retain a relationship with the child born while she was living with the child's biological mother, Stephanie Wells.  The facts in the opinion are sparse, but the law is unmistakable.

The opinion reports that the couple began living together before the child, M.J., was born and that their relationship ended in April 2010 with the nonbio mom moving out.  (No indication when the child was born or his age).  The couple did divide care of M.J., and in May they agreed in writing that each would have certain periods of time with him.  The next month Wells stopped the visits, but she allowed them to resume in November 2010.  Between November 2010 and August 2011, the child lived with Ruppert about 50% of the time.  After Wells again stopped the contact, Ruppert filed a court action in November 2011 requesting sole custody and alleging that Wells was abusive towards the child.  The trial court held a hearing.  It did not find that Wells was unfit.  It awarded temporary primary custody to Wells but did give Ruppert weekends and 2012 spring break with M.J.  The appeals court summarized the testimony as showing that Ruppert "filled a role in co-parenting" M.J. when Wells allowed it.

The trial court allowed Ruppert's claim to proceed because it ruled that, as required by Texas law, Ruppert exercised "actual care" and "actual possession" of M.J. for at least six months, ending no more than 90 days  before Ruppert filed for custody.  But the appeals court said she did not have actual "control" of the child, also required, because Wells could change her mind at any time and because Wells made decisions about M.J.'s school.  Wells had given Ruppert written consent to make medical decisions for M.J., but the appeals court said this did not amount to "control" because she never actually had to make any such decisions.

Most disturbing as a legal matter, the court believed its interpretation of the Texas statute was required by the US Supreme Court's ruling in Troxel v. Granville.  I have written about courts' interpretations of Troxel in numerous posts.  Here is an example of how the Wells court gets it wrong.  "While the desirability of compelling Wells to allow Ruppert a right to visitation might be debatable, when viewed from the child's point of view, Troxel does not allow a court to second-guess a fit parent's decision."

Wrong.  Troxel involved grandparents who had never functioned as parents of the children at issue.  The Supreme Court said there were no "special factors" giving a trial court the power to decide that the children's best interests would be served by visiting with their grandparents.  The situation of a same-sex couple raising a child together from birth is just the sort of "special factor" that distinguishes it from Troxel. Fortunately, many courts have acknowledged this distinction.  But many miss the point entirely and treat Troxel as a decision that draws a bright line around a biological or adoptive parent and allows no court challenge to her custody or decision about visitation unless she is unfit.  That's what theNinth District Texas Court of Appeals has done, and the children raised by same-sex couples in the Beaumont, Texas area are the worse off for it.