Monday, May 7, 2012

Colorado ruling on "holding out" lesbian mother exactly what I predicted

The case of Wendy Alfredsen and her ex-partner's refusal to allow her access to her daughter made national news last week.  But I'd like to point out that the result was a foregone conclusion.  Not only did a nonbiological father win in a previous case, which I wrote about here, but a nonbio mom partnered with the biological father was successful in December, which I wrote about here.  These results are possible because Colorado presumes parentage for a person who lives with a children and holds the child out as his own, and because Colorado applies its paternity principles to determinations of maternity.  Four other states have these provisions.  There is no way for a court to distinguish a family of two mothers from these cases.

I imagine that some of the media appeal of this case was the use of the term "paternity" to describe this mother's action. But Colorado law allows for "maternity" determinations and says to apply paternity principles to those, so really it only had to be a maternity action.

Finally, on the facts of this case specifically, a critical fact is that the couple could not both become adoptive parents in Colorado in 2006. But now Colorado has a statute that allows second parent adoption, so now any couple with a child adopted by one of them should go back and do a second parent adoption.  And don't forget that there is an adoption tax credit which will allow the couple to recoup virtually all of the costs of completing the second parent adoption.

1 comment:

Katy Anders said...

I have read a couple articles on this story, and I don't understand the angle at all. It might be a jurisdictional bias on my part, however.

In Texas, where I live, anybody really has standing to go into court regarding child custody if the child has resided with them and been arguably under their care and control for 6 months in the past 2 years.

Is this not the case in most jurisdictions?

Because it it were, it seems that the "paternity" angle would be almost... secondary. I've seen people who were technically babysitters be able to get in to apply for conservatorship here because they could jump the standing hurdle.