Be Careful What You Wish For...

The Ettelbrick Project for LGBTQ Family Recognition (named for Paula Ettelbrick), a part of the Stonewall Community Foundation, is sponsoring a program in San Francisco next Wednesday, August 8, entitled, "Be Careful What You Wish For: Making Marriage Victories for Same-Sex Couples a Win-Win for All Families."  The program is fully described here, with logistical information as well.

The program will focus in part on the loss of domestic partner benefits once same-sex couples win the right to marry, and the reasons to oppose such results.  I wrote recently about this phenomenon in Weschester County, New York.

We are seriously in danger of losing protections for a range of families.  In other words, we face the prospect of making marriage mandatory.  In the words of the description of the program, "you get married or you get nothing."

I urge everyone in the San Francisco area to attend.  A similar program was held in New York in June.  For more information about the project, contact its director, Terry Boggis, at terry.boggis@stonewallfoundation.org

Miller-Jenkins update...and musings on going underground to avoid court-ordered visitation

Today's New York Times brings another story about the longrunning conflict over the custody of Isabella Miller-Jenkins, something I have covered extensively in numerous blog posts.  Lisa Miller remains in Nicaragua with Isabella, now 10, having fled there with the help of various fundamentalists to avoid allowing Isabella's other mom, Janet Jenkins, to exercise court-ordered visitation with the child.  From Lisa's perspective as an evangelical Christian, she is doing God's will.  One of her lawyers is quoted in the article as blaming a "misguided legal system" and saying that the court "overstepped its bounds" turning the child over to a person who "lives contrary to biblical truths."

Lisa Miller's actions were (and are) wrong, but I don't want to associate myself with a view point that a parent should never disobey a court order for visitation or custody.  As a lawyer, I could not advise a client to disregard such an order, but as a feminist I cannot forget about the numerous children sexually abused by their fathers yet ordered to visit them.  Probably the most famous example of a mother who defied such an order is Elizabeth Morgan, whose parents fled to New Zealand with their granddaughter, Hillary, to avoid turning her over for unsupervised visits with her father, Eric Foretich.  Elizabeth Morgan spent more than two years in jail in the 1980's for her role in refusing to obey the court order for visitation.  The District of Columbia judge who presided over the trial found the conflicting evidence of abuse "in equipoise."  In other words, he found Morgan could not prove it was more likely than not that the abuse occurred, even though there was plenty of evidence that it did.  There has been an underground railroad of sorts for at least three decades, as women have fled with their children to avoid such court orders.

But here is why I make a distinction between such mothers and Lisa Miller.  When a mother believes her child is a victim of abuse, but a court does not believe her and orders unsupervised visitation, there is a dispute over the facts. In that context, I fear that judges are loathe to believe a father would commit a sexual assualt on his own child.  That leads them to disregard or underweigh evidence.  I remember once when I was in private practice in the late 70's advising a woman whose husband masturbated with their two year old daughter in bed with him.  He never touched the child.  I cringed at the knowledge that the mother would have a hard time proving such an allegation in court.  A judge might even believe she was lying to get an advantage in a custody fight and therefore award custody to the father.  I understand the instinct to protect a child from abuse even if it means going underground, even though I would not participate in such a scheme or advise a mother to do it. When I read about such instances (which still occur) I cut the mother a little slack in my mind because I do not trust all judges to get the facts rights.

But in the Miller-Jenkins case there is no factual dispute.  We aren't dealing with a judge whose assessment of the evidence might be skewed by a resolute unwillingness to believe such things as sexual assault happen between a father and child.  We're dealing with a judge who made a reasonable visitation order for a noncustodial parent which was flaunted by the custodial parent only because she did not want her child around a lesbian.  Lisa Miller clearly believes she made a mistake forming a family with Janet Jenkins, but lots of mothers regret the partners they had children with.  That history cannot be rewritten, however.  Noncustodial parents gets visitation rights, even when there is profound religious disagreement between them -- something that is not at all uncommon as any student of family law knows.  Lisa and the evangelicals supporting her don't believe Janet is a parent, but parentage is determined as a legal matter.  And the court got it right when it ruled that the couple's joint decision to have a child through donor insemination, and all the other factors, made them both parents.

It's really that legal ruling that Lisa and her supporters disagree with.  And for that I cut them no slack. "Biblical truths" (themselves, of course, open to interpretation as the religious leaders who support lesbian and gay families have demonstrated) don't determine legal parentage.  And we would have a very different country if no parent who lived contrary to "biblical truths," as determined by evangelical Christians, could visit with his or her child.

To be clear, had Janet Jenkins lost I would have also counseled her against kidnapping her child.  To my knowledge there has never been a lawyer for a nonbio mom who has advised such a course of action.  It may be a tragedy for a child to lose a parent in such a way, but the answer is changing the law.  The casualities along the way are sad, but still unfortunately unavoidable.  And when the child turns 18, there is always the possibility of trying to resume the parent-child relationship severed by court order.

I feel sorry for Isabella, whose life in Nicaragua does not sound happy.  And I am furious at Lisa Miller, who put Isabella in this situation.  Lisa didn't act in Isabella's best interests.  Elizabeth Morgan's daughter, now 26 and a singer who goes by the name Elena Mitrano, thinks her mother did the right thing. She spoke up about her life in this 2009 article.  Someday Isabella will have her say as well.

Center for Economic and Policy Research publishes extensive critique of blaming single mothers

In response to the front page Sunday NYT piece I critiqued last week, the Center for Economic and Policy Research has published a multi-part analysis of what's wrong with blaming single mothers for income equality.  CEPR's title for the numerous postings by Shawn Fremstad says it all -- Family Structure is Overrated as an Explanation of Inequality. 

Part One criticizes how author Jason DeParle presented the data of respected sociologist Bruce Western in the NYT piece; turns out income insecurity bares more responsibility for inequality than family structure.  Part Two examines the role of gender inequality and poor compensation of child care workers and other paid caregivers.  Part Three refers to the NYT piece as "DeParle's Marriage Plot" and shows how the article overstates the significance of the decision not to marry; all mothers, not just married mothers, are having children at a later age, and married mothers as well as never married mothers have multi-partner fertility because they divorce and remarry.  Part Four reviews evidence that income inequality is a cause, rather than a result, of changes in family structure.  Part Five looks at the claim that children of single mothers have a harder time than children of married mothers moving up on the income scale; Fremstad points to data suggesting this is minimally true if at all, and that children born to unmarried mothers have an easier time climbing the income ladder than those whose mothers are married and then divorce.  (Given the problems associated with high conflict marriages, he also notes that telling women to stay married is not the answer.)

Given that the last post was yesterday, there might be a Part Six and beyond.  I would welcome that.  CEPR is a leading source of analysis about economic issues, including ending poverty and inequality.  I find I can turn to them for real answers when the right-wing pundits (and unfortunately some mainstream media folks like this NYT piece) are trying to distract the public from the policies that would lead to greater economic justice.

Georgia appeals court upholds a second-parent adoption on narrow grounds and expresses doubt about whether such adoptions are allowed in Georgia

It's another lesbian-behaving-badly case, this one entitled Bates v. Bates.  In 2007, a lesbian couple, Nicole and Tina Bates, successfully petitioned a Georgia trial court for a second-parent adoption that made Tina a legal parent of the child Nicole gave birth to after conception through donor insemination.  Three years later, after the couple split up, Nicole went back to the same court and asked for the adoption to be set aside.  (Even after all these years, and everything I know, I cannot write this last sentence without screaming inside.)  The court denied the motion, finding that Georgia law did not allow an adoption to be challenged after six months.  Nicole unsuccesfully petitioned to appeal that order.


Meanwhile, Tina had filed for custody in a different county.  After Nicole lost her initial attempt to void the adoption, she moved to dismiss Tina's custody action by arguing, again, that the adoption decree was not valid.  The judge granted Nicole's motion to dismiss and so threw out Tina's custody petition.  The trial judge found that Georgia does not allow second-parent adoption.  It also ruled that it could not adjudicate custody of the child because the Georgia Constitution prohibits courts from ruling on the "respective rights arising as a result of or in connection with [a relationship between persons of the same sex]."

Tina appealed, and in the Bates decision issued two weeks ago, the Court of Appeals of Georgia, Third Division, ruled in her favor.  But it did so on the narrow ground that Nicole had had her shot at claiming the adoption void and had lost.  Having lost once, she could not relitigate the same issue in a different court. (This legal doctrine goes by the Latin term res judicata.)  In the process of ruling for Tina, however, the court expressed skepticism about whether Georgia does, in fact, allow second-parent adoption.  It suggested Nicole's argument had "merit," and called the practice of second-parent adoption in Georgia "doubtful."   The court therefore sent Tina's custody petition back to the trial court.  The court noted that adjudicating the custody of the child arises out of the adoption decree and not the relationship between Tina and Nicole and therefore does not run afoul of the state constitution. There is no indication in the opinion about when Tina last saw her child.

In the opinion's final footnote, the court noted that "some" of the judges (there were only three on the panel) thought it might be appropriate to estop Nicole from challenging the very decree she previously sought to obtain.  "In the original...petition for adoption," the footnote reads, "Nicole not only affirmatively invoked the jurisdiction of the...court, but her own lawyer prepared the decree she now contends is void.  To some of us, it seems that the present attack upon the validity of that decree amounts to an attempt to play the courts for fools, and that is the sort of thing that judges ought not tolerate."  Nevertheless, because res judicata was a sufficient ground, the court did not need to rule on that alternate ground.  Unfortunately, a 2010 North Carolina ruling showed no such restraint, and did allow a bio mom to challenge -- successfully -- the very adoption decree she had participated in obtaining.

The court's questioning of the validity of second-parent adoption could unfortunately impact the trial judges who have been granting such adoptions.  On the other hand, when Nicole asked the Georgia Supreme Court to review the denial of her motion to set aside the adoption it did not do so.  I don't know what to read into that denial.  I do hope that the judges who believe that Georgia law does allow such adoptions hold their ground until, and unless, a higher court tells them directly that they are wrong.

Sunday New York Times announces a "commitment ceremony"

I am not a regular Sunday NY Times reader. And when I do read it, it's usually a handful of sections, not including "Sunday Styles."  But last Sunday I was on a cross country flight and spent more time than usual perusing the paper.  I am periodically curious about the number of same-sex wedding announcements, so late in the flight I turned to that section of the paper.

First I marveled, again, at the old-fashioned convention of the contents of these announcements, and the sheer class bias in them.  Every person a college graduate, with parents of various distinction. But I read on, including the three gay male couples whose announcements were, for better and/or for worse, indistinguishable from the others.

But then...a deviation so momentous I had to read and reread it to believe my eyes.  Emily Brouwer and Anna Le Mon, complete with smiling faces, "affirmed their partnership in a commitment ceremony ceremony" in San Francisco, in a service led by a friend.  Wow and double wow!  The other NYT conventions were complied with precisely.  College degrees. Jobs. Parents.  I don't know when "commitment ceremonies" began gracing the NY Times Sunday announcements, so this may be old news to some.  But to me it was actually a way I could see myself on this very page, something I have never imagined.

I have never wanted to take commitment out of marriage...only the law and the name.  A public affirmation of commitment is just the sort of statement I admire, a way or drawing together family and friends to celebrate love.

If anyone knows when the Times included the first of these, I'd love to know.

This Forbes column gets it right

On the tail of my blog post yesterday, this terrific column appears on forbes.com today, filled with approaches to child poverty that do not depend on marriage and highlighting what an outlier the United States is in its social and economic policies.

Why children have unequal chances

For going on two decades there has been a steady stream of articles blaming nonmarital birth for the inequality among children...and all other social problems.  But there seem to be even more recently.  Then comes a front page story in this week's Sunday New York Times, describing the lives of two sets of children whose moms work together.  Jessica has three children, one with Asperger syndrome, and no husband.  She earns $24,500 as an assistant director of a child care center.  Her boss, Chris, has two children and a husband.  Chris and her husband earn together three times what Jessica earns.  So of course their children have more enrichment activities.  And of course they have more available parental time.

From this, and the many cited researchers, the article concludes, as its subtitle put it, "Marriage, for Richer; Single Motherhood, for Poorer."  "Two Classes," reads the headline, "Divided by "I Do."  Of course the reader will draw the conclusion that marriage before children -- and staying married -- is the solution to the unequal chances children face.

I cannot agree, and there's another way to tell the story of Chris's and Jessica's children, some of which is buried in the piece itself.  Take one study the article reports.  Scott Winship studied 2400 young adults and found that 58% of those in the lowest third of income who as teenagers lived with two parents moved up on their income level, while 44% of those with only one parent did.  Also,  15% of those who started out in the top third income level fell to the bottom third, while 27% of teenagers without both parents did.

But Winship qualifies his own data, something the article does report.  In fact, he interprets his data "cautiously."  He warns that race, education, and parenting styles might separate the two groups.  And that the families of women tied by marriage to "troubled men" might be hurt by marriage.

There is no question that there is a correlation between marriage and the well being of children.  Lots of research shows that.  But that is a far cry from naming having children outside marriage the cause of the problem, and getting married before having children the solution.  There is also a well documented correlation between higher income and the well being of children.  If we start by naming poverty the problem, we create a different trajectory of changes.  But they are changes that implicate the social and economic policies responsible for income and wealth inequality.  Blaming marriage or the lack thereof is a distraction, and one that is welcome by those who benefit from the status quo.

The story of Chris and Jessica and their children could have been told in other ways.  And could have been told with a third family, a couple in a miserable marriage, with an uninvolved, unemployed, alcoholic, and/or violent father.  Believe me, then it wouldn't look like marriage was the solution.

As for the other ways of telling the story, consider the comment Tim Casey of Legal Momentum included when he sent a link to the article out to an anti-poverty listserve. "Note the lack of discussion," he wrote, "of the policies that in other wealthy countries ameliorate the economic insecurity that is so common for US single mother families -- free or subsidized child care, paid parental leave, an adequate welfare system, childrens' allowances, assured child support, etc."  The child poverty rates is much lower in other Western countries than in the US precisely because of such policies. Public responsibility for all children -- who are the future we all depend on -- is in my mind the mark of a civilized nation.  We are barbarians in that respect.  The New York Times should include that point of view the next time it writes about the unequal chances of children.  

Advocates of same-sex marriage, and the experts who support them, have done a good job of debunking the idea that children need to be raised by their married biological parents.  Their research and conclusions were nowhere in the NY Times article.  Gay rights advocates do not necessarily want to be connected to Jessica and her children.  That, in my mind, is a failure of vision. Marriage isn't the one answer to child inequality for children with straight or gay parents.