Monday, January 23, 2012

California appeals court clarifies presumed parent status; it's about the parent-child relationship, not the relationship between the adults

California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own.  Last week came the latest addition to that body of law.  California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other.  In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.

This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P.  J.V. was pregnant when she became good friends with E.C.  E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V.  J.V. and the child moved in with E.C. when the child was three months old.  They began a sexual relationship after they were living together, something they did not tell their families until a year later.  Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child.  After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.

At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent.  J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more.  The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes.  The court said that "[J.V.] never intended [E.C.] to be another parent.  She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."

On appeal, the court held that the trial judge had applied the wrong legal standard to the facts.  Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V.  Whether the two women  had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant.  Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so.  It's the conduct after conception and birth that matters, ruled the court.  (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)

There was much evidence of E.C.'s parental relationship with the child.  As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said:  "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."

Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard.  If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.

The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support.  The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.

I'm struck by a number of things in this case.  I can't give my complete support to a policy whose goal is find two parents for a child.  To me, it comes from the same point of view that in other contexts vilifies single parents.  It also suggests that two is some magic number, even when there are more than two.  Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.

After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out.  At that point it's understandable that J.V. regreted some of her decisions.  But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism.  J.V. shouldn't be allowed to rewrite her daughter's life.

Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California.  It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents.  I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.

Tuesday, January 17, 2012

Let's tell all children that their family structure is equal to all others

The Tuesday New York Times article on pending same-sex marriage legislation in Washington state highlights the politicians, including Governor Christine Gregoire, who have switched their positions and now support the bill that would authorize same-sex marriage there.  So far so good.

The problem lies in how the Governor explained her support. “Let’s tell the children of our same-sex couples," said the Governor in her State of the State address, "that their parents’ relationship is equal to all others in the state.”  In a similar vein, State Senator Rosemary McAuliffe, a recent pro-same-sex marriage convert, said this: “I met the families, I met the children of those families, and I had the realization that it is our responsibility to protect all of our citizens against discrimination.”        

Now I understand the argument that denying access to marriage to same-sex couples sends a message that our relationships are not as valuable as those of different-sex couples.  And I certainly oppose discrimination.  But that includes discrimination against the families of children whose parents don't marry -- gay or straight.  I want the large percentage of children born to unmarried couples to feel that their family structure is equal to that of their classmates with married parents.  And what about the children raised by grandparents or other relatives (including those raised by gay or lesbian grandparents or other relatives)? or by single adoptive parents (plenty of gay and lesbian folks doing that as well)?

If we're talking about validating and affirming the equal value of all families, let's really do that.

Thursday, January 12, 2012

Iowa birth certificate case limited to children of unknown donor insemination

Congratulations to Lambda Legal for its initial success in Gartner v. Newton, the case challenging Iowa's refusal to list Melissa Gartner, wife of Heather Martin Gartner, as a parent on the birth certificate for Mackenzie Gartner, who was born to Heather after she and Melissa married.  The state can appeal the ruling if it chooses.

The state's position was that the statute requiring the listing of a husband as the father of a child born to his wife should continue to be read in a gender-specific manner.  The state argued that at least 90% of the time this rule produces a birth certificate with the names of the child's two biological parents.  Applying such a rule to a same-sex couple, the state argued, would produce a biologically accurate birth certificate 0% of the time.

The trial court ruled that the purpose of the birth certificate is not the creation of a biologically accurate record.  I certainly agree with that. In fact, what I like best about this opinion is that it says the presumption that the spouse is the other parent of the child is based on protecting the "integrity of the family" regardless of biological connection.

But there are some troubling aspects to the ruling as well.  The court notes that the Varnum opinion (establishing the right of same-sex couples to marry) cited one of the benefits of marriage as the legitimacy of children.  Refusing to put Melissa's name on the birth certificate, the court said, frustrated recognition of the child's legitimacy.  The court also relied on a 1945 Attorney General's opinion that a married woman's husband must be on the birth certificate even if he was away at war, the mother had an extra-marital affair, and she and the biological father wanted that man's name on the birth certificate.  But the denomination of any children as "legitimate" inherently conveys that some children are "illegitimate," and that is unacceptable.  Consider this language that the court cites from a 1933 case:  "The presumption of paternity 'is founded on decency, morality, and public policy.  The child is...safeguarded against future humiliation and shame..."  This language makes me cringe; it recalls a time when a nonmarital birth carried life-long stigma for the mother and the child.  There is nothing to be happy about when such thinking creeps into reasoning about our families.

And here is the kicker, something that news coverage of the case decision omitted.  The ruling is limited to births where conception has occurred through anonymous donor insemination.  The court says that explicitly.  It won't help couples who conceive with a known donor or where conception occurs through sexual intercourse.  Implicitly, the ruling credits Iowa's argument that the state's asserted interest in identifying the biological father could prevail in those forms of conception.

This highlights how little was really at stake in this case.  A name on a birth certificate does not prove parentage.  It is certainly evidence of parentage, and if no court dispute arises Melissa should be able to use the birth certificate with her name on it to show she is Mackenzie's mother.  But this court was unwilling to give even a birth certificate to a lesbian spouse if there might be a man who could assert rights based on biology.

What Iowa needs is a parentage statute that would protect all lesbian couples, without regard to method of conception and without digging into the despicable ideology of "legitimacy" and "illegitimacy" that we are all well rid of.