Trial court gives decisive win to nonbio mom in long-running Ohio dispute

In a 41-page opinion, an Ohio Magistrate has awarded shared legal and physical custody of 8-year-old Maddie Smith to her biological mother, Julie Smith (Smith) and her nonbiological mother, Julie Rowell (Rowell).  This is the latest stage of the long-running Rowell v. Smith dispute I have written about before.  The case has been going on since October 2008, when Rowell and Smith separated and Smith denied Rowell all access to their daughter.

Magistrate Kathleen Knisely devoted most of the 41 pages to factual findings after extensive testimony.  She noted that almost all the facts were disputed.  Smith claimed that Rowell was not involved in planning for the child and had no parental responsibility for her and that she and Rowell were not even life partners.  Rowell presented them as a couple that was equally involved in planning for and raising the child.  The magistrate found that "Smith's testimony, and that of her supporting witnesses, are not credible or supported by any of the ascertainable objective facts and witnesses."  Smith's witnesses for the most part appeared uninformed or misinformed about Rowell's relationship with Maddie.  For example, "each and every one" was surprised to learn that Smith had filled out forms listing Rowell as a parent or co-parent and listing Rowell's parents as grandparents.

Rowell's lawyers, Lee Ann Massucci and Carol Fey, presented overwhelming, detailed evidence about Rowell's involvement in planning for a child, in the pre-natal care and birth, and in making the decisions about Maddie's care for the first five years of her life.  A school administrator testified that the couple presented as equal parents and that the school dealt with them in that way.  Photographs, videos, and such things as mother's day cards and gifts all supported Rowell's version of their family.

The couple had no written agreement nor any wills or other legal documents.  Smith said she never intended to share parental rights with Rowell, never considered her part of her family.  Magistrate Knisely found that "Smith's actions belie her adamant position" and that the failure of both women to prepare important documents was something many individuals did.

The magistrate concluded that Smith "contractually relinquished shared custody of Maddie to Rowell" and that she "acceded to and actively fostered the formation, establishment and growth of a parental relationship between Rowell and Maddie."  Rowell, the magistrate found, "assumed the obligations of parenthood by taking signifcant, equal, responsibility for Maddie's care, education and development as well as contributing financially to Maddie's support without any expectation of financial compensation...Rowell has acted in this parental role for an extended period of time and has a fully developed, bonded parental relationship with Maddie."

The evidence showed that Smith repeatedly violated both the letter and the spirit of temporary visitation orders.  For example, when Rowell was to have Maddie after school at 5 pm, Smith informed the school not to allow Rowell inside the building and arrived at the school herself to walk Maddie out the door, where the child would run to Rowell and leap into her arms.  Smith had twice been found in contempt of court and given three day suspended jail sentences for her noncompliance with visitation orders.  Smith argued that Maddie was afraid of Rowell, but the magistrate found no evidence to support that and furthermore found that it was Smith's actions that caused anxiety for Maddie.

When the magistrate noted that Smith was unlikely to comply with court orders I actually expected her to switch physical custody to Rowell.  She didn't.  She awarded full shared physical custody, on a schedule for each of two full days every week plus three weekend days every other weekend.  Although the couple has shared legal custody, the court gave Smith the right to make final decisions about health care, religion, education, and extracurricular activities.  The order requires consultation with Rowell, something that seems more aspirational than realistic given the history and the magistrate's own findings.

Here are some of my own thoughts about this case.  Rowell is lucky that Maddie continued to feel connected to her and showed happiness (captured on video) at being with her throughout most of the last three years.  When a bio mom succeeds in alienating a child from a nonbio mom, a trial court can feel justified in limiting or even terminating contact.  Given Smith's hostility, I am very skeptical about whether joint physical custody will work.  In fact the research on joint custody after heterosexual divorce shows it is never a good choice in high conflict cases, and Smith turned this into a high confict case.  I know that Maddie has lived with Smith for the three years since the separation, so disrupting that should not be done lightly.  But I can't help but wonder what the court would have done had this been an equally contentious dispute between a formerly married heterosexual couple.  I think it more likely that custody would be switched to Rowell, who could be counted on to allow contact between Maddie and Smith.

Don't get me wrong.  This case counts as a victory for a nonbio mom.  But for all the magistrate's findings about Smith's interference with Maddie's relationship with Rowell, she ultimately gave Smith greater parental authority.

Lurking in the case appears to be a possible move by Smith to be with her new partner, who relocated from Ohio to Boston.  (Smith began this new relationship while she was still living with Rowell).  The order requires either party to notify the court if she intends to move.  This may then lead to a court hearing on whether to modify the time schedule.  Obviously, a move will be the end of shared physical custody.  Perhaps Smith will be concerned about the possibility of switching physical custody to Rowell and will stay in Ohio.  But the fact that the magistrate already gave her greater legal authority may instead embolden her to push the envelope by relocating.  At least we can be confident that Massachusetts will recognize the status granted Rowell by the Ohio court.

Under Ohio law, a husband who consents to his wife's insemination with donor semen is the legal father of the child born of the insemination, when the insemination takes place under medical supervision.  Ohio law is fairly typical of older "artificial insemination" statutes.  Under the newer statutes in DC, New Mexico, and Washington, parentage extends without regard to the gender or marital status of the birth mother's consenting partner.  Rowell and Smith went to the doctor's office together, and Rowell pressed the syringe plunger for the insemination.  Had a gender and marital status-neutral law been in effect, the couple would have been presented with a consent form, and they would have signed it.  That by itself should settle the question of parentage, with no need for the many years of litigation this case represents.

Meanwhile, this opinion is almost certainly not the last word.  Ohio has two levels of appeals courts, and Smith seems likely to keep fighting in spite of the unassailable factual findings of the magistrate.

Another court once again dismisses concerns about children of same-sex couples

Another judge has ruled DOMA unconstitutional.  Last week, US District Court Judge Jeffrey White found in Golinski v. OPM, that the federal government's refusal to extend spousal health care benefits to the same-sex spouse of federal employee Karen Golinski violates her right to Equal Protection.

As is necessary in any Equal Protection case, the court needed to determine what level of scrutiny to apply.  This court applied heightened scrutiny, finding that the denial of federal recognition to the marriage of same-sex couples needed to be at least substantially related to an important governmental objective.  And as we have come to expect, the defenders of DOMA (not the Obama administration which refuses to defend it, but a group of members of Congress) always argue something about protecting the well-being of children.  Well once again child development expert Michael Lamb stepped up to defend the equal ability of gay men and lesbians to raise children.  In my favorite line of the opinion, the court noted that "the evidence presented by Professor Lamb demonstrates that parents' genders are irrelevant to children's developmental outcomes."

I love this sentence, and not only on behalf of same-sex couples raising children.  The right wing "marriage movement" has been asserting for the better part of the last two decades that the decline of life-long heterosexual marriage endangers children precisely  because they need to be raised by their married, biological, mother and father.  Dr. Lamb's conclusion from the research shows that argument for what it is -- an empty pronouncement that distracts attention from meeting the real needs of children. "There is...no empirical support for the notion that the presence of both male and female role models in the home promotes children's adjustment or well-being," Dr. Lamb continued.

DOMA defenders unsuccesfully attacked the methodological validity of the research in this area.  They submitted three articles -- none from peer-reviewed journals -- criticizing the studies Dr. Lamb relied upon.  This flimsy response to the more than 50 peer-reviewed articles about research on children with lesbian or gay parents that Dr. Lamb relied upon was completely dismissed by the court.

Of course the court also pointed out that denial of federal benefits to same-sex spouses does nothing to change their status as parents under state law.  It may just hurt children by denying their parents the privileges federal law bestows on married couples.  This of course begs the question of why children's economic security should depend on whether their parents marry.  But readers of this blog know full well that same-sex marriage litigation never questions the validity of granting benefits to married couples -- and their children --  that are denied to other family forms.  No point expecting an opinion like Golinski to comment on that.

The court also went on to say that DOMA fails even rational basis review.  Denial the federal benefits of marriage to same-sex couples is not rationally related to the well-being of children.  It does not change the recognition of gay people as parents; all is does is deny a couple federal benefits.  To the argument made by "some people" that biological parents should be the preferred childrearers, the court points out that the law right now does not recognize a distinction among parents based on whether they are biologically related to their child.  The court does not elaborate, but presumably the reference is to the full range of parents who lack that biological connection, including adoptive parents and parents who conceive using assisted reproduction.  There are way more straight parents who fall into these categories than there will ever be gay parents.

Give to Breast Cancer Action, not Komen

The Komen controversy about Planned Parenthood was just the tip of the iceberg as far as I'm concerned, and I am thrilled to link to an op ed on the subject in today's Los Angeles Times by Peggy Orenstein.  I won't repeat what Orenstein eloquently describes.  But while she urges readers to give their breast cancer-related donations elsewhere, she does not name names, and that I will do.

Send your money to Breast Cancer Action.  Its "think before you pink" campaign long predates the recent attention to Komen.  What's more, they fit Orenstein's criteria of a worthy group: not shying away from objectively reviewing the science of screening; aggressively pushing for more investigation into the causes of cancer, including environmental causes; and refusing money from corporations whose policies or products are not good for women's health.

New York Times hosts online debate on why marriage

I'm always happy to see marriage itself questioned as the relationship entitled to special status under the law.  Kudos to the New York Times for opening its website to several questioning views on this subject.

Brilliant Ninth Circuit opinion strikes down Prop 8, but the serenade to marriage is unnecessary

In a 2-1 ruling, the Ninth Circuit in Perry v. Brown, has ruled that Prop 8 is an unconstitutional violation of federal equal protection law.  The opinion explicitly does not address whether any ban on same-sex marriage is unconstitutional.  Rather, it addresses only Prop 8 -- that is, only the elimination of the state constitutional right to marry announced by the California Supreme Court in In re Marriage Cases.  The court relies on the US Supreme Court precedent in Romer v. Evans that the bare desire to harm a particular group is not a legitimate state interest.

Let me say at the outset that the national gay rights legal groups deserve the credit for urging this approach to Prop 8.  The original litigation, as framed by the Olsen-Boies legal team, was a full-on challenge to the exclusion of same-sex couples from marriage.  The national litigation groups did not think the time was right for such an attack.  For example, GLAD initiated litigation almost three years ago challenging the constitutionality of the part of the Defense of Marriage Act that denies federal recognition to same-sex marriages.  GLAD intentionally did not challenge all marriage bans.  Although Olsen-Boies were not especially responsive to the wisdom of the experts in this area, they did ultimately see the value in at least including in their arguments a more Prop 8-focused challenge.  Numerous amici in the Ninth Circuit urged the court to rule on this more narrow ground.  Everyone assumes this case is headed for the US Supreme Court, where the vote of the author of the Romer opinion, Justice Kennedy, will be critical.  Although his vote is by no means assured, the legal reasoning of the Ninth Circuit stands the best shot at an affirmance.

The court identified the issue as whether the People of California had a legitimate reason for taking away the label "marriage" from the relationships of same-sex couples while leaving such couples with the "domestic partnership" designation.  And the critical backdrop of this issue is that same-sex couples do have access in California to the status of "domestic partnership" which grants all the legal consequences of marriage without the name.

The court found a close analogy to Romer, where the People of Colorado, through what was called Amendment 2, took away from lesbians and gay men the ability to be protected against discrimination under state and local laws; some Colorado cities had enacted those anti-discrimination measures, and Amendment 2 eliminated them.  Again reiterating the narrow reasoning in this case, the court noted that the Colorado cities were not constitutionally required to pass such anti-discrimination measures for the Supreme Court to reason that those protections could not be removed, from gay people only, without a legitimate state interest other than disapproval of gay people.  I particularly love that the Ninth Circuit also cited one of my favorite cases, US Dept. of Agriculture v. Moreno, which found unconstitutional Congress's removal from the food stamp program households of unrelated members, something the record showed stemmed solely from disapproval of hippie communes.  The Constitution did not require Congress to give food stamps to anyone.  But once it did, it could not remove that benefit only from certain groups without a legitimate reason for doing so.

So then all that was left was for the court to review the possible legitimate reasons.  The court rejected the argument that Prop 8 would increase the likelihood of children being raised by their married biological parents, since the parentage laws of California extend to gay men and lesbians and Prop 8 did not change that.  It also found implausible (at one point calling it lacking any "footing in reality") the argument that taking away the designation "marriage" from same-sex couples would cause heterosexuals to procreate more responsibly or would strengthen families headed by a man and a woman.

The court also rejected other arguments, including one that it would protect children from being taught in school that same-sex marriage is the same as "traditional" marriage. (For a terrific analysis of the campaign ads for Prop 8 about what children would learn in school, see this piece by Berkeley law professor Melissa Murray). The usual response to this from the pro-gay side is to say that allowing same-sex marriage has nothing to do with what is taught in school.  And the Ninth Circuit says that as well. But it says something more that actually addresses the substance of the concerns of the opponents of gay rights.  It's important enough to quote in full.

There is a limited sense in which the designation of 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach.  Schools teach about the world as it is; when the world changes, lessons change.  A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them.  But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particulat governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors.  The prospect of children learning about the laws of the State and society's assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy. (emphasis in original)

After disposing of other alleged reasons, the court concludes that the purpose of Prop 8 was disapproval of gay men and lesbian as a class and a desire to withhold the official designation and societal approval of the word "marriage."  "By withdrawing the availabilty of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."  Prop 8 does not change the legal consequences available to same-sex couples, which attach to domestic partnerships, but it "dramatically reduces the societal standing of gays and lesbians and diminishes their dignity."

The dissenting judge essentially applied the most deferential form of rational basis review available.  He concluded that animosity and moral disapproval could motivate Prop 8 as long as there was some other rational reason behind it.  He also placed on the challengers the burden of negating every conceivable rational basis for the law.  Ultimately, he concluded that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."  Those assumptions might be wrong, he wrote, but that they are arguable is sufficient.

All that's left is for me to offer a complaint I've made frequently in these posts.  The equality argument underlying this ruling is unassailable.  It is, of course, true that the voters of California knew there was a legal status called domestic partnership available to same-sex couples and knew that status would remain.  The majority is right on target when it asserts the the only reason to deny the name "marriage" to a same-sex relationship is to confer a status of lesser dignity and worth on lesbians and gay men.

But such an argument does not require glorifying marriage.  It will be oft-quoted that the majority opinion references Groucho Marx, Shakespeare, Lincoln, and Marilyn Monroe in conveying the meaning of marriage.  (See page 38 of the opinion through the above link).  "The designation of 'marriage,'" the court writes, "is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it."  Marriage finds its place in poetry, to be sure.  But commitment exists in so many relationships, often those that endure longer than marriages.  The more marriage is glorified, by marriage equality opponents and supporters alike, the less able we are to see those commitments all around us and to honor them and confer upon them appropriate legal consequences.  For that problem, today's ruling solves nothing.

Massachusetts Appeals Court confirms parentage of same-sex spouse...but marriage shouldn't be the dividing line between a child with two mothers and a child with one mother

In a ruling that could not possibly have come out otherwise, the Appeals Court of Massachusetts ruled last Thursday, in Della Corte v. Ramirez, that the consenting female spouse of a woman who bears a child through anonymous donor insemination is a parent of the child.  This case could not have been decided otherwise because Massachusetts has a statute that a husband who consents to his wife's insemination is a parent.  In a case I have roundly criticized, T.F. v.B.L., the Massachusetts Supreme Court ruled in 2004 that a woman who consented to her partner's insemination was not the child's parent and therefore could walk away with no obligation to support the child.  But the court specifically noted that it would have reached a different result had the couple been married.

Ramirez was "involved in the insemination process and was an integral part of the couple's decision to conceive."  The couple married about two months after conception.  The statute does not require marriage at the time of conception; it refers to a child "born" to a married woman.  Both women's names appear on the child's birth certificate, and when they separated they signed a separation agreement saying Ramirez was a parent and giving her joint legal custody and visitation rights.  Ramirez pays child support.  Della Corte brought an action to modify the joint custody order.  The judge rejected her argument that Ramirez was not a parent because she did not adopt the child, as well as her argument that there had been a substantial and material change in circumstances since the earlier order justifying a change in the custody arrangement.

I don't have any problem with this ruling, as far as it goes.  The problem I have -- and it's a strong one -- is that it solidifies the marital status discrimination of the statute itself.  Without the marriage, Ramirez is still a parent of the child that resulted from the couple's decision that Della Corte would bear a child through donor insemination.  In New Mexico, Washington, and the District of Columbia, a gender and marital-status neutral consent-to-insemination statute would make Ramirez a parent whether or not she and Della Corte married.  In Oregon, she would be a mother by operation of a court ruling that an identical "husband consents to wife's insemination" statute is unconstitutional unless it also applies to a same-sex consenting partner.  In California, Ramirez would be a parent because she received the child into her home and held the child out as her own.  In Delaware, she would qualify as a "de facto" parent under the state's Uniform Parentage Act and would thereby be a legal parent.  None of the mechanisms I've listed depend on whether the couple marries.

I won't jump up and down about parentage law in Massachusetts until there's a marital status-neutral consent-to-insemination statute.  The state that first brought us same-sex marriage should be ashamed to have a distinction between "legitimate" children born to married same-sex couples and "illegitimate" children, deprived of a second parent, if the couple is not married.

Williams Institute study analyzes characteristics of same-sex couples raising children

Williams Institute demographer Gary Gates begins his new article in National Council of Family Relations by indicating that the gay parents in the hilariously funny Modern Family (okay- the hilarious part is my editorializing, not Gary's analysis) are decidedly not the typical same-sex couple raising children.

The most important conclusion from Gates's review of census data and several other large scale surveys is that large numbers of children of same-sex couples almost certainly are the product of previous heterosexual relationships.  For example, 28% of those who were previously married have children in their home, while the figure is 16% for those who were never married.  When looking at who has a biological or step-child,  23.5% of those who were previously married are in that category;  for those who were never married the figure is 9.5%.  Conversely, couples who do not report a previous marriage are twice as likely as those who do to have an adopted child.

There is other, fascinating, evidence supporting the likelihood that most lesbians raising children have a child from a previous heterosexual relationship.  In the 2009 California Health Survey, which asks respondents to identify their sexual orientation (unlike census data, which can only report numbers of same-sex couples raising children, thus exclusing gay men any lesbians raising children without living with a partner ), 22.4% of heterosexual women reported having a child before age 20, while 37.9% of lesbian and bisexual women reported having a child before age 20.  (Does denial about one's sexual orientation lead to riskier behavior? less likelihood of using birth control?  The data doesn't give us the "why," only room to speculate...)

In this article, Gates repeats information he has provided elsewhere, for example that the greatest percentage of same-sex couples raising children is in the south.  Also, couples with less than a high school education are almost three times as likely to be raising children as couples with a graduate degree.  (This discrepancy does not exist for heterosexual couples).  Furthermore, African-Americans in same-sex couples are 2.4 times more likely than their White counterparts to be raising children.  On the other hand, looking at adopted children only, White same-sex couples are almost twice as likely to have an adopted child when compared with couples where at least one partner is not White, and the couples with adopted children are more likely to have completed higher education.

Nineteen percent of same-sex couples with children have an adopted child, almost double the percentage in 2000.  Yet the percentage of all same-sex couples raising children has decreased.  It looks like lesbians and gay men are less likely to have children in heterosexual relationships now -- hence the more recent decline, perhaps because they are coming out earlier -- and that for all the attention to the "gayby boom," the actual number of children deliberately born or adopted into gay or lesbian families cannot make up the shortfall.

Couples raising one partner's biological child from a prior relationship have legal concerns that can be different from those of couples raising children planned for by the couple together.  For example, if there is another biological parent in the picture at all, that parent would have to consent to a second-parent adoption (where that's possible -- which it isn't in many of the southern states with concentrations of such couples).  And we shouldn't forget that in some parts of the country a heterosexual parent or relative can still challenge a lesbian or gay parent for custody of a child, a circumstance that isn't going away any time soon.

Once again, Gary Gates's data collection and analysis makes a huge contribution to our community and gives us lots to think about.