Thursday, August 30, 2012

Stop blaming single mothers

 I wish more LGBT groups would stand up for single mothers of all sexual orientations.  Instead I want to cry - and scream - every time anyone argues for same-sex marriage by aligning with the rhetoric that blames single mothers (and therefore not same-sex couples) for our social problems.  So I am grateful to Legal Momentum (formerly NOW Legal Defense and Education Fund -- don't get me started on these types of name changes....) for consistently demanding that we look at wealth inequality, sex discrimination, lack of state and employer support for caregiving, etc as the causes of the disadvantages faced by children living in poverty, including those with single mothers. (I recently discussed this here).

Well Legal Momentum has just published a simple fact sheet on child poverty and births outside marriage.  Here it is.  By looking at the statistics from other countries, it is possible to see that births outside marriage does not cause children to be poor. The level of child poverty in the US is an outrage and a tragedy.  Other countries do much better, even with nonmarital births as high or close to as high as ours.

I think many gay rights supporters would be surprised to see how often the arguments against same-sex marriage turn out to be about single mothers.  For example, the argument by supporters of Prop 8, in their petition to the US Supreme Court to reverse the 9th Circuit's opinion in Perry finding Prop. 8 unconstitutional, goes like this:  Allowing same-sex marriage will contribute to the belief that marriage is about valuing adult personal relationships.  It isn't.  Marriage is about channeling the sexual behavior that produces children, often unintentionally, into the family structure that will give the resulting children two parents who live together and raise the children together.  The problem with decoupling marriage from providing for the consequences of heterosexual sexual intercourse, namely children, is that...more children will be raised by single mothers.  And that is the real problem.  So they claim.

Advocates for LGBT families usually respond to this by saying how silly it is to argue that letting same-sex couples marry will produce more children of heterosexuals raised by single mothers.  But, really, we need to be careful not to jump on the bandwagon of even hinting that children shouldn't be raised by single mothers.

Friday, August 17, 2012

Kenneth Miller conviction important, but civil suit for money damages might matter even more

I don't know if Janet Jenkins will see her daughter again.  And I think it possible that, even if she does, Lisa Miller's brainwashing of Isabella might make a meaningful reunion impossible, at least without significant counseling intervention.  So Lisa Miller might actually get what she wants -- keeping Isabella away from her other parent in violation of several court orders.

That's where this week's conviction of Kenneth Miller and civil suit against numerous individuals and groups comes in.  Miller might go down a hero in some circles, and if he is incarcerated that might make him a martyr of sorts.  But money talks, and if the civil suit costs the defendants a lot of money that might actually deter future efforts to obstruct custody and visitation orders.

This tactic reminds me of the Southern Poverty Law Center's use of civil law suits to shut down several hate groups as a result of large damages awards.  Such cases take a long time from filing to resolution.   Civil litigation in federal court is a slow and often cumbersome process.  But ultimately a case comes to trial, and a large verdict in favor of Janet Jenkins (and Isabella, also a named plaintiff) will make others think more than twice before breaking numerous laws to further the belief that a child should be shielded from her roots as a product of a lesbian relationship and from a parent who raised and cared for her until unwarranted obstruction.  And if it uncovers evidence that Miller's lawyers at Liberty University School of Law participated in the kidnapping efforts, I hope it cripples that school's efforts to teach students to obey a narrow and rigid (and of course anti-gay) idea of God's law over the civil laws that bind all of us.

Monday, August 13, 2012

Criminal trial in connection with Miller-Jenkins custody case underway in Vermont

The trial of a man accused of helping Lisa Miller transport her daughter to Nicaragua began last week and continues over the next couple of days.  This is the latest installment in the legal cases arising from Lisa Miller's refusal to allow her daughter's other mother, Janet Jenkins, to exercise her court-ordered visitation rights.  I've chronicled the numerous court rulings in this case over the last three years.

Kenneth Miller (no relation) is on trial for aiding in international kidnapping.  The New York Times summarized the first week's testimony here yesterday, and the Burlington Free Press publishes daily reports on the trial's progress.  The defendant is expected to argue that he thought Lisa had the right to leave the country with Isabella and didn't know it was unlawful to assist her.  So far, the prosecutor's evidence of his surreptitous behavior suggests that is a total lie.  It will be up to the jury to determine whether Kenneth Miller had the requisite intent to help Lisa Miller evade court orders.

One of the most interesting questions about this matter is whether Lisa's lawyers, Liberty Counsel, played a role in her leaving the country.  That would be a violation of legal ethics and could (should) result in sanctions.  Evidence introduced last week shows that one of the men helping Lisa (but not charged with a crime...yet) did place phone calls both to Liberty University Law School in Virginia and to Liberty Counsel's Orlando office.  Law school Dean Mathew Staver has repeatedly denied that he or his co-counsel knew anything about Lisa's abduction of Isabella.  I have my doubts.  This very interesting blog post recounts that the "correct" answer to a Liberty Law School exam question about the facts of this case was that the lawyer should encourage "civil disobedience" of the court ordered visitation.  Of course the problem with that point of view is that civil disobedience is open, not hidden, and includes taking the consequences of one's actions.  If Lisa's lawyers admitted their role and faced the possible sanction of disbarment or suspension from the practice of law, as well as possible criminal trial, that would be civil disobedience.  It's not civil disobedience if they helped their client violate a court order and then lied about it.

Friday, August 10, 2012

Again a California Appeals Court recognizes that a child has two mothers

A California Appeals Court has once again recognized the parentage of a woman who raised a child with her partner for many years.  This continues a significant line of cases using the “holding out” provision in California parentage law.  This provision is not unique to California.  It actually comes from the original Uniform Parentage Act which created a presumption of paternity for a man who lived with a child and held the child out as his own.  Another provision of the UPA says that insofar as it is “practicable” the provisions concerning paternity should be applied to determinations of maternity.  In 2005, in the Elisa B. case, the California Supreme Court interpreted those two statutes together to find a presumption of parentage for a woman who planned for children together with her partner, received the children into her home, and held them out as her own.

This newest case, L.M. v. M.G., from the Fourth Appellate District, has a couple of distinctive factual circumstances.  M.G. adopted the child in a single parent adoption in 2001.  The child had come to live with M.G. and L.M. immediately upon his birth in November 2000.  L.M. testified that at the time she thought the only way she could adopt the child would be to register as domestic partners and then do a step-parent adoption.  It appears, totally reasonably, that the couple did not want to jeopardize their relationship with the child by trying to do an adoption together.  The court opinion points out that until November 1999, the California Department of Social Services routinely opposed joint adoption by an unmarried couple and that the California Supreme Court did not approve second parent adoption until 2003.

So, L.M. and M.G. raised the child in the same home until 2003.  After they separated, the child lived primarily with M.G. but spent several nights a month with L.M. and vacationed with her.  The child called L.M. “mom” or “mommy” and friends, coworkers, and parents at the child’s school knew that he was L.M.’s son.
And here is the next distinctive feature of this case: this arrangement went on for seven years with no court involvement.  It is very reasonable that a woman in L.M.’s position would not go to court for a determination of parentage and a visitation order when there is a visitation schedule in place and the child continues to have a relationship with both parents.  This court action began when M.G. told L.M. and she would be moving to Europe for 18 months with her new partner.  L.M. believed that was not in the child’s best interests, and she filed a parentage action requesting custody and visitation.
M.G. opposed the parentage petition.  The trial judge found that L.M. was a parent, but did allow M.G. to take the child to Europe for the 2010-2011 school year, subject to L.M.’s visitation rights.  The judge scheduled a follow-up hearing to determine whether the time would be extended the full 18 months.  M.G. appeals, although one wonders why, given that she was permitted to take her son to Europe.
M.G. agreed that L.M. met the criteria for presumptive parentage based on “holding out,” but she argued that the presumption was necessarily rebutted when the child had been adopted by a single parent.  She argued that the single parent adoption amounted to a determination that there was a “one slot parent family.”  Therefore, she argued, there was no “second slot” for another parent to occupy.  The appeals court rejected this argument.  The issue of whether the child could have only one parent never arose in the adoption proceedings; what happened in those proceedings was a determination that the child’s legal ties with his birth parents should be severed and that the adoption by M.G. was in his best interests.
M.G. argued that her parentage conflicted with L.M.’s parentage and that the court should have conducted a weighing process and determined that M.G.’s parentage trumped that of L.M.  But the appeals court said there was no conflict, since L.M. was not arguing that M.G. was not the child’s mother.  M.G. also argued unsuccessfully that the presumption should be rebutted because it amounted to a stepparent adoption without her consent.  But the court noted that a parentage action and an adoption were two different ways of establishing parental status and therefore that was no basis for rebutting the presumption.

This opinion is one more than demonstrates a strong preference for making sure a child has two parents rather than one.  Every time I read such an opinion I am troubled by the tone of disfavor that attaches to single parenthood.  There is no doubt that in this case this child had two parents.  But I am far more supportive of single parents, gay or straight, than even gay-friendly courts  and policy makers.