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.