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.

4 comments:

Vicki Ferrara said...

Nancy, thank you for this great post! It really makes me think that in every case I take, I have to know what I am doing or ask colleagues for advice. That is why I really feel grateful to be part of FLI and to have lawyers and professors like you writing and emailing to help us out. Not to mention that Judges and Courts often fail the individuals coming before them. Thanks again.

Kimberly Mae Surratt said...

I just had a consult with a client yesterday that had gone to another attorney for his first consult. That attorney told him that in Nevada, even with a domestic partnership, that it wasn't going to be treated as a marriage so he shouldn't get his hopes up. Contrary to the law in all ways! However, the saving grace for this attorney was that he told the client he really didn't know what he was doing when it came to a same sex break up and told him that he must go see me to get the real scope. I also believe there is a lot more of this going on and that it is increasing daily. Client's be ware!

acgushurst said...

Nancy, great blog. These cases are just heart breaking all around. The idea that a "legal parental status" can trump the relationship of parent and child chills me to the bone.

Donna Hunch said...

Unfortunately, Wisconsin law pretty clearly puts Bowden in the "third party" category. In Wendy M. v. Helen A.K., 2010 WI App 90, Wendy and Helen were in a same-sex relationship for years. They raised two daughters from Guatemala. Wendy was the adoptive parent. When the relationship ended, Helen filed for guardianship. She argued that she was not a "third party" but a de facto mother and thus WI legal standard requiring a finding of parental unfitness applicable to all custody and guardianship disputes between parents and third parties did not apply to her (Barstad v. Frazier, 118 Wis. 2d 549). The court ruled against her--she was not a mother but a third party under the WI statutory scheme and common law.