In my circle of LGBT family lawyers, we talk about LBBs, lesbians behaving badly. This is customarily a shorthand reference to a biological (or legal adoptive) mother who deprives her child of a relationship with her ex-partner, who the child views as also being a parent. Well, I always say that whatever happens in our families happens in straight families, only more often (since there are more of them). And a case from Illinois in the last couple of weeks reminds me how true this is.
The family in the case, In re Scarlett Z-D, consists of Jim and Maria and the daughter that Maria adopted as a 3 year old in Slovakia in 2003 while visiting family there. Jim did not adopt with her because the couple was not married, but he went to Slovakia several times, and was involved in and paid for the process, which took a year. In 2004, Maria and Scarlett returned to the US and lived as a family with Jim. For four years, Scarlett called Jim "daddy" and Maria held him out as Scarlett's father. He did not adopt her, however, and in fact Maria never did a US adoption of her. (This is not required but parents of international adoptees often do it). It also appears from the initials that comprise Scarlett's last name in the caption of the case that Maria gave the child a last name that hyphenated her name and Jim's name.
When the couple's relationship ended, you guessed it, Maria cut Jim out of Scarlett's life. Jim filed both a parentage action and a request for custody and visitation rights. There was a trial that established the close bond between Jim and Scarlett and the harmful consequences of removing Jim from Scarlett's life. The trial judge was completely sympathetic to Jim's argument but felt bound by the law to dismiss his case. Jim appealed, and the appeals court also said that under Illinois he was not a parent and lacked standing to even bring an action concerning Scarlett's custody.
Illinois is one of the states whose appellate courts have, in my opinion, overread Troxel v. Granville. By that I mean that the courts have attributed more rights to a legal parent than I believe Troxel requires when it comes to the question of court-ordered visitation by someone who is not a legal parent but has functioned as one. Plenty of other states have found that a person who has fully functioned as a parent to a child, with the approval of the child's legal parent, can get visitation with that child, or even custody, without running afoul of Troxel.
The Scarlett Z-D court repeated pronouncements from other Illinois cases about Troxel but also held the neither Illinois statutory law nor Illinois common law allow a person in Jim's position to petition for custody or visitation. The court did indicate that the legislature could fix this problem through statutory reform.
And that's where the matter stands in Illinois. Lesbian legally unrecognized moms have faced this problem there. And in a particularly horrendous case an FTM transgender father lost all contact with the children his wife gave birth to as a result of jointly planned assisted conception because the court ruled he was legally female, therefore the marriage was invalid, therefore he was not the children's father.
The Illinois legislature needs to act to end such tragic decisions that rob children of parental love and support in this way.