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.

Mignon Moore's book the subject of session at Law and Society Association annual meeting

I'm back to the world of the blogosphere from a brief hiatus, with lots to report and comment on. First up:

At this year's annual meeting of the Law and Society Association (in Honolulu), I chaired an "author meets reader" session on Mignon Moore's 2011 book, Invisible Families: Gay Identities, Relationships, and Motherhood Among Black Women. I had a distinguished set of "readers" who commented on Mignon's book.  The group consisted of two law professors, Kim Pearson and Catherine Smith; a women's studies professor, Cathy Connolly; an NCLR staff attorney, Cathy Sakimura; and a state supreme court justice, Sabrina McKenna of the Hawaii Supreme Court.

You may have read much research on lesbian mothers and lesbian families that includes the disclaimer about the low number of women of color as subjects.  The title of Mignon Moore's book, Invisible Families, speaks volume about those disclaimers.  With this book, black lesbians and their families are no longer invisible.  Not that one book can appropriately balance out glaring research deficits.  It's just that now we have something to look to.  This book frequently notes different findings about her subjects than those found in research on white lesbians, especially those with feminist leanings/awareness.  (Perhaps the biggest contrast to this book is another that was the subject of a Law and Society session: Transforming Law's Family: The Legal Recognition of Planned Lesbian Motherhood, by University of British Columbia law professor Fiona Kelly.  Most of the families in that book are both white and feminist.  I was honored to be a "reader" at that LSA "author meets reader" session.)

Invisible Families is receiving well-deserved acclaim.  It is the recipient of this year's American Sociological Association Sex and Gender Section's 2012 Distinguished Book Award, which will be presented in August at the ASA's annual meeting in Denver.  In honoring the book, the selection committee wrote:

While Moore’s title reflects the near invisibility of Black lesbian families in the literature on gay and lesbian families, she demonstrates that Black lesbian mothers have in fact become increasingly visible, living openly and crafting and displaying non-normative gender presentations of self in a range of public settings. Moore’s landmark text now makes these women’s lives visible in sociology.

We appreciated her strong analysis of the intersections of gender with race, sexuality and class within a single group. As one committee member put it, “Invisible Families offers a rare piece of in-depth empirical intersectional work that analyzes the complex and nuanced intersections of multiple identities, while still making a clear contribution to sex/gender scholarship.” Moore’s contributions to gender scholarship include her close attention to how women come into “the life,” and how these trajectories impact family formation; how gender displays and the “politics of respectability” operate at various points along these paths; and her analysis of the division of labor and power and gendered notions of mothering within Black lesbian families.

The LSA session on Mignon's book was packed.  I'm most appreciative of the readers for their thoughtful comments, and to the many audience members who participated in the discussion.  This book is a must-read for anyone trying to have a complete understanding of who lesbian mothers are.