What's the matter with Kansas? NOTHING if you are the child of a lesbian couple

This is how parentage should be determined. The Supreme Court of Kansas ruled yesterday, in Frazier v. Goudschaal, that two children born through donor insemination to a lesbian couple are the children of both parents.  The court interpreted Kansas parentage law to create presumptive parentage for a woman who "notoriously or in writing" recognizes parentage of the child.  The statute itself says "recognizes paternity," but because Kansas is one of the states that incorporates the paternity provisions into determinations of the mother and child relationship "insofar as practicable," the court applied them to the petition of Marci Frazier, the nonbiological mother of the children her partner, Kelly Goudschaal, gave birth to.  The court specifically stated that under Kansas parentage law two parents can be of the same sex. The couple had a coparenting agreement denominating Frazier a "de facto parent," and the court determined that it did not violate public policy to enforce the agreement as long as it was in the children's best interests.

The facts of the case are ordinary enough.  The children had a hyphenated surname and called Frazier "mother" or "mom." They lived as a family unit, and teachers and daycare providers treated the couple as equal parents. The couple split up when the children were about 3 and 5 years old.  They maintained equal parenting time for about six months.  Then Goudschall began reducing Frazier's time with the girls, and shortly thereafter she announced that she was moving to Texas and taking the girls with her.  That prompted Frazier to take court action. The trial court ordered joint legal custody with primary physical custody to Goudschall and reasonable visitation rights to Frazier.

The court rejected Goudschall's argument that Frazier could not be a mother because she was not a biological or adoptive parent, and that her biological maternity automatically rebutted any presumption Frazier might have.  The opinion principally discusses the written agreement of the parties.  A nonbiological mom without a written agreement should still be able to prevail in Kansas, however, because the statute the court applied does not require a writing; "notoriously" recognizing the child is sufficient. A concurring opinion focused only on parentage under the Kansas Parentage Act, citing California's Elisa B. case and New Mexico's Chatterjee case as precedent.

As always happens, Goudschaal cited Troxel v. Granville for the proposition that she has a constitutionally protected right to raise her child.  The court agreed, but found that she exercised that right when she entered the coparenting agreement.  The court actually said she should be able to enter an agreement to share custody "without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children."  This is an interesting twist on the constitutional right of a parent; it suggests that if a court ignores such an agreement that is interference with the parent's rights.

The court here gave more focus to the children than is sometimes found in cases about the status of a nonbiological parent.  It called them third party beneficiaries of the coparenting agreement.  It found they had a reliance interest in maintaining two parents and avoiding the harm of severing the attachments they formed as a result of the agreement. "So what Goudschall really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights," wrote the court.  It continued, "Surely, her constitutional rights do not stretch that far."  The court did not want the children to "suffer the consequences of their biological mother's change of heart."

The court also cited Supreme Court precedent for the principle that  "all children -- both legitimate and illegitimate -- be afforded equal treatment under the law." Denying the Goudschaal-Frazier children the opportunity to have two parents ("the same as children of a traditional marriage")  would violate the children's constitutional rights.  Note how far this is from the argument that same-sex couples must be allowed to marry to provide their children with equal rights.  This opinion might actually be the strongest statement that a couple should not have to marry to provide two parents for their children.  This is the diametrically opposite result to that in New York, where the Debra H. case held that a child has two parents if the couple is married but only one if the couple isn't married.

The difference in the New York and Kansas opinions are to a large extent dependent on the parentage statutes of the two states.  It's not that Kansas has a gay-friendly statute.  It's that the Uniform Parentage Act, on which the Kansas statute is based, does not require marriage or biology for a finding of legal parentage.  How sensible for all children.

Congratulations and thanks are due to the ACLU, the National Center for Lesbian Rights, and Washburn University School of Law Children and Family Law Center (under the able leadership of Professor Linda Elrod), for the friend of the courts brief they filed in support of Frazier and her children.

Rhetoric matters...and this is what's wrong with Obama's

I'm sure I am supposed to be happy that President Obama, in his Chicago speech last week, included us within the definition of "loving, supportive parents."   According to Obama, that category includes "all kinds of parents -- that includes foster parents, and that includes grandparents, and extended families; it includes gay or straight parents."

But I can't be.

And that's because the thrust of his attention to families was to emphasize fathers and marriage.  And that, even though he referred to being raised by his mother and grandparents and noted that he turned out okay (an understatement by any definition), he said he wishes he had had a present and involved father.  As a statement of his personal feelings I cannot and will not fault him.  But I am not letting him off the hook for his conclusions and his policy prescriptions.  Here is what he said:

There’s no more important ingredient for success, nothing that would be more important for us reducing violence than strong, stable families -- which means we should do more to promote marriage and encourage fatherhood....
 

So we should encourage marriage by removing the financial disincentives for couples who love one another but may find it financially disadvantageous if they get married. We should reform our child support laws to get more men working and engaged with their children. And my administration will continue to work with the faith community and the private sector this year on a campaign to encourage strong parenting and fatherhood. Because what makes you a man is not the ability to make a child, it’s the courage to raise one.

(These latter remarks were underreported when he included them in the State of the Union address).

Marriage and fatherhood as the best way to reduce violence is way off base.  It was off base when Dan Quayle tried it in his 1992 "Murphy Brown" speech.  It was off base when Romney tried it in 2012 in one of the presidential debates.  For real information, read sociologist Philip Cohen, who responded directly to Romney and more recently expounded on the myth that violence can be laid at the feet of single mothers.  His research is drawing the ire of the "marriage promotion" movement, but that just makes him more precise with his rebuttal.  President Obama needs to read his blog posts and needs to stop blaming violence on single mothers and offering marriage as the solution...even as a throwaway line. (If it was that.  I think there is a good argument that no line by a sitting president is ever a throwaway line.)

As for the policy positions in this speech, tax reform that benefits couples who earn roughly equal amounts of income are a good idea, but what about eliminating the huge tax bonus that goes to families with a high earning spouse and a low or non-earning spouse?  The rest of us should not have to subsidize that family form, which is what we do now.  I don't know what child support reform he is talking about.  If it allows poor non-custodial parents to keep more income, when that income doesn't go to their children anyway (because it goes to the government if the child is on public assistance), I am for it.  And as for the private sector, strong parenting depends on employment policies that flexibly account for parental responsibilities.  I don't see Obama specifically refering to those policies (like paid parental leave and paid sick leave), which he should.  Those policies would help fathers and mothers raise children.  As for faith organizations, if their mission is promoting marriage, I say keep them out of it.

I hope other supporters of LGBT families are not lured by the inclusion in Obama's rhetoric to ignore so much that is wrong about it.

Epilogue (in small part) to a transgender parent case

Earlier this week I wrote about transgender parents.  In one of the cases, from 1986, a father, Tim Daly, transitioned (and took a new name, Suzanne Daly) and subsequently lost all parental rights upon the petition of the child's mother.  It is a tragic case.  (You can read it here.)

With these older cases, I always wonder how things turned out for the family.  Sometimes the courts use only initials or pseudonyms, in which case it's impossible to look.  But in this internet information age, I do try to find former parties to the cases and their children.  The Daly opinion used real names.  The child's name was Mary Toews Daly.  She was 12 years old.  My internet search did not uncover her. But it did lead me to an obituary for her grandmother, Mary Maxine Daly.  Mary Maxine was the mother of Mary's father, Tim, who transitioned and and changed his name to Suzanne in December 1982.

So here is a sad fact.  Mary Maxine was 96 when she died, in 2006.  Her death notice contains the following:  "She was predeceased by two sons, Timothy Daly and Patric Sean Daly..."  So almost 25 years after her transition, Suzanne Daly's family could not/would not acknowledge that she had existed.  The child in the case, Mary Toews Daly, turns 40 this year.  She is named as the granddaughter of the deceased.  In the 1986 opinion the court noted that she could rekindle the relationship with her father as an adult.  I started out my search hoping to find out that she did, and interested in finding out how she looks back on the time when the court, at the urging of her mother and with her consent, stripped her father of the right to be her parent.

I didn't get a definitive answer to that question.  But if she had any hand in writing the death notice for her grandmother, it looks like no reconciliation took place.  If it had, I would think her father would be listed by the legally correct name, Suzanne.  If the deceased, the elder Mary, had accepted her son's transition, I would expect the death notice to refer to her "two children, Suzanne Daly and Patric Sean Daly."  I'm sad it didn't.

Transgender Parents -- Then, Now, and the Future

A trial court concludes it is in the best interests of four daughters to change custody from their mother to their father because their mother was “going through a transsexual change” from female to male.  The mother had changed her name to Mark, and, after the father petitioned for the custody change, Mark married a woman.  Reversing, the appeals court quotes the statutory requirement that “the court shall not consider conduct of a proposed custodian that does not affect his relationship with the child," and finds no adverse impact on the mother’s relationship with the children or on their emotional development.

A trial court terminates the parental rights of a father after he undergoes sex reassignment surgery and becomes a woman.  Affirming, the state supreme court finds that “Suzanne, in a very real sense, has terminated her own parental rights as a father.  It was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.”

Contrary to the recommendation of the guardian ad litem, and in spite of finding that the father was the more nurturing parent, a trial court awards primary custody of two children to their mother rather than their father, who was transitioning to become a woman. The trial court reasons that "[Robbie] has indicated she will be undergoing sexual reassignment surgery sometime in the very near future. [The] surgery may be everything she has hoped for, or it may be disastrous. No one knows what is ahead, and the impact of gender reassignment surgery on the children is unknown."  Affirming, the appeals court finds that the trial court properly “focused on the children's need for ‘environmental and parental stability’."

            The above snapshots are from three cases, one decided in 1973, one in 1986, and one in 2007.  Which case do you imagine goes with which year?  Take a moment and think about that before you keep reading.

The cases are listed in chronological order.  The unequivocal win for the transgender parent – indeed the only unequivocal win for a transgender parent in any reported appellate decision to date – came in Colorado, in 1973, in Christian v. Randall.[1]  The second case is from Nevada in 1986,[2] and the third from Washington in 2007.[3]

These results are surprising only if one assumes that LGBT parents once faced virtually insurmountable barriers to retaining custody of their children after a divorce, and that those barriers have eased, or even disappeared, in recent years.   It’s the mistake of thinking that Lawrence v. Texas is more important to the custody rights of LGBT parents than Roe v. Wade.

Actually, neither of these cases is directly relevant to approval of LGBT parents raising children.  No court has ever decided in favor of LGBT parenting on federal constitutional grounds, including arguments derived from Lawrence.  But the era of Roe v. Wade, decided the same year as Christian v. Randall, was an era of possibility whose dimensions have been largely ignored in the history of LGBT rights.

That era of possibility has a name:  the sexual revolution.

In 1973, “make love, not war” was a universally known slogan, capturing both popular opposition to the war in Vietnam and the cultural changes that made openly conducted sex outside of marriage increasingly widespread and acceptable.  “Open marriages” were documented more with interest than condemnation. The feminist movement championed a woman’s right to control her own body, demanding, among other things, the end to criminal abortion laws that Roe in part accomplished.  That movement also insisted on the equal employment opportunities promised in the 1964 Civil Rights Act and the end to patriarchal marriage, in public laws and private homes.

Roe is only one of the important cases from this era.  The same year, 1973, the Supreme Court found it unconstitutional in USDA v. Moreno to deny food stamps to hippie communes, a widely recognized locus for acting out the sexual revolution; there were four votes that year, in Frontiero v. Richardson, for requiring classifications based on sex to withstand strict scrutiny; the year before the Court had ruled in Eisenstadt v. Baird that single women could not be denied access to birth control.

The movement for gay rights and liberation that grew out of Stonewall in 1969 could take advantage of – as well as contribute to – the greater permissiveness of the sexual revolution.  Its demands also dovetailed with the feminist movement’s demands for both equality and freedom.  Add in the increased availability of no fault divorce, which began in California in 1969, and the times were ripe for lesbians and gay men who had married for conventional respectability to leave those marriages and come out.  Custody disputes commonly ensued.

Many parents did lose custody of their children after coming out, but not all did.  Just as the sexual revolution and feminist calls for change had an impact on Supreme Court Justices, so they affected state trial and appellate judges.  It is in that climate that the Colorado appeals court ruled that being transgender was not sufficient basis to lose custody.

The sexual revolution ended.  The backlash began.  The Equal Rights Amendment failed.  Sex was never declared a suspect classification.  Future Supreme Courts chipped away at Roe.  Demands for equality and freedom were met head on with arguments for morality and “traditional values.” Bowers v. Hardwick was proof of those arguments’ success.  Daly and Bowers were decided in the same year.

In the mid-1990’s, the arguments shifted, relying more on social order than morality.  Opponents claimed life-long heterosexual marriage as the optimal structure within which to raise children and blamed other family forms for all social and economic problems.  Those arguments persist today, continuing to deflect attention from the wealth inequality and racism that bear primary responsibility for poverty, inadequate public education, health disparities, and other blights on our democracy.

In the aggregate, lesbian and gay parents raise children in a more supportive legal and cultural environment than that which existed in previous decades.  But virulent pockets of resistance remain.  For transgender parents, there is overwhelming resistance.  The Magnuson decision, from generally LGBT-friendly Washington state, is an example of that.

            I’m optimistic that outcomes for transgender parents in custody disputes will improve.  But I was optimistic in the mid-1970’s also, imagining that Roe, Eisenstadt, Moreno, and the momentum of the sexual revolution and feminism, all pointed towards ever-increasing freedom and support for lesbian, gay, bisexual, and transgender people, our relationships and our families.  I’m humbler now about my predictions.

This entry is a repost from Balkinization, which posted submissions from all the speakers at the conference held at UCLA last month, Liberty/Equality:  The View from Roe's 40th and Lawrence's 10th Anniversaries. Video of the speakers is available at the William Institute website here.

---

[1] 516 P. 2d 132 (Colo. App. 1973)

[2] Daly v. Daly, 715 P. 2d 56 (Nev. 1986).  For a more recent opinion affirming the termination of a transgender parent’s parental rights, see M.B. v. D.W., 236 S.W.3d 31 (Ky. App. 2007).

[3] Magnuson v. Magnuson, 170 P.3d 65 (Wash. App. 2007).

Does Obama mean all families?

I saw very little press attention to Obama's mention of families in the State of the Union address.  This is what he said:

We’ll work to strengthen families by removing the financial deterrents to marriage for low- income couples and do more to encourage fatherhood, because what makes you a man isn’t the ability to conceive a child, it’s having the courage to raise one. And we want to encourage that. We want to help that. (APPLAUSE) Stronger families. Stronger communities. A stronger America.
 

At first glance it sounds pretty general and benign.  Who could disagree with that?  Well... maybe I do.

Take the first phrase of the first sentence.  As for, "we'll work to strengthen families," I'm all for that.  But the way he wants to strengthen families is "by removing financial deterrents to marriage for low-income couples."  Not by better reentry and job creation programs for those coming out of prison, not by increasing affordable housing, not by mandating paid parenting leave or more broadly defining who can take family leave.  Just by making marriage more finacially attractive to those with low incomes. It's certainly a kinder, gentler way of saying that marriage strengthens families, but it is, nonetheless, saying just that.  For those of you wondering why the Washington Post had so much trouble recognizing Gail Messier's family in her obituary, this speech is a clue. 

Of course I want to strengthen families, the families in which people actually live.  Here is an example.  An employed woman has a child.  Her mom comes to live with her to help care for the child.  Those two people, who have pooled their emotional and economic resources to raise that child, cannot file a joint tax return, even though, with one stay-at-home adult caring for the child they would save money doing so.  Now if they were a married couple with one wage earner, then they could file their taxes jointly.  What we need to do is stop making marriage the dividing line in our laws and policies and start dealing with how people actually arrange their intimate and financial lives.

The other part of Obama's proposal is encouraging fathers to raise their children.  Many children will be better off with their fathers in their lives.  Others won't.  Ask a mother who has been beaten by her child's father and who is trying to fight back against his efforts to have more time with that child because she knows it's about power and control, not love and nurturance.  All the talk about encouraging fathers to raise their children can create another obstacle to a mother's efforts to protect her child.

The worst part of the father-encouragement rhetoric, however, is that it is invariably connected to mother-blaming rhetoric, as in "those single mothers -- they are the problem."  Kudos to Legal Momentum, the organization whose research and policy papers continually prove that there is no inherent connection between births to single mothers and poverty (as they do in this chart).  Higher wages, ending discrimination, more public support for children...these are the policies that work and Legal Momentum fights for them.  Those who push fathers and marriage as the solution tend to oppose all such efforts.  When "fatherhood initiatives" resulted in education and job training programs for fathers only, Legal Momentum's advocacy against sex-discrimination opened those programs to mothers as well.

Back to Obama's speech.  It could have been a lot worse.  The marriage and fatherhood rhetoric was worse under the Bush administration.  But why include it at all?  It is not synonymous with "stronger families," and suggesting that it is sends the wrong message even when it's done gently.

What's wrong with how obituaries define family

When it comes to obituaries, I'm sure there are still many newspapers that refuse to list a deceased's same-sex partner --or different sex unmarried partner for that matter -- as a surviving family member.  But at the Washington Post that changed 15-20 years ago, years into the AIDS epidemic (and too many years at that).  So when Gail Messier died last week -- 51 years old, breast cancer -- her surviving partner Lauren Taylor (who happens to also work part-time at the Post and is one of my oldest friends) had no difficulty being included.

But Lauren wanted all of Gail's close family included, and that meant individuals whom the world describes as ... friends.  Gail was not close to her parents or her siblings.  Her ties were to a few people with whom she had connections that rivaled the closest connections anyone can have to anyone.    Conventional obituary practice does list chosen family -- but only if that chosen family member is a spouse or, maybe, unmarried partner.  (How else but chosen family to describe the person you choose to marry?)  Other than that it is strictly the blood/legal family members that make up legal next of kin -- the people who inherit if a person dies without a will: parents, children, siblings.

Lauren tried to explain this to the Post's obituary writer.  He never did get it. Lauren could not get him to include  the "extensive chosen family" she had listed. So, for the record, here are the names of Gail's family members that Lauren knew were important enough to include: Cheryl Hurwitz (Silver Spring), Jenny Stelloh (Takoma Park), Chris Nichols and Dianne Russell (Mt. Rainier), and nieces Eliana Hurwitz and Kaisa and Lydia Nichols-Russell.  My sincerest condolences to all of them on their loss.

In researching to write this blog post, I discovered that the obituary form provided by the Washington Post calls for names of present and former "spouses," then asks for the names and residences of "survivors," considered "spouses, children, siblings, and parents."  It also asks for the number of grandchildren.  Since the Post is willing to include a partner, I find it curious and troubling that the form it provides does not say that.  Apparently, you have to be a bit of an envelope-pusher to get the Post to do what it has been willing to do for the last two decades.  In other words, if you are a surviving same-sex partner there is no place on the form to indicate that so it can be listed.  You have to affirmatively ask to be listed, something not every surviving partner will know is possible.

We hear it said often that obituaries are news stories.  The information in them must meet the journalistic criteria for accuracy.  But a legalistic definition of "survivors" is not an accurate definition of either those who have suffered the greatest loss or those who compose the web of people with whom the deceased lived her life.

The Post obituary writer told Lauren he didn't understand what chosen family meant.  She told him that in a few years he would.  I hope she's right.  I have to wonder, however, if once again the visibility of the struggle for same-sex marriage actually deters people from defining family the way it is lived by so many people.  When obituaries do not include same-sex partners it could look to some like a problem to be solved by allowing same-sex couples to marry.  Like so many policies I write about in these pages, however,  the problem is an incomplete, inaccurate definition of family.  I don't know what it will take to get the Washington Post obituary writers to see it thay way.

A memorial service to honor Gail Messier's life will be held in March.  Her chosen family will be there.  In fact it was their convenience that determined the date, because they are her primary mourners and they need each other to get through this difficult time.  Come to think of it, the Post should send a reporter.  It might help the paper learn something about family that is so clearly lacking in its obituary criteria.