Wednesday, May 9, 2012

Bio mom in Massachusetts continues to press losing argument

As odd arguments go, this is very odd.  Miko Rose is trying to convince the Massachusetts Supreme Judicial Court that Amy Hunter, with whom she was registered domestic partners in California, is not the mother of their daughter because domestic partnership is unconstitutional.  Why is it unconstitutional?  Because the Massachusetts court ruled that same-sex couples must have access to marriage, and granting the rights under a different name -- civil union or domestic partnership -- would not be sufficient.  At oral argument today in Rose v. Hunter (which you can watch for yourself here), the Justices appeared to see right through that; one Justice noted that the constitutional problem came from not extending enough recognition to the relationship, so how could it be unconstitutional to recognize those rights that do fall under domestic partnership (which in California is all rights, including presumptive parentage)?

When I read Rose's brief I was incredulous that anyone could make this argument with a straight face, but Rose's lawyer did just that.  I predict it will attract exactly zero votes from this court.  Actually, I'll go farther and say that there is no way Hunter will lose this case.  A child born to registered DPs in California is presumptively the child of both partners.  While a number of factors might rebut the presumption (e.g., one woman had sex with a man and got pregnant and the other never treated the child as her child, or the couple was separated and the birth mother had partnered with another woman but did not dissolve the DP), no such factors exist in this case.  The couple planned for the child together, conception took place using donor semen, and the couple co-parented until Rose moved to Oregon with the 18-month-old child, obstensibly for a four-to-sex week medical rotation that it turned out was an actual move from which Rose never intended to return to Massachusetts.  Although the couple had broken up before the move, they had continued to co-parent.  At the time of Rose's move to Oregon, Hunter was pregnant with their second child, planned for and conceived while the couple was still together.

The issue of interstate recognition of parentage is huge, and we will see dozens of cases in the next few years. But the big problem arises when the couple, or one of them, moves to a state that does not recognize the dual parentage of two same-sex partners.  Here, Massachusetts is being asked to give "comity" (a fancy word for legal recognition that is not legally required but exists because as a matter of policy a state finds it appropriate) to parentage created under California law.  As a state that does recognize parentage deriving from a lesbian couple's Massachusetts marriage (Della Corte v. Ramirez solidified this in February 2012), there is every reason to believe that the court will extend comity to parentage created under the same-sex couple recognition laws of others states, whether those states provide for marriage, civil union, or domestic partnership.

That Hunter will win this case in Massachusetts in no way solves the big problem I have with Massachusetts law, which is that a couple must enter a formal legal relationship for the state to recognize the parentage of a birth mother's same-sex partner.  If they are not married, and the nonbio mom does not complete a second parent adoption, she can easily be cut out of the child's life, and absolved of financial responsibility, even if she planned for the child and functioned as a parent.  This is the phenomenon I call the "new illegitimacy" because it penalizes children based on their parents failure to marry -- something discredited for children of heterosexuals decades ago.

When I say that Hunter will win, I mean that the court will find her a mother.  There is another issue of course, which is the custody of the child.  The trial court awarded primary physical custody to Hunter, granting joint legal custody and substantial parenting time through visitation to Rose.  The trial court made extensive findings about Rose's attempts to keep the child from Hunter, and about her instability and her inability to meet the child's needs.  Rose claims the trial court did not adequately consider what it would mean to remove the child from the parent with whom she had always lived.  Appeals courts are normally reluctant to disturb trial court findings, but Rose argues that the custody ruling was based not on the child's best interests but on a desire to punish Rose for wrongfully withholding the child from Hunter.  Custody rulings are not supposed to be punitive, so this is at least a plausible argument, unlike the argument on parentage.

The bottom line for this child, however, is that the trial court custody award, which was not stayed on appeal, means the child has lived with Hunter for two years now.  If the appeals court takes issue with the trial court's reasoning, it will remand for a new custody determination, which will take these past two years into account.  The more usual posture for cases like this is that the nonbio mom loses at trial; even if she wins on appeal custody is unlikely to be disturbed because the child best interests at the time of a new hearing will be assessed, and those are likely to favor the status quo.

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