Thursday, May 24, 2012

Winning marriage and losing domestic partnership benefits: check out this NY event

I'm in the middle of writing an article about a case from Westchester County, NY, in which a teacher, Kathe McBride, sued the school district for which she worked when it instituted domestic partner employee benefits for same-sex partners only.  She wanted benefits for the man she had lived with for over 30 years.  The Westchester County Human Rights Commission agreed that this amounted to discrimination on the basis of sexual orientation and marital status.  A New York appeals court disagreed, and before the highest court in New York could hear the case, the parties settled.

But here's the other part of that story.  Effective July 24, 2011, the day same-sex couples achieved the right to marry in New York, McBride's employer ended DP benefits entirely.  Now the 7000+ employees must marry or forego the ability to extend the economic and emotional security of adequate health care to their partners.

Once upon a time, back when domestic partner employee benefits started at the Village Voice in 1982, they were for gay and straight couples alike and demonstrated respect for the choice not to marry -- a choice that no one's health care should depend upon.  They were about family diversity. A decade later, some employers started covering same-sex partners only, reasoning that it was a gay rights issue because gay couples could not marry.  Those employers had no problem with requiring straight couples to marry.

On June 4, an event in New York will examine how far we've come...for better and for worse...from the days when domestic partnership benefits were about making marriage matter less.  The Ettelbrick Project for LGBTQ Family Recognition at the Stonewall Community Foundation is presenting a program, "The Day Domestic Partnership Dies: Rolling Back Family Reform."  Paula Ettlebrick spent her entire career supporting equality and justice, which means she always argued that marriage should not be gatekeeper to family recognition. Terry Boggis serves Paula's memory well with this special Pride month program.  I hope it gets a large audience and lots of press coverage.

Monday, May 21, 2012

What today's US Supreme Court ruling in Astrue v. Capato might mean for children of LGBT parents

In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines "child" for purposes of receiving survivor's benefits when a covered employee dies.  Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert.  The twins were conceived by IVF after Robert's death using semen he had frozen before this death specifically for that purpose.

Karen claimed the children were entitled to benefits because they inherently met the definition of "child" since they were the biological children of married parents.  The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits.  Under the law in Robert's domicile at the time of his death  -- Florida -- children conceived post-death do not inherit without a will, so the twins were not Robert's children for purposes of receiving benefits.

In Astrue v. Capato, the Supreme Court ruled in favor of the SSA.  Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels.  First, Karen's claim was that the children were so obviously Robert's children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition.  Why was this so obvious? Because, Karen argued, they were the biological children of married parents.  I took great pleasure in Justice Ginsburg's criticism of that argument.  Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should "eliminate the intestacy test only for biological children of married parents." (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between "children whose parents were married and children whose parents' liaisons were not blessed by clergy or the State."

I also like that the opinion is clear that neither marriage nor biology is necessary to be the "child" of a deceased worker for purposes of survivor's benefits.  The opinion specifically cites to statutes that say a semen donor is not a parent to illustrate that "a biological parent is not necessarily a child's parent under the law."  As for marriage, the opinion says that "marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child's parentage is uncertain.  An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain."  By explicitly separating the definitions of parent and child from both marriage and biology, the opinion creates space for definitions based on other criteria, including ones that recognize the parentage of children raised by same-sex couples.

The catch is that the SSA will look to the law of each state, and specifically to the state where the deceased worker was domiciled.  Within that state, the SSA will look to intestacy law.  So the patchwork of laws affecting gay and lesbian families will continue to produce dramatically different consequences across state lines.  Of course that's also what happens to other children -- including the twins who were the subject of the Capato case; the opinion cites the statutes of several states that do allow posthumously conceived children to inherit, but Florida -- where Robert was domiciled -- does not.

As for our children, we assume that an adoption decree from one state will get Full Faith and Credit in every state.  But will it mean that in every state that child can inherit from the nonbiological parent in the absence of a will?  Probably yes. Without an adoption, it will be much more of an uphill climb.  When parentage derives from a consent-to-insemination statute in a different state or from a couple's marriage/civil union/domestic partnership elsewhere, the SSA might find that the state would not consider the child to be the deceased's child for intestacy purposes.  In that case, bye bye Social Security survivor's benefits. BUT...this is the time for me to remind everyone that the 2008 amendments to the Uniform Probate Code Section 2-120(f) do grant a child the right to intestate succession from a person -- male or female, married or unmarried -- who consents to a woman's insemination with the intent to be a parent.  And there is an old doctrine of equitable adoption that allows a child to inherit even if there was no actual adoption.  There are some states whose laws are not friendly to same-sex couples and their children, but if those states have the 2008 UPC amendments or a robust doctrine of equitable adoption, a child there may still qualify for SSA benefits.

Also, I want to remind everyone that the SSA has already ruled (and this was in 2007, under the Bush administration) that a child born to a couple in a Vermont civil union is eligible for disability benefits from the nonbiological mother, and the Justice Department has determined that granting those benefits does not run afoul of the Defense of Marriage Act.  Here is the opinion letter.  And the reason is because the child was eligible to inherit by intestate succession in Vermont, where the disabled worker was domiciled.  Period.  But had the family moved elsewhere, it would have been that state's law that SSA would look to.

So that the bad news -- and the good news -- in today's opinion.

Friday, May 18, 2012

Maryland court's approval of same-sex marriages from elsewhere includes nod to adoption by same-sex couples

Port v Cowan, the decision of the Maryland Court of Appeals today (that's the state's highest court) that Maryland recognizes same-sex marriages validly performed elsewhere, is notable in a number of respects.  The case arose in the context of a divorce action, with the trial judge refusing to grant the divorce because Maryland does not allow same-sex marriage.  A Wyoming trial court judge did the same things a couple of years ago.  But when the Wyoming Supreme Court reversed, as I write about here, it did so only to extent of ruling that the couple could divorce in Wyoming, not that the state would recognize a marriage. The Maryland court, on the other hand, was clear that Maryland will recognize same-sex marriages from elsewhere.  Period.  In reasoning that recognizing such marriages is not "repugnant" to Maryland public policy, the court listed all the ways in which state law recognizes and protects gay men and lesbians.  Also, the state's ban on same-sex marriage -- upheld just a few years ago -- does not ban recognition of such marriages from elsewhere.  Although the legislature could write such a ban into Maryland law, that's not going to happen --- not from a legislature that just passed marriage equality!  In a cute quip, the court's opinion refers to Maryland as suffering from "multiple personality disorder" when it comes to treatment of same-sex couples.

Here's perhaps the most amazing part of this ruling -- it was unanimous! And written by the same (conservative) judge who five years ago wrote the majority opinion in Conaway v. Deane upholding the state's ban on same-sex marriage.  In other words, the same judge who wrote that the Maryland constitution does not require the state to marry same-sex couples has now ruled that recognizing such marriages from elsewhere is not repugnant to the state's public policy and therefore they are valid in Maryland under the doctrine of comity.

My favorite part of the opinion, however, is what it says about gay people raising children.  First it refers to its own decisions banning discrimination in custody/visitation disputes.  (I'm proud to say that I was appellate counsel on one of the cited cases, Boswell v. Boswell.)  Then there's a footnote that says the following:

Although the issue has not been addressed in a holding by the Court, Judge Raker, in her concurring/dissenting opinion in Conaway, expressed her view that Family Law Article § 5-3A-29 permits same-sex couples to adopt children.

Conaway is the case upholding the ban on same-sex marriage.  The code portion cited is that which says that any adult may petition to adopt a child.  No appeals court in Maryland has ruled on whether two same-sex partners can adopt a child together.  One argument for permitting it is the usual statutory construction rule that the singular means the plural.  Trial judges have been granting joint and second-parent adoptions for maybe 15 years, but without a definitive ruling from an appeals court  there was always the possibility that some appeals court, in some context, would say that the Maryland statute does not allow it.  There was absolutely no need for the court in this case to even mention same-sex couples adopting children.  So I take this mention by the judge who ruled against same-sex marriage of something written in the same-sex marriage opinion by a judge who wanted to rule in favor of same-sex marriage as a sign that he and his colleagues think adoption by same-sex couples is indeed permitted.  Yippee!!!!

Tuesday, May 15, 2012

Renowned psychologist Michael Lamb publishes definitive article on child adjustment

Cambridge University Professor Michael E. Lamb has impeccable credentials as one of the world's leading experts on child development.  Among other things, he was Chief of the Section on Social and Emotional Development of the National Institute of Child Health and Human Development for 17 years.  His list of publications is about 50 pages long (that is not a typo!  check it out here).  He is credited with, among other things, determining that fathers, as well as mothers, matter to child development.  It is no doubt that early finding of his that endeared him to the "father's rights" movement and the fatherhood movement that sought to pathologize women raising children without father involvement.

Perhaps because of the mischaracterization of his research, Dr. Lamb was drawn into the public conversation about the relationship of family structure to child outcome.  Turns out that his research supported the findings that when fathers are there, they matter; in other words that there is more to child adjustment than the mother-child bond.  What his research did not support was the assertion that optimal child adjustment demands that every child have a father in the home.

In 2004,  the ACLU, in a case litigated brilliantly by LGBT Rights Project attorney Leslie Cooper, called Dr. Lamb as a witness in a lawsuit in Arkansas state court successfully challenging the social services agency regulation against placing children with lesbian and gay foster parents.  The trial judge referred to Dr. Lamb as the "most outstanding" expert witness in the case (coming close to saying he was the most outstanding expert witness he had ever heard), who answered questions fully with no "animus or bias" to any parties.  He testified about what did (quality of relationships, available resources), and did not (gender or sexual orientation of parents), matter to the well-being of children. Since then, Michael Lamb has participated in other litigation, most notably the Perry case challenging the constitutionality of Prop 8.

Last month, Dr. Lamb published in the journal Applied Development Science a summary of many hundreds of studies over the last four decades elucidating the factors that contribute to child adjustment.  The article, Mothers, Fathers, Families, and Circumstances: Factors Affecting Children's Adjustment is available online here.  This means that Dr. Lamb's professional opinion is now widely available for anyone who needs support for the following propositions:

*Social scientists have reached consensus that the following factors matter most to healthy child development:  the quality of relationships with parents; the quality of relationships between the parents and other significant adults; and the availability of adequate economic, social, and physical resources.

*Family structure explains a "small (or even insignificant) portion" of differences in child outcomes.

*Children in one-parent families have greater adjustment problems than children in two-parent families, but the primary causes of this increased maladjustment are disturbed relationships with one or both parents, reduced resources when there is only one wage-earner and care-giver, and unstable living arrangments and conflict around parental separation.  "The mere fact that the majority of children raised in single-parent or divorced families are well-adjusted," writes Dr. Lamb, "undercuts the argument that children 'need' to be raised in traditional families."

*Mothers and fathers are important to their children "as parents";  "father absence" is not itself important to adjustment.  (emphases in original)

*There is no support for the notion that both male and female role models in the home enhance child adjustment.

*The same factors affect child adjustment whatever the sexual orientation of parents; children with same-sex parents suffer no developmental disadvantages when compared with children of different-sex parents.

*Arguments from "some politicians and advocacy groups, especially those who oppose divorce and same-sex parenthood" that children need to be raised by "biological" parents have no empirical support.

Dr. Lamb concludes that discrimination against individuals and families on the basis of sexual orientation, gender, and marital status -- which he refers to as "outmoded beliefs in the superiority of traditional families" -- are harmful to individuals, families, and children.

To me, this is what is most important about this article.  It places single-mother and same-sex couple families together and debunks the myths about both.  Too often, advocates for LGBT families (especially for same-sex marriage) distance themselves from single-mother families.  Those families, they say, are pathological, but not ours. I despise such arguments.  The Lamb article makes clear that circumstances often associated with single motherhood, such as exposure of the child to parental conflict and lack of resources, can lead to child maladjustment.  But it is not the structure of a family with children raised by a single mother that's the problem.

Time for Michael Lamb to get an "allies" award from some gay rights group....

Thursday, May 10, 2012

Marriage isn't the answer ... and I'm not the only one who thinks that

I'll never forget where I was when Nelson Mandela walked to freedom on February 11, 1990, after 27 years behind bars.  That was my idea of an historic event.  I cannot equate Obama's support for same-sex marriage to anything like that, which I suppose puts me in the minority of gay rights activists today. But I'm not alone.  This morning's Washington Post blog contains an excellent entry from Lauren Taylor (full disclosure:  she's my friend!) with many supportive comments.

Equality is an important value, but so is justice.  It's a lot simpler to be for equal access to marriage for same-sex couples than to craft law and policy that supports all the ways in which gay -- and straight -- people form families.  I raise these issues in my blog posts whenever they arise.  Sometimes it's actually harder to make these arguments after same-sex couples can marry, because so many people think that's the whole ball game.  Fortunately, Lauren Taylor isn't one of those people...

Wednesday, May 9, 2012

SONG reframes the North Carolina vote into a win

While much of the country is celebrating Barack Obama's support for marriage equality, North Carolinians who worked tirelessly to defeat an anti-gay initiative are recouping from yesterday's loss. The constitutional amendment passed in North Carolina is one of those "super-DOMAs." It doesn't just ban same-sex marriage, something the state had already done. It bans recognition of any "domestic legal union" other than marriage between one man and one woman.

Well, Southerners on New Ground (SONG) has produced a powerful video about winning something bigger than what the supporters of the initiative won -- solidarity, massive mobilization of allied North Carolinians, and a way forward with multi-racial support for queer liberation. Good for them! Watch it here.

Tuesday, May 8, 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.

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.

Friday, May 4, 2012

Ohio court finds bio mom cannot block nonbio mom's custody action by allowing her subsequent husband to adopt the child

After bio mom, J.L.G., and nobio mom, M.L.G., split up, J. married a man and the couple completed a stepparent adoption of M.E.G., the child born to J.  An Ohio judge held last week, in In re M.E.G., that the adoption did not divest the court of the ability to hear the nonbio mom's petition for custodial rights to the child.  The stepparent adoption took place after a nine day trial over a six week period in the fall of 2010, after which a Magistrate ruled that the bio mom had, through her actions, ceded part of her custodial rights to the nonbio mom.  The adoption was finalized in January 2011, and the next month the bio mom tried to use that as a basis to dismiss nonbio mom's custody action.

Ohio does not permit second parent adoption, but it does have a doctrine whereby a nonbio mom can retain some rights to the child after the couple splits up if the court finds the bio mom relinquished partial custody rights to her ex-partner.  In this case, the Magistrate found that she did, and the judge reviewing that ruling agreed.  The bio mom relied on last year's dreadful In re Mullen decision from the Ohio Supreme Court (which I wrote about here), claiming that the lack of a written co-custody agreement defeated her ex-partner's claim.  The judge cited language from that opinion, however, to the effect that, while such a writing would be the best way to safeguard each party's rights, a written agreement is not a requirement.

The court's opinion cites what by now is a familiar litany of co-parenting decisions.  The couple planned for and jointly paid for the donor insemination conception and birth of the child, and the nonbio mom fully participated in the pre-natal care and birth; the child's name derived from that of the nonbio mom, and the child called her "mommy;" the couple shared all parenting for more than five years and chose caregivers and school together; the couple held themselves out as a family; the nonbio mom was listed as a parent on school forms, even after the couple separated. The nonbio mom also changed her last name to that of the bio mom so that she and the child would have the same last name. The bio mom testfied that she never intended to relinquish her custodial rights, but the court found that the "overwhelming" evidence demonstrated otherwise.  The reviewing judge also agreed with the Magistrate's decision that the finding was in the child's best interests, and noted that the bio mom had already been found in contempt of court for her refusal to honor temporary court orders.

It remains a source of fury to me that I have to count this case in the "win" category because the bio mom did not succeed in completely removing the nonbio mom from their child's life.  But the court did make clear that the nonbio mom did not have the right to block bio mom's husband from adopting the child because she was not the child's parent.  Except she is her daughter's parent.  And she would be her legal parent in Washington, New Mexico, Oregon, and Washington DC based on her participation in the child's conception, and in California, Colorado and Delaware based on functioning as a parent, otherwise known as "holding the child out" as her child. I look at that list of states and it looks so short, and leaves so many parent-child relationships unprotected.