Tuesday, November 26, 2013

That was fast! Arkansas Supreme Court rules there is no mandatory ban in custody and visitation cases on the presence of a nonmarital partner

Seems like I just wrote about the case of Moix v. Moix.  Oh....I DID just write about it!  The Arkansas Supreme Court heard oral argument earlier this month, and two weeks later it ruled.  The trial judge was wrong, the court held, in finding that the state has a "blanket ban" on the presence of a romantic partner during visitation.  Instead, the primary consideration in every case is the best interests of the child.  Because it ruled for the father on this state family law ground, it declined to address the constitutional arguments made on the father's behalf.

The court did not provide much analysis other than the best interests test, but its reference to one particular case stands out.  In Taylor v. Taylor, the Arkansas Supreme Court reversed a trial judge who ruled against a mother who was living with a lesbian but was not in a romantic relationship with her.  The mother also testified that she was not herself a lesbian.  The trial judge feared that others would believe there was such a romantic relationship, but on appeal the court said that the outcome of the case could not turn on the false perceptions of others.  It would be easy to read the Taylor case as saying only that a mother can win as long as she isn't really a lesbian.  But the Moix opinion says more than that about Taylor.  It points out, accurately, the Taylor cited cases from other states for the proposition that "there must be concrete proof of likely harm to the children from the parent's living arrangement before a change in custody can be made...'Evidence-based factors must govern,' rather than stereotypical presumptions of future harm."  And those cases (although Moix does not explicitly say this) were cases in which the parent actually was gay or lesbian.  From this, I think it's fair to read Moix as requiring proof of harm before there can be a restriction on a parent's relationship with a same-sex partner.

Unfortunately for Mr. Moix and his son, the court remanded the case for further proceedings.  The trial judge made a factual finding that the partner posed no threat to the health, safety or welfare of the child and that there was nothing else that militated against the overnight visitation, but these findings weren't enough for the Supreme Court to simply remove the restriction.  Rather, the trial court is now to determine whether a restriction is in the child's best interests.  Let's hope the trial judge acts as quickly as the Supreme Court did.

Wednesday, November 13, 2013

Arkansas Supreme Court reconsiders ban on presence of unmarried partner during visitation

In 2011, the Arkansas Supreme Court issued a definitive blow to restrictions on unmarried couples, gay and straight, adopting children in Cole v. ArkansasThe opinion was a landmark articulation of a right to sexual intimacy under the Arkansas constitution.  In a blog post later that year, I pointed out the inconsistency between Cole and numerous other Arkansas rulings preventing the presence of a parent's unmarried partner during the exercise of overnight visitation rights.  A new case squarely raising this latter issue, Moix v. Moix, has reached the Arkansas Supreme Court, where it was argued last week by stellar ACLU attorney Leslie Cooper.  (To watch the video of the oral argument, click this link and scroll down to archived videos from November 7, 2013).

John and Libby Moix divorced in 2004 after John realized that he was gay.  They had three children, but only one is still a minor -- 12 year old Ryan.  John began living with his partner, Chad, and had standard visitation with his children, including overnights, although John and Chad did not share a bedroom when Ryan was present.  After a violent incident between John and Chad in 2005, John agreed to daytime-only visitation.  Although the paperwork was completed and signed, and a court order resulted, the overnight visitation never stopped.  The two older children went to live with their father and Chad in 2008, during their senior year of high school.  Chad has a 16 year old son with whom he has regular overnight visitation.  In what I consider to be an uncommon situation, Chad's ex-wife testified that she had spent much time with John and Chad, was supportive of their relationship, had no trouble with her son being around them, and thought Ryan should be able to have overnight visits with his father.

John is a pharmacist and has struggled with drug addiction.  He twice lost his pharmacy license, most recently after a February 2010 DWI, after which he entered long-term rehab.  He regained his lisence in September 2011 and resumed visitation with Ryan, but Libby stopped overnight visits in January 2012.  In this action, John sought an increase in visitation and the ability to have overnight visitation with Chad present.

Libby is a member of a fundamentalist church and married a minister in that church in 2011.  According to John, Libby has told Ryan that gay people are going to hell.  Libby testified that John's homosexuality was not the main reason she was restricting overnight visitation.  She expressed skepticism about his recovery and concerns over some of his parenting decisions.  She did testify, however, that she believed John's relationship was immoral and against God's intention and that she did not believe that Ryan was emotionally prepared to deal with having a gay father.

From the transcript of the trial, it is evident that the issue of Arkansas's blanket ban on the presence of an unmarried partner was the principle issue from the beginning.  The trial judge said he was required to follow the law and policy of the state, and John's attorney referred to the case as headed to the state supreme court for review of the issue.  The attorney also raised the question of the restriction's constitutionality.

The trial court found it in Ryan's best interest to have more time with his father and so increased the visitation.  He also made a finding that Chad posed "no threat to the health, safety or welfare of the minor child" and that no factors other than John and Chad's unmarried cohabiting relationship militated against overnight visitation.  The court referred to the policy against such overnight visitation as "mandatory" and said the court was required to follow it, so the order requires that Chad not be present during any overnight visitation.  In a simple sentence with no analysis or citation to authority, the court stated that the mandatory policy survived constitutional scrutiny.

In 2010, a Tennessee appeals court ruled, for the second time, that there should no longer be an automatic restriction on the presence of a "paramour" while exercising custody or visitation.  I cannot imagine how the Arkansas Supreme Court can uphold such a "mandatory" rule.  I don't think they need to reach the constitutional claim; all they need to say is what almost every other court says -- that each case should be decided on its individual facts based on the child's best interests.  Given the judge's findings, that should result in an automatic lifting of the restriction.  But it sounded like at least one judge would send it back to the trial court for a new best interests hearing, in other words remand it for further proceedings.  That would be a completely unnecessary waste of time and money for this father, but at least it would clear the path for future parents in Arkansas to enjoy normal, unrestricted custody and visitation rights.

Thursday, November 7, 2013

Indiana appeals court limits nonbio mom to visitation

I remember when the parentage of nonbio moms was so invisible to courts that the ability to obtain visitation rights after the end of the couple's relationship was considered a great victory.  The breakthrough case was In re H.S.-H.K. in Wisconsin in 1995.  The court set out a four-part test, and if the nonbio mom could prove each part and filed a court action soon after the bio mom denied her contact with the child, then she could get visitation rights.

Well, almost 20 years later, that result does not seem like much of a victory.  Is it better than the result in Debra H., leaving nonbio moms who are not married to the bio mom and don't complete second parent adoptions without any remedy at all?  Well, of course.  But increasingly, both statutes and court rulings confer parentage on the nonbio mom, giving her parental rights equal to that of the bio mom (e.g., California, New Mexico, Washington, Washington DC, Nevada).  And even without that, numerous states (including some notably "red" ones like North Carolina and Kentucky) allow the nonbio mom to obtain joint custody (or custody) when it is in the child's best interests.

Indiana looked to be one of such states from numerous appeals court rulings over the years.  But last week, in A.C. v. N.J., the Court of Appeals did a backtrack of sorts, reading a limit into prior cases and leaving the nonbio mom with the option of seeking only visitation.  The facts of the case were unremarkable and consistent with other typical scenarios (complete with donor insemination and the nonbio mom cutting the child's umbilical cord in the delivery room).  The couple lived together until the child was two and then the bio mom allowed regular visitation for another nine months.  When the bio mom terminated visitation, the nonbio mom filed for joint custody.

This ruling highlights why the proposed Model Third-Party Child Custody and Visitation Act, promulgated by the ABA Section on Family Law this past summer, is so off base.  The Model Act parties like it's 1995, to use a musical metaphor.  It basically instantiates the In re H.S.-H.K. standard and would limit nonbio moms to visitation.  The drafters may think they are doing a favor for the children of same-sex couples, but if so they are sadly out of step with the recent trends that recognize parentage or at least the right to joint custody for nonbio moms and dads in such families.  Had the language of the Model Act been proposed in 1996, right after the Wisconsin ruling, I would have jumped for joy.  Today it makes me cringe.  Although it would help families in states with terrible law (that's you New York and Maryland), it could easily slow the progress towards equal parenting rights which is spreading across the country.

The Indiana appeals court said it would await a definitive ruling from the state's Supreme Court before going farther than visitation rights. I don't know if this nonbio mom will seek review in that court, but when some parent finally does I hope that court can look at the family before it and see the obvious -- that the child has two parents.

Saturday, October 26, 2013

NY Times covers same-sex couples who don't want to marry

Sunday's New York Times article on same-sex couples who aren't marrying adds a dimension usually lost in all the news of marriage equality, especially because it includes -- indeed focuses on -- couples who really don't want to marry.  Especial hats off to historian John D'Emilio, who features in the article and who has been a long-time outspoken critic of marriage.  The theme that most dominates the article, however, is that these couples choose not to marry but are not unhappy that other same-sex couples have made a different choice.

The article really deemphasizes the legal consequences of the choice these couples are making and never asks whether those legal consequences are appropriate.  If two people own a home together, when the first one dies should the other have to pay taxes to retitle the home?  No.   It shouldn't matter if the two people are married.  What matters is that the survivor is remaining in her home and should get to do so without economic penalty.  In many places only a surviving spouse can do that.  The article does point out that some couples will pay higher income taxes if they marry.  And why should that be?  Many countries tax individual earners; it doesn't matter if they are married.  Not us.  We've got a tax scheme adopted to benefit single earner marriages, and we haven't changed it to deal more fairly with today's families.

I could go on.  I did in fact, in my book, Beyond (Straight and Gay) Marriage.  I agree that perhaps the biggest problem with the emphasis on same-sex marriage is that it invalidates the many other ways that people organize their lives to raise children and meet their needs for emotional support and economic security.  But the bright line the law makes between married couples and everyone else reinforces this point.

I also don't think the gay rights advocacy groups have sufficiently considered the needs of same-sex couples who don't marry, and there will be lots of them.  A Pew study from last spring showed that 30% of gay men and 33% of lesbians had not told their mother that they were gay; 47% of gay men and 55% of lesbians had not told their father.  About 1/5 of each group said they did not do so because the parent would not be accepting. So what does this mean for marriage?  Few people marry in secret, and it is the very public nature of the act of marrying that seems to matter so much to same-sex couples who want to marry.  My hypothesis is that people who are not out to the parents are going to be less likely to marry.  Also there is significant research about same-sex couples who live within their larger African-American communities.  Their lives are often an "open secret," not discussed with family members.  Marriage may well be too "in your face" for such couples.

Now no couple like those above is going to show up in a New York Times article about same-sex couples who don't marry.  By definition, they don't want to be public.  But they are at risk of falling off the agenda of the gay rights movement because the emphasis on marriage has turned the legal consequences of their relationships into problems that can -- and should -- be solved by marriage.

Wednesday, October 16, 2013

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.

Saturday, October 5, 2013

Three parents (or more) okay in California -- by adoption or otherwise

Over three years ago I described in this blog, In re M.C., a California appeals court ruling that a child could not have three parents.  The case mobilized the National Center for Lesbian Rights and other advocacy groups, and yesterday California Governor Jerry Brown signed a bill explicitly permitting more than two parents, by adoption or by operation of California parentage laws.  No other state has such statutes, although lawyers do report some state trial courts that allow third parent adoption, and there are a tiny number of appeals court cases that have allocated parental rights and responsibilities among more than two parents.  I wrote about some examples here.

The law enables adoption beyond two parents by stating that if the existing parents agree in writing, then an adoption can take place without terminating the rights of those existing parents.  The most common scenario of this sort for LGBT parents has been one in which all concerned want both the known donor and the birth mother's female partner to be legal parents of the child.  This statutory authorization, however, is most likely to impact heterosexuals, given how much divorce and remarriage there is.  The provision will mean that if both the custodial and the noncustodial parent agree, then the custodial parent's new husband will be able to adopt the child without terminating the rights of the noncustodial parent.  I have been advocating such a possibility for years, but this is the first law explicitly sanctioning such arrangements.  The divorce rate of second marriages is at least as high as that of first marriages, which means that down the road we will be looking at multiple parent custody and visitation arrangements on a regular basis.

Among LGBT families, I expect to see four parent adoptions as well.  If a gay male couple and a lesbian couple want to raise a child, the new statute will allow the partners of both biological parents to become adoptive parents.  It remains to be seen what evidence of stability a court will require before giving a child four parents with equal legal claims in the event of dissolution.   It's also an open question whether courts will, or even should, be more vigilant about later addition of parents than they are about more than two people setting out to parent a child at the outset.

A court grants an adoption based on a child's best interests.  But there is more to the new law than the availability of adding parents through adoption.  California creates presumption of parentage under numerous circumstances.  Living with a child and holding her out as one's own is one such presumption, and it was the basis for finding parentage of the nonbiological mother in the pathbreaking Elisa B. case.  Marriage to the woman who gives birth to the child also creates a parentage presumption.  The M.C. court found that a child's biological father and her biological mother's wife were both presumed parents (in addition to the mother of course) but that the child could not have three parents under existing law.  The trial judge had found that the child had three parents, and the new law makes that result possible going forward.

But here the standard is something other than best interests.  The court must find that limiting the child to two parents would be detrimental to the child. In determining detriment, the court is to consider
the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.
Detriment does not require finding anyone involved unfit.  As I read this language, in advance of any court interpretation (which will come soon enough given family litigation in California!), this standard will favor a functional parent, and if additional parentage is sought by someone who has not functioned as a parent, that person may well be unable to prove detriment.  That sounds like a good call to me, but we'll have to wait and see how this standard plays out in practice.

Kudos to NCLR and all who worked on this bill!

Friday, September 20, 2013

ACLU sues Nebraska over refusal to license foster parents who are gay or living with an unmarried partner

In the advent of United States v. Windsor this summer, most public and media attention was focused on those lawsuits challenging bans on same-sex marriage across the country.  Lost in all the marriage emphasis was a challenge to an 18-year-old policy of the Nebraska Department of Health and Human Services banning the licensing of foster parents who are gay or living with an unmarried partner.  The ACLU filed the challenge last month.  The ACLU LGBT Project has been the main organization challenging outright adoption and foster parenting bans around the country, with great success in Florida and Arkansas in the last several years.  Because anyone who wishes to adopt a child in the custody of HHS must first be licensed as a foster parent, the policy effectively bans adoption of children in state care.  The 1995 administrative memorandum establishing the policy notes that children were not to be removed from existing placements, that case-by-case assessment was permitted when a child was being placed with a relative who was gay or living with an unmarried partner, and that applicants were not to be directly asked their sexual orientation.  The ACLU's Complaint notes that HHS would not have left children with gay foster parents, or made such placements under some conditions, if it had concluded that no gay person or couple could provide a suitable foster home.

The lead plaintiffs, Greg and Stillman Stewart, adopted five children from the California foster care system before moving to Nebraska in 2011.  When they applied to foster children there, they were turned down.  The Complaint cites a June 2013 state report documenting almost 4000 children in out-of-home placement, including over 900 in group homes, treatment and detention facilities, and emergency shelter care. It also notes that in April 2011, the US Department of Health and Human Services distributed to state agencies a memorandum advising agencies to recruit and train the "largely untapped resource " of gay men and lesbians willing to adopt children.  (More evidence of President Obama's commitment to LGBT issues).

The causes of action in the Complaint include discrimination on the basis of sexual orientation and violation of the consitutionally protected right to maintain intimate relationships, under both the Nebraska and US Constitutions.  The ACLU brought the case in a state trial court, which puts the case on track to be heard, in the end, by the Nebraska Supreme Court. By contrast, a case filed in the federal District Court would have gone on appeal to 8th Circuit Court of Appeals.  One of the most fascinating aspects of LGBT rights litigation for the past 25 years has been watching advocates choose between state and federal courts.  The only federal appeals court to examine an outright ban on LGBT adoption was the 11th Circuit, and they rejected every argument made by the ACLU on behalf of a stellar set of plaintiffs who were already raising children in Florida but were prohibited from adopting them.  The Florida ban was ultimately struck down in the state courts.  The Arkansas ban was also struck down in state courts.

I'm very enthusiastic about this litigation, but I have one gripe.  Since anyone living with an unmarried partner is banned from fostering, I wish one such person was among the plaintiffs.  I would even like to see a single gay man or lesbian included.  But I am especially pleased that the Complaint does not argue that the ban is unconstitutional specifically because same-sex couples cannot marry.  That argument, which the ACLU is making in its challenge to North Carolina's ban on second-parent adoption, implies that it would be constitutional to ban unmarried couples from adopting as long as same-sex couples were permitted to marry.  This diversion from the decades long emphasis on individual assessment of foster and adoptive parents without regard to their sexual orientation or marital status, an emphasis that focuses on the needs of the children for loving homes, strikes me as an unfortunate consequence of the incessant emphasis on marriage in LGBT rights advocacy.

At this point Nebraska will just look foolish trying to defend its ban.  That doesn't mean it won't try.

Thursday, September 12, 2013

Another Arkansas ruling against a mother with a same-sex partner

Two years ago the Arkansas Supreme Court, in Cole v. Arkansas, threw out the state's ban on adoption by unmarried couples (gay or straight) because such couples have a constitutional right under the Arkansas Constitution to have their nonmarital relationship.  It was a huge victory.  I have written since then about other Arkansas cases in which a parent has lost custody because of having a nonmarital partner, and it has happened again.  In Brimberry v. Gordon, the appeals court reiterated that trial judges can assess a parent's "morality" in front of the child.  The trial court in this case said that the mother's same-sex partner spent the night in her home and that the child climbed in bed with them in the morning.  This is what the trial court found inappropriate, and the appeals court agreed.

I do not get it. The same couple cannot be denied the adoption of a child on the basis of their nonmarital sexual relationship.  The child can be placed forever in their home as their child.  How can the identical behavior cause a mother to lose custody of the child since has raised since birth?  The court faults her "poor judgment" and "promiscuity," although there is no mention of more than one romantic partner and the poor judgment appears tied to the overnight visits when the child is there.  Supposedly her "lifestyle choices" not her "homosexual relationship" led to the custody denial, but the two are used interchangeably.  The trial judge had some concern about the mother's lack of employment or academic progress in college, and her leaving the child in day care, but if these were legitimate concerns they would need to stand on their own without concern about her same-sex partner, and the appeals court did not make that distinction.

The most common rule about nonmarital partners and custody is that the parent's sexual relationship must have an adverse impact on the child before it can be used against the parent (often called the "nexus" test).  In this piece I wrote earlier this year for UCLA Law Review Discourse, I explain that even this test is wrong.  A court should be able to take anything into account that harms a child; there is no need for a special rule for nonmarital partners.  But the Arkansas court in this case doesn't even give lip service to the nexus test.  How that can be in a state that constitutionally protects nonmarital relationships is an enduring mystery to me.

Wednesday, September 11, 2013

Wisconsin appeals court ruling misses mark on nonbio mom's status

My summer blogging hiatus is over.  I've been shocked into resuming this blog by last week's ruling from the Wisconsin Court of Appeals in Bowden v. Korslin.  The opinion contains a bare outline of the facts of Belva Bowden and Amy Korslin's family life.  They had a committed relationship for many years; Korslin bore a child in 1998, whom the couple raised together until they split up in 2006.  At that point the couple signed a written agreement that they would have equal time with their daughter, Alissa, and share her expenses.  In 2008, Korslin cut Bowden's time to every other weekend, and Bowden filed a court action for equal time with the child.  Of the relationship between Bowden and the child, the court simply says that Alissa "views Bowden 'like a mom.'"

Well it turns out that all the appeals briefs are online on the court's website (two thumbs up on that!), so I read a bit more about the case there.  For example, there was a guardian ad litem at trial who advocated equal placement with the two women.  And the guardian ad litem also reported that the child wanted the visitation to go back to every other week in each home. There was also an expert witness, who is mentioned in the court opinion, but whose testimony also referred to the two women as "parents" (in case reading the scanty facts in the appellate ruling leaves any doubt in a reader's mind that this was, indeed, a two parent home). Korslin did not argue that Bowden shouldn't see the child; she said she would continue four overnights a month, but she wanted to pick the nights rather than be stuck with an every other weekend schedule.  She also offered one week in the summer.  Korslin based her factual argument on the fact that for three years the child was having every other weekend visits and there was no detrimental effect on her of the change from every other week.  Korslin repeated that she wasn't cutting Bowden out; she just wanted to control the visitation schedule.

Another interesting fact:  Korslin claimed that she signed the agreement to equal custody because Bowden said if Korslin didn't then Bowden would tell the child who her biological father was.  I don't know if this is true, but it's interesting to me that there was such a known person, who figures not at all in the dispute.  The brief does not say how conception occurred.  In addition, the briefs all use the child's first name, Alissa, which I am therefore using throughout this post. (The opinion uses her initials, A.M.K.)

Nothing justifies that a case filed in 2008 involving a child's placement is being resolved by an appeals court five years later. After all, at this point (but not five years ago) one would expect this 15-year-old to have a lot to say about how much time she spends in which home.  The trial court held hearings over three days between March and October of 2010 but did not rule until August 2011.  The briefs were submitted on the appeal by August 2012 but the appeals court took over a year to issue this ruling.

Anyway, after the trial court awarded Bowden every other weekend, one evening every other week during the school year, and every other week during the summer (which was less than what she wanted), Korslin asked for a child support order, which the trial judge granted.  Korslin then appealed the visitation order and Bowden appealed the child support order.

This is the point at which some Wisconsin history is relevant.  After nonbio moms in the early 1990s were denied all contact with their children in well-known cases in New York and California (and other states), the Wisconsin Supreme Court in 1995 ruled in favor of a nonbio mom, granting the right to visitation when set criteria were established.  What a relief to all of us at the time to have a court understand the child's need for ongoing contact with someone who had been established by the biological mom as another parent.  But, the victory was still short of recognizing that both women were the child's parents.  Today, when many states, including some not so friendly to LGBT rights in general, do recognize that a child has two mothers in the type of family Bowden and Korslin created, the rule established going on 20 years ago in Wisconsin is wholly inadequate and should be replaced.

Bowden is not a "third party" to Alissa.  She is a second parent.  Wisconsin is one of the few states with a state supreme court ruling that second-parent adoption is not permitted in the state, so Korslin and Bowden could not have done that.  But a child doesn't base love and connection on legal doctrine but on lived reality.  And Korslin did not dispute that Bowden had a "parent-like" relationship with Alissa, one of the required findings for awarding Bowden visitation.

The appeals court agreed with Bowden's argument that she could not be required to pay child support because she isn't a parent.  Here Korslin's attorney clearly was asleep at the wheel.  The opinion says that she conceded no statutory basis for the support order and offered no other grounds.  The trial court thought it could order support because of the 2006 contract between the parties, but the appeals court didn't think an agreement to "share all expenses" meant child support.  Plus, even if it was clear, the appeals court said it couldn't be enforced apart from the other provisions of the agreement which primarily concerned the child's placement.  But in other states bio moms have gotten child support on theories of estoppel and other equitable bases.  Korslin didn't make such an argument.

Now I do have a bit of sympathy with Bowden who, after all, was not found a parent for custody purposes.  But the visitation rights she received -- which were affirmed by the appeals court -- were pretty much what noncustodial parents receive.  Denying Korslin child support is wrong, and I cannot see how two wrongs make a right here.  I have no doubt there is bad blood between these two women, but that makes them no different from many separated heterosexual parents, and the child is entitled to appropriate support from both parents.  Oh, and to make matters worse, the appeals court ordered Korslin to repay Bowden all the child support she paid.  Really.

As I mentioned, Korslin was not successful in overturning the visitation order. But on its way to explaining why, the appeals court makes a telling slip.  It says, "Whether to grant or deny visitation to a non-biological parent is within the discretion of the circuit court."  A nonbiological parent? Yup, that's what they say.  Only two paragraphs after referring to Bowden as a non-parent.  Try as it might to deny it, the court actually gets it that Bowden is a parent.  It just can't find its way to make that a holding.

So the analysis of the vistitation granted includes a nod to a 2002 decision on grandparent visitation requiring a trial court to presume that a fit parent's decision regarding visitation is in a child's best interests and making the party seeking nonparent visitation rebut that presumption.  On this point Bowden's lawyer missed the mark.  The opinion says the parties' arguments on appeal assumed that the presumption applied also when a "former partner of the biological parent seeks visitation."  And I confirmed from reading the brief that this is accurate. Why would Bowden's lawyer concede that?  The difference between a child's grandparent and a second parent, who has lived with and raised the child for 8 years, and then co-parented while separated for another two years, is so obvious that I find it shocking that the lawyer never argued that.  (The lawyer could have found the argument in a law review article I wrote over 10 years ago, and in numerous other sources, including cases from other states, as well).  Anyway, the appeals court found that the trial court did apply that presumption and still did not commit legal error or abuse its discretion in ordering the amount of visitation it ordered.

But Bowden did not appeal the court's refusal to award her equal time.  Given the extent of deference to the trial court, she probably would have lost.  But perhaps had her lawyer argued all along the difference between a grandparent and a person in Bowden's position, he would have been more successful in the first place.  Receiving every other week in the summer vastly increases the number of days in the year Bowden and her daughter will spend together, but the six nights a month, albeit on a fixed and predictable schedule, isn't a whole lot more than what Korslin was willing to extend.

Given the inadequate lawyering on both sides, my best news about this opinion is that the court has slated it for non-publication.  A case in which both sides failed to make important arguments shouldn't be precedent for any subsequent case.  But the case is also a reminder that lawyers without expertise in family law disputes between same-sex couples need to seek out those who do have the expertise.

Wednesday, June 26, 2013

ALL children are as good as all other children...someone tell THAT to Justice Kennedy and the Prop 8 plaintiffs

On the steps of the US Supreme Court today, a plaintiff in the Prop 8 case said that the message from the Supreme Court to same-sex couples is that "your children are just as good as other children."  I am looking for affirmation that all children are equal, no matter what their family structure.  Justice Kennedy writes that the federal differentiation between same- and different-sex couples "humiliates tens of thousands of children now being raised by same-sex couples.  The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

What about the children of unmarried couples? single mothers? being raised by extended family members?  They also deserve not to be demeaned and humiliated by their family structure.  I can't rejoice until that's true as a legal and a cultural matter.  I hope considering the well-being of children of same-sex couples who marry will be one step in that direction.  It is certainly not an end in and of itself.

I released the following statement today to media outlets that requested my reaction to today's opinions.  Of course I speak for no one but myself:

I am so dismayed by the dismantling of the voting rights act yesterday.  Race is still a central component of who our society values or doesn’t value.  The DOMA opinion means married same-sex couples will be treated as married under federal law.  But the demographics of who marries now is highly skewed by race and class.  There is every reason to assume those demographics will hold for lesbians and gay men as well.  So we will have same-sex couples who don’t marry, just as we have different-sex couples who don’t marry.  And we will have lots of legal consequences linked exclusively to marriage that ignore the vast number of family relationships in this country that are not based on marriage.  I am very happy to see Kennedy’s opinion recognize the dignity that same-sex relationships must be afforded and also recognize how demeaning of gay people it was for Congress to pass DOMA.  But Kennedy refers to DOMA has humiliating the children of same-sex couples. NO children should feel humiliated by their family structure.  Children of unmarried parents should not feel humiliated.  All children are equal and the families that raise them deserve equal respect.

More from me later  about the Supreme Court rulings.

Friday, June 21, 2013

DC considers new surrogacy legislation

Surrogacy is a crime in the District of Columbia.   That's likely to change later this year.  Yesterday the DC City Council Committee on Public Safety and the Judiciary held a hearing on a bill that would revoke the ban and regulate surrogacy -- well at least regulate gestational surrogacy.  In my testimony, I urged the City Council to include traditional surrogacy in the new law.  Here's my testimony in full:

Testimony by Nancy D. Polikoff on Bill 20-32

a/k/a “Collaborative Reproduction Act of 2013”

D.C. City Council Committee on Public Safety and the Judiciary

Thursday, June 20, 2013 

Thank you for the opportunity to present testimony on Bill 20-32, both the original bill and the working draft prepared by Committee staff. 

My name is Nancy Polikoff.  I am Professor of Law at American University Washington College of Law, where I have taught Family Law for more than 25 years. I also teach a course on Children of LGBT Parents. I have been a D.C. resident for more than 40 years, and a member of the District of Columbia Bar since 1975.  I have devoted the bulk of my career to the legal issues facing lesbian, gay, bisexual, and transgender families, and especially LGBT parents.  Over the past several years I have worked with the Council of the District of Columbia Committee on Public Safety and the Judiciary on numerous pieces of legislation affecting LGBT families, including the Domestic Partnership Judicial Determination of Parentage Act of 2008.[1]

I unequivocally support the decriminalization of surrogacy in the District of Columbia.

With my limited time today, I would like to focus on two specific points.  I will submit supplemental materials at a later date.  Those points are: 1) gestational and traditional surrogacy should be regulated equally in this legislation; and 2) a woman who bears a child should have a brief period of time after the child is born to assert a claim of parentage. 

Traditional and gestational surrogacy should be regulated equally

The working draft improves original Bill 20-32 by providing detailed requirements and procedures, but it does so only for gestational surrogacy.  It decriminalizes traditional surrogacy, but there are no rules or regulations for implementing traditional surrogacy arrangements.

I strongly believe that gestational and traditional surrogacy should be treated the same. I have three general categories of objection to distinguishing between traditional and gestational surrogacy.  One is conceptual inconsistency with all other LGBT parenting work.  The second is accessibility to the greatest number of intended parents. The third is the health of the woman who will become pregnant.

One: For more than 20 years advocates for lesbian and gay parents have emphasized that genetics is neither necessary nor sufficient to create parentage.  In 2008 and 2009, I worked with this committee on parentage legislation, which the City Council enacted, ensuring that when a lesbian couple plans for a child conceived through donor insemination then both women are the legal parents of that child. The semen donor in such instances is not a parent, absent a written agreement to the contrary. The position that a semen donor is not a parent is consistent with the law in numerous other jurisdictions.  This demonstrates the LGBT family law position that a genetic connection is not sufficient to create parentage. 

In states that do not make it easy for both women to be legal parents, there has been much litigation when a couple’s relationship ends. Unfortunately, the biological mother sometimes claims at that point that she is the child’s only parent, because her former partner lacks a genetic connection to the child. Every national LGBT legal rights organization in the country supports and represents nonbiological mothers against such claims, taking the position that a genetic connection is not a necessary component of parentage.

The only difference between a “traditional” surrogate and a “gestational” surrogate is genetics: the pregnant woman in traditional surrogacy has a genetic connection to the child and the pregnant woman in gestational surrogacy does not.  Legislation facilitating gestational surrogacy but not traditional surrogacy assumes that the experience of gestating a fetus can be the subject of a binding contract, so much so that in most laws, as well as in the working draft of Bill 20-32, the gestational surrogate can never change her mind and assert any claim as a parent of the resulting child.  In other words, from this point of view, gestation is not a sufficient connection to create parentage. 

The District of Columbia has already decided, along with many others jurisdictions, that genetics is not a sufficient connection to create parentage.  A semen donor who decides after conception or after birth that he wants to assert a parentage claim to the resulting child will lose in court.  Our law, as many others, says he is not a parent.  He may have a genuine change of heart.  It does not matter.  He is not a parent.

To be consistent, the genetic connection a traditional surrogate has to a child also cannot be sufficient to create parentage.  Omitting traditional surrogacy from legislation may reflect a belief that a traditional surrogate’s acts of gestating the fetus, when added to her genetic connection, create a claim to parentage that cannot be the subject of contract. But this belief can only be premised on the conclusion that gestation adds something of legal consequence to her genetic connection.  But the premise of enforceable gestational surrogacy agreements is that gestation cannot give rise to a claim to legal parentage.

Either gestating a fetus until birth is an act of caregiving that creates a claim of parentage or it does not.  I believe that it does, as I will get to in a moment.  But those who say it does not, and still want to distinguish between traditional and gestational surrogacy, are taking a position on the importance of the woman’s genetic connection to the fetus she gestates that flies in the face of over 20 years of advocacy on behalf of same-sex couples raising children.

If there were no downsides to omitting traditional surrogacy, perhaps the above inconsistency could rest in the domain of theoretical, academic interest.  But there are two significant downsides, to which I now turn.

            Two: The accessibility issue is simple.  Gestational surrogacy, whose costs easily exceed $100,000, is limited to the richest among us.  The intended parents must pay the medical costs of extracting eggs from an egg donor, creating embryos in vitro, and inserting those embryos into the gestational surrogate. They also must pay the egg donor for her eggs. Those who do not have the wealth to pursue this form of assisted reproductive technology want children and can be good parents. A gay male couple of modest means (as well, of course, as an infertile heterosexual couple) should have the ability to plan for and create a child using the same low-cost method that a lesbian couple uses:  insemination of a woman with semen from a man. 

            I would add the following.  People are using traditional surrogacy to have children and will continue to.  The only issue before this committee is whether the law of the District of Columbia will give those people clear guidance and procedures, creating more predictable outcomes for families and children.  I support the eligibility requirements for the parties in the working draft of Bill 20-32 and believe they should be extended to the parties to a traditional surrogacy contract.  Even though some people will continue to conceive children without fulfilling the eligibility requirements and other criteria, that is no reason to abandon those couples who are more than willing to follow prescribed procedures but cannot afford gestational surrogacy.  With no such regulation in place, every time a gay male couple wants to conceive and raise a child, and that couple cannot afford gestational surrogacy, they are on their own, as is the woman who agrees to help them become parents.  I do not believe the City Council should leave to their own devices that portion of this city’s population.

             Three:  For a woman who wishes to carry and gestate a fetus for intended parents, traditional surrogacy requires less medical intervention, with fewer attendant risks, than does gestational surrogacy.  If a woman is willing to be a traditional surrogate, telling her she must undergo these interventions makes her submit to procedures that are invasive and unnecessary.

A woman who bears a child has a claim as a parent of that child

            When a surrogacy arrangement works as clearly intended, by parties who have met the relevant eligibility criteria, the intended parents are the child’s legal parents.  The advantage of surrogacy legislation is that it streamlines the process for all who deal with the parties, including the Vital Records office, so that accurate legal documentation of the child’s parentage is created.  The intended parents are the child’s legal parents and no adoption proceeding is necessary to establish that.

But legislation must also address what happens if there is a dispute among the parties.  The working draft of Bill 20-32, as is common, provides for specific performance of an agreement that meets the requirements of the law.  Of paramount importance is the inability of the surrogate to assert a claim of parentage of the child she gives birth to.

Unlike gamete donation of either egg or sperm, gestation requires acts of caring for a growing fetus.  I believe those acts entitle that caregiver, the pregnant woman, to claim parentage of the resulting child. Let me be clear that I believe that properly screened surrogates, who have previously given birth and who satisfy a mental health professional that they are suitable for the task, are highly unlikely to change their minds.  In fact, I believe that those involved in the surrogacy process will take extraordinary care in selecting surrogates – as reputable agencies do now – if the consequence of selecting without that care is a broken contract.  The most desirable outcome of a surrogacy contract is that all involved will fulfill the terms of their agreement.[2]

I do believe it is reasonable to hold a surrogate to her agreement to relinquish the child unless she makes her position known at the time of the child’s birth or shortly thereafter.[3]  The child is entitled to stability, and a surrogate loses any claim to be a parent, whether she has a genetic connection to the child or not, once that time has passed.  If the surrogate does assert parentage, the intended parents nonetheless remain parents of the child, and if there is no agreement among the parents, custody would be determined by the Superior Court according to the best interests of the child.

I would close by saying that if this committee disagrees with my position on the parentage claim of a surrogate, I nonetheless believe that traditional and gestational surrogacy should be treated alike under this legislation.  If specific performance is an appropriate remedy for a gestational surrogacy contract, it is an appropriate remedy for a traditional surrogacy contract as well.

I look forward to working with this committee to develop the best possible surrogacy legislation for the District of Columbia.  Thank you for the opportunity to testify on this important legislation.            

[1] I would like to thank Lauren Nussbaum, WCL Class of 2014, for our discussions in which I developed some of the views I express herein (which are not entirely consistent with her own).
[2] Even with surrogacy unlawful in the District of Columbia, couples living in the District of Columbia have used surrogates in other jurisdictions to have children.  One of the earliest second-parent adoptions in DC, in the early 1990s, was a gay male couple who had a child using a surrogate. There was no disagreement among the parties, and the surrogate relinquished all parental rights in the proceeding in which the genetic father’s male partner adopted the child.
[3] I am aware of two states that have such provisions.  Florida (for traditional surrogates only) provides a 48 hour period.  New Hampshire (which does not allow donor eggs but does allow surrogacy using the egg of the intended mother or the surrogate) provides for a 72 hour period. In the case of a birth without complications, even 24 hours should be sufficient.

Saturday, June 8, 2013

Supreme Court sides with designated beneficiary

I'm in vacation mode, so I'm late in blogging about last Monday's US Supreme Court ruling in Hillman v. Maretta, which I wrote about here when it was argued.  (Refer to that post for all the facts and arguments on both sides.)

The Court has unanimously affirmed the Virginia Supreme Court's holding that federal law preempts a state statute allowing a current spouse to recover a deceased federal worker's life insurance proceeds from a designated beneficiary who was the worker's ex-spouse.  Although I found good policy arguments on both sides, this was the result I wanted.  The Court found that the intent of the federal life insurance program was to pay the proceeds to whoever an employee choses. (The employee can change his or her beneficiary at any time and this information is conveyed to employees.)  Any state law frustrating that purpose is preempted, and that's what the Virginia statute at issue did.  Maybe Hillman intended to revoke his ex-wife when they got divorced (which was 10 years before he died), but he never did that.  The designation governs, so she gets the money, and Virginia can't circumvent the federal statute by allowing Hillman's widow to sue the ex-wife for the proceeds.

This is a victory for allowing an employee to decide who should get financial compensation when he or she dies.  I like this.  An employee can pick an umarried partner (same- or different-sex) without fear that his or her parents will claim to be next of kin and entitled to the money. 

When an employee does not choose there is a listed order of precedence, with a widow or widower at the top.  This is what we would expect in our legal system.  But I think that's the wrong choice.  The top should be reserved for minor children. When Congress first wrote these laws the divorce rate was much lower and there were fewer nonmarital births. An employee's minor children probably lived with his (more likely to be his then) widow.  Now, when an employee does not designate a beneficiary, the proceeds go to the widow/widower, even if the employee's minor children are being raised by an ex-spouse. 

Minor children can't take care of themselves.  Adults (including the widow or widower) usually can.  The first order of precedence, therefore, should be those children.  This is the "beyond marriage" approach.

Saturday, May 25, 2013

Texas lesbian mom ordered to stop living with her partner

By complete coincidence, just after I posted earlier this week about restrictions on the custody and visitation rights of gay and lesbian parents, an example of that very thing hit the national news. Carolyn Compton, the mother of a 10 and a 13 year old, and her partner, Page Price, were ordered to separate in order to comply with a provision in Compton's 2011 divorce decree that no unmarried romantic partner could spend the night when the children were present.  The judge gave Price 30 days to move out.  If she doesn't, the judge could award Compton's ex-husband custody of the children (although no coverage I have seen mentions that). Here is one report that focused on the potential unconstitutionality of the restriction, saying it was ultimately a question for the US Supreme Court.

But as I wrote in my previous post, the Constitution isn't the issue, and Compton is not going to win going down that route.  The issue is how the children are doing and what their relationship with Price is like.  According to an article in the Dallas Morning News, a "morality clause" banning unmarried overnight romantic partners is standard in several Texas counties.  Some accounts focus on the fact that Price and Compton cannot marry, but, as the article I recently published points out, the marital status of the couple should have no significance whatsoever.  The focus should be on the children.  If a parent remarries and the presence of the spouse is harmful to the children, the fact of the marriage doesn't solve anything and should not absolve the parent from an assessment of whether that parent's choices are good for the children.

For the record, I do believe restrictions on parents' sexual relationships violate their Constitutional rights, but no court in a custody or visitation case has ever ruled in favor of a gay or lesbian parent on Constitutional grounds. Plenty of courts have ruled for gay and lesbian parents by finding that the parent's relationship was having no adverse impact on the children.  A few years back, a Tennessee appeals court struck down an automatic provision against the presence of "paramours" (although the court had to do it twice before the trial court would comply).

In my previous post I pointed out that anything a parent does that harms a child should be considered in determining custody and visitation, and that nothing about having a nonmarital partner should be treated differently from any other decision a parent makes.  I wouldn't expect Texas to embrace precisely that principle, but it's not too much to expect that an appeals court might require an inquiry, with actual evidence, into the well-being of the children.  The couple has made a statement that Price's move will be disruptive and harmful to the children.  I can believe it.  I hope an appeals court tells the trial judge he has to make an assessment about this family and these children rather than enforce a blanket provision against the presence of unmarried partners.  Even in Texas, I believe that's possible.

Tuesday, May 21, 2013

Why constitutional arguments don't win for LGBT parents leaving heterosexual marriages

I love the relatively new phenomenon of law reviews creating online editions of short pieces.  It means instant accessibility for ideas that don't need 75 pages in a law review and don't need a zillion footnotes.  So I'm happy to highlight a piece I contributed to UCLA Discourse on the subject of LGBT parents who wind up in disputes with heterosexual ex-spouses over custody and visitation rights.  The piece is called Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles.  It is part of a larger "volume" containing pieces submitted by participants in a UCLA symposium earlier this year called Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries.  You can read all the submissions here.

My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either.  Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification.  I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point.  A parent's sexual orientation can never harm a child.  And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.

The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families.  It's not that way everywhere.

Thursday, May 16, 2013

Florida: A sperm donor is not a parent -- so far, so good. But a nonbio mom is not a parent, and that's the real problem

In an opinion rendered yesterday in A.A.B. v. B.O.C., a Florida appeals court has reiterated that a sperm donor is not a parent.  That's what the Florida statute says, and that's what a previous appeals court held more than a decade ago.   A.A.B. applied that statute to find that the trial court was therefore wrong to rule that B.O.C. was the father of 12-year-old C.D.B. in spite of the oral agreement of the parties that he was merely a donor.  The appeals court rightly found no distinction based on the fact that the parties performed the insemination at home and not through a doctor.

That's the so far, so good part.  The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).

The real problem, however, is lurking in the facts of the case.  B.O.C. is the brother of A.A.B.'s former partner, S.C.  S.C. and A.A.B. split up when their child was three.  They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child.  Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C.  In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.

So S.C. could not file for custody, and so she pursued a different legal avenue.  Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.

This case reminds me of a different series of all too common cases, not in an LBGT context.  Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights.  The law makes her relinquishment irreversible.  So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption.  (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).

As I read all those cases, the real issue is that the mother changed her mind.  But some states are so quick to accept irreversible relinquishments that she has no recourse.  In my mind, that's the real problem in those instances.  I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child.  And I say this as an adoptive parent, so it's not that I think adoption is bad for children.  Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.

In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse.  So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child.  And it's that lack of recourse that's the problem in Florida.

Giving B.O.C. parental rights would have been wrong.  If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART.  But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents.  All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.

It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child.  But the ruling handed down yesterday doesn't raise that issue, and it should stand.

And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time.  They could do it now and that would solidify their family.  But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child.  Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.

Monday, May 6, 2013

US Supreme Court will rule on this: Who gets a deceased federal employee's life insurance proceeds, his wife or his designated beneficiary, who happened to be a long-ago divorced ex-wife?

I was plenty busy with the same-sex marriage cases and the Indian Child Welfare Act case, so I'm just now catching up on another case the Supreme Court will resolve by the end of June. It's Hillman v. Maretta, a case raising some very interesting questions, which was argued last month on the last day of this Term.

The facts are simple.  Warren Hillman worked for the federal government.  In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy.  This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002.  He was still married to that wife, Jacqueline Hillman, when he died in 2008.

Warren Hillman never changed his beneficiary.  Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta.  At this point Virginia state law kicked in.  Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce.  Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit.  Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.

Virginia law cannot trump federal law because of the doctrine of preemption.  So federal life insurance proceeds still go to whoever is designated by the employee.  No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to.  But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her.  That's the law being challenged in this case.

The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered.  It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents.  She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money.  But nonmilitary federal life insurance doesn't have that same provision.  So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.

Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary.  She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse.  Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else.  If the order is filed with the plan administrator before the employee dies then the plan pays according to the order.  (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.)  The federal government agrees with Maretta.

Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing.  If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents.  Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.

But. On the other hand, we want a person's real intent to govern.  When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage.  Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.

The federal government doesn't care at all about intent. It wants the plan administration to be simple.  Look at the forms.  See whose name is there.  Pay the benefit.  That is the very definition of simple.  Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.

The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations.  If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.

So I'm back and forth on this one.  Ultimately, however, I come down on Maretta's side.  Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends).  Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.

Friday, May 3, 2013

Iowa Supreme Court rules birth mother's female spouse must be listed on child's birth certificate

I've written extensively about the Gartner case, in which Lambda Legal represented a married lesbian couple challenging the refusal of the Iowa Department of Health to place the name of the nonbiological mother, Melissa Gartner, on the child's birth certificate.  Today the Iowa Supreme Court ruled that the Department was wrong.  Mackenzie Gartner gets a birth certificate naming both her moms.  This is good news.

So why am I not celebrating?  In other posts I have criticized this litigation because it helps only children whose moms are married.  I stand by that criticism.  The court's opinion makes me more concerned than ever.  The court says "we recognize the strong stigma accompanying illegitimacy."  Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate?  Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.

But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption.  Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways.  Here is just one example.  Every state has a statute that paternity judgments must be given Full Faith and Credit by other states.  Every state.  Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers.  The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers.  That is the wrong result, and it will hurt many, many of our families.

In this part of the opinion the court also showed that it does not understand parentage law across the country.  In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong.  Here are the two most egregious mistakes.  The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological.  And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.

I actually feel great outrage at this footnote.  It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child.  Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.

So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate.  It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child."  The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way.  As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.

There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate).  Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions.  But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status.  Many states have done this, including states without same-sex marriage.  I have written about them in these posts over the years, so I won't try to summarize here.  But that's what our families need and deserve.

Tuesday, April 30, 2013

Financial aid changes for children of same-sex (and other unmarried) couples

I have consistently pointed out that marriage and parentage are two separate matters and that parentage for two same-sex parents can exist regardless of marriage.  I also say (repeatedly) that marriage shouldn't be the bright dividing line between who is in or out of any law or regulation.

Well, comes the Department of Education taking both these principles to heart.  If you have college-bound children, listen up.  The DOE is changing the way it calculates the income available to a student when considering how much financial aid s/he is eligible for.  Now when a child has two parents, not married to each other, and those parents live together, the income of only one parent is counted.  In the future, the financial aid application (FAFSA) will collect income information on both parents.  The new application will also use gender neutral terminology (like "parent 1" and "parent 2").

This makes sense to me.  Although most states end the obligation to support a child at 18, the government assumes for all children that those whose parents have more income should qualify for less financial aid.  That leaves more for those whose parents cannot contribute as much, even if they would like to.  Given that reasoning, all parents should be treated alike.  It is parentage, after all, that creates whatever legal obligations do exist, and it is incoherent to treat student A, whose parents live together and earn $50,000 and $30,000 respectively, differently from student B, whose parents live together and earn $50,000 and $30,000 respectively, simply because student A's parents are married and student B's parents are not.

The new regulations will apply to children with unmarried heterosexual parents and with same-sex parents, married or not.  (Again, the parents must live together.) The press release explains, rightly so, that this new approach does not violate DOMA because it turns on who the child's parents are, not whether those parents are married under federal law.  Years ago, under a Republican administration, the Justice Department found that it is not a violation of DOMA to allow a child to get benefits from Social Security as a result of the disability of the child's nonbiological mother in a Vermont civil union with the child's biological mother.  The significant legal question was whether under state law, the child could inherit from the nonbiological mother under the rules of intestate succession.  The answer to that in Vermont was yes, and that was that.

This FAFSA change will not be wrinkle free for same-sex couples.  I don't think all couples know whether they are both legal parents.  If they have done second-parent adoptions (or gotten parentage judgments), they do.  But in a number of states parentage exists without a second-parent adoption based on statutes concerning children of donor insemination or those based on "holding out" a child as one's child or otherwise functioning as a parent.  How are those parents supposed to understand distinctions that sometimes baffle lawyers? I'm guessing the DOE thinks that if a lesbian couple is married or in a civil union or comprehensive domestic partnership, then both are parents.  But how about the couple who lives in Virginia, where there is no relationship recognition, but married in DC?  Will DOE count them both as parents?  That doesn't exactly seem right, since presumably if a Virginia nonbio mom dies her child does not inherit by intestate succession.

I mean, really, those of us with deep expertise in this area of law sometimes cannot be sure if someone is a child's legal parent. It's unrealistic to think that individual parents will always know this.

Then again, the FAFSA does not reflect legal obligations (since most states end the support obligation at 18), so why will two couples be treated differently depending on whether both people functioning as parents are considered legal parents in their state?  It's odd to think that a child whose family lives in a nonrecognition state where second parent adoption is not allowed (let's take North Carolina) will qualify for more financial aid than a child in whose family has the same exact income but lives in a state where the parents were able to do a second parent adoption (let's take New Jersey).

There is one other point worth considering.  Will there be families who are financially disadvantaged because the couple's marriage is not recognized under federal law who will nonetheless have both incomes counted for their child's financial aid?  When both parents earn the same amount of money the FAFSA will show much more parental income.  But that couple actually does better being unmarried under federal tax law.  When one parent earns almost all the income, the couple would do better filing federal taxes as a married couple, but they also won't have a lot more income to count adding the second parent's income to the FAFSA.

For the moment I am giving a thumbs up to the administration on this.  They are rightly focussing on parentage, not marriage.  Here is the press release.  Proposed regulations will be out this week.  then we'll know more.