OHIO'S PAID SICK LEAVE CAMPAIGN LEAVES OUT LGBT FAMILIES

The nationwide campaign for paid sick leave is growing. And that’s a good thing. About half of all workers don’t have any paid sick leave, and those in the lowest paid jobs are least likely to have it. The campaign provides an opportunity for the gay rights movement that it has yet to seize. It also provides an opportunity for labor organizers to acknowledge the existence of LGBT families and protect them…even in states with anti-gay marriage constitutional amendments.

Paid sick leave laws typically allow the worker to use his or her leave to care for sick family members. So of course the law must define who those people are. As readers of my book know, the definition I favor is the one that all federal government employees have; they can take leave to care for anyone with whom they have a “close association” that is the “equivalent of a family relationship.” That’s the standard in the proposed federal Healthy Families Act. I tried to get the District of Columbia to adopt this definition last year without success, but we do include couples who live in a committed relationship for more than a year. The bill pending now in Illinois includes anyone the employee has lived with for more than six months.

So I was saddened and outraged to learn last week about what’s going on in Ohio. After failing to get paid sick leave through the Ohio legislature, organizers have proposed a ballot initiative. If they get enough signatures by next month, Ohioans will vote in November on whether their state will mandate paid sick leave. So far, so good, but then I read the definition of who a worker can take leave to care for; it's limited to spouse, parent, and child and so excludes unmarried couples and household members who aren’t spouse, parent, or child. Given that Ohio has a constitutional amendment saying the state will not recognize same-sex marriage, that means it excludes all same-sex couples!

The Ohio campaign claims it is building support for the federal Healthy Families Act, so why reject the recognition of all families in the federal bill? Even if the Ohio initiative included only the definition in the Illinois bill, it would cover couples who had lived together for six months without singling out unmarried couples. Therefore it would not run afoul of Ohio's constitutional amendment but would protect LGBT couples who live together.

So not only does the Ohio initiative fail to grasp the truly expansive definition in the proposed federal Healthy Families Act, it even ignores the needs of gay and lesbian couples. With all the attention on gay marriage over the past several years, I would think Ohio organizers would have the needs of gay and lesbian workers in mind when writing a bill. Apparently not.

But I also fault the gay rights movement. Where is it in the fight for paid sick leave? Where is it in seeing the value of coalition work that meets the needs of more than just gay people? Type “paid sick leave” into the search engine on the website of Out and Equal Workplace Advocates, and you get…nothing. Where is Equality Ohio, other than missing from the long list of endorsers of the Ohio Paid Sick Leave Initiative? And who can blame them for that, given that the initiative omits LGBT families? But if they had been there at the beginning, at the drafting of the initiative, surely they could have had influence.

The website for Ohioans for Healthy Families says “it’s time for Ohio to value ALL families.” Hey – valuing all families is MY agenda…it’s the name of my book! It’s the definition in the federal Healthy Families Act that does that, not the one in Ohio. Claiming their initiative values all families when it doesn’t means either that they don’t know LGBT families exist or they don’t care. Either way, shame on them.

As for gay rights advocates, don’t wait another minute. Find out if your state has a paid sick leave bill in the works, and make sure it has the most inclusive definition of family possible…like the one federal workers enjoy today.

OHIO PAID SICK LEAVE CONTINUED

I posted a couple of weeks ago about the narrow definition of family member in the Ohio Paid Sick Days initiative. Since then, I've spoken with the initiative's campaign manager, Brian Dunn, and looked into the role of Equality Ohio and other gay rights groups.

What I have to report is both sad and infuriating.

Ohio has a Defense of Marriage Act (DOMA) that bars marriage and recognition of marriage for same-sex couples but also says the state “shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.” Perhaps Ohio could not mandate paid sick leave that employees could use to care for a sick unmarried partner. That doesn't really create a "legal status," but someone could argue that it does.

But, as my earlier post pointed out, there are at least two good alternative options: include anyone who is a member of the employee's household or include the definition that federal workers now have -- anyone related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The latter definition is in Senator's Kennedy's Healthy Families Act.

Brian Dunn told me that Ohioans for Healthy Families, a coalition spearheaded by SIEU, consulted with their lawyers and was told that a more inclusive definition would not be possible given the state DOMA. This is just dead wrong. Workers have households containing a variety of individuals; allowing a worker to balance work and family responsibilities by using sick leave to care for a sick household member would not be "recognizing a legal status" between the worker and the sick household member that "approximated marriage."

Sure, one of the right-wing groups that pushed for the Ohio DOMA might challenge the law. They would lose. Last year the Ohio Supreme Court ruled, 6-1, that the state could prosecute a man for violence against a woman he lived with "as a spouse" without running afoual of the state DOMA. In the lead-up to the case, one of the strongest proponents of Ohio's DOMA said it would not violate DOMA to make domestic violence against any household member a crime.

So now we know where Ohioans for Healthy Families was coming from. I blame both bad legal advice and what I imagine to be an inability to tolerate even the slightest chance that a right-wing maniac would challenge the law. Proponents of the initiative decided it was better to sacrifice the variety of households, including those in which many same-sex couples live. I repeat what I said in my earlier post. Shame on them.

Now as for the gay rights groups, they were not asleep at the wheel. The gay community knew the campaign excluded them, and Equality Ohio voted to oppose the measure. I have since heard that Equality Ohio voted to remain neutral on the initiative, but I have been unable to confirm this. The Human Rights Campaign was involved as well, and dealt directly with SIEU. They did supply language such as the definition in the Healthy Families Act. The initiative's sponsors were unmoved.

So this leads up to the obvious question...support the initiative or not? It's a painful choice. Is there a way to vote for this initiative but send a loud and clear message to SIEU and to all the state level groups working on paid sick leave that what they did was unacceptable and unnecessary and should not be repeated elsewhere? Is there a way to vote for this initiative, which goes by the name "The Healthy Families Act," while not diluting or compromising on the provision of the federal "Healthy Families Act" that includes the much broader definition?

If I lived in Ohio, I know I wouldn't just vote against this initiative. That wouldn't make my voice heard in other states and across the country. But would I vote for it, knowing this history? Well, I'd like to hear what Ohioans have to say about this...

Ohio Supreme Court rules against nonbio mom

Over the scathing dissent of a single judge, the Ohio Supreme Court this week ruled that a bio mom, Kelly Mullen, revoked her co-parenting agreement with her ex-partner Michele Hobbs,and that therefore Hobbs could not obtain a hearing on whether she should have joint custody of her now six year old daughter, Lucy. I wrote about the oral argument in the case here.

Ohio does allow a nonbio parent to obtain custody. The legal test is whether the "parent, by her conduct with a nonparent [sic], entered into an agreement through which the parent permanently relinquished sole custody of the parent's child in favor of shared custody with the nonparent." Although Mullen and Hobbs had numerous documents in which Mullen said that she considered Hobbs her child's "co-parent in every way," the court held that the documents were revocable and that Mullen revoked them.

The court reiterated the rule that no written agreement was required to meet the test, yet every nonbio mom in Ohio can count on retaining her status only if she in fact has a written agreement and it contains some magic words that the bio mom is permanently relinquishing sole custody. I say this because the documents in this case appear to do just that but did not have such magic words and somehow the court found them revocable.

The court did not rely on the status of the semen donor in reaching its result, but it did note some things about the semen donor that are worth mentioning because they are atypical (although by no means unheard of). There was a donor agreement between Mullen and the donor, Scott Liming, who was a friend of Hobbs. Hobbs was not a party to the agreement (note to Ohio nonbio moms: be a party to any written donor agreement!). The agreement said Liming's name would be on the birth certificate but that he would have no parental rights and so would have no custody rights and no obligation to pay child support (note to all in Ohio: it was not an issue here, but if everyone agrees the donor is not a parent, keep his name off the birth certificate!). During the litigation, Mullen and Liming revoked their donor agreement. In my earlier post, I wrote about Liming's support for getting rid of Hobbs as a parent. By the way, there was as separate ceremonial birth certificate listing Hobbs and Mullen as Lucy's parents, which the court disregarded along with all the other written documents indicating Hobbs's parental status.

The Ohio Supreme Court repeatedly commented upon Mullen's refusal to sign a shared custody agreement with Hobbs. But, as the dissent points out, the issue of signing such an agreement arose AFTER the relationship between the couple started to fail. Mullen did sign numerous documents before the child was born, and did create a two parent family, and did have the child call Hobbs "Momma," and did go to a lawyer who drew up all those documents precisely to protect Hobbs's relationship with the child. To the fact that the documents referred to Hobbs as a "co-parent," the court said that term was "not synonymous with an agreement to permanently relinquish sole custody in favor of shared legal parenting." The court continued: "'Coparenting' can have many different meanings and can refer to many different arrangements and degrees of permanency."

As I wrote those last words I found myself in pain and furious. It is completely clear what this couple did. They planned for a child together. They had a child and raised her as two moms for more than two years. They wrote documents to protect Hobbs's relationship as the child's parent. The lawyer who wrote those documents testified that he wrote the documents "to protect the rights of the co-parent to be a full co-parent." When they split up, Mullen made an argument that the court bought that removed Hobbs from Lucy's life. "Coparent" may mean different things in different circumstances, but in this case its meaning was clear and the court disregarded it.

I do find myself wondering if the presence of a "father" for the child influenced some on the court. As I wrote about here, Mullen and Liming gave a tv interview in which they said they really wanted Lucy to have one mom and one dad so she would not be confused. Add to that the fact that the Alliance Defense Fund and Liberty Counsel both supported Mullen's position, and you can see this erasure of Hobbs for the rewriting of history that it is.

In some states, a nonbio mom can't even get her foot in the door. (That's you, New York, unless the nonbio mom was married to or in a civil union with the bio mom, or adopted the child). Ohio does let a nonbio mom in the door, but this case suggests that what she has to prove will make it much harder than it should be to protect the child's parental relationships.

The dissent ends with the following: "Mullen taught her daughter to call another woman "Momma" and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough. It shouldn't be." Lots of parents wish they had not had children with a former spouse/partner. That's a common feeling when the couple's relationship deteriorates and one parent wishes she could raise the child without ever interacting with the other parent. But creating a child together has consequences, and it does tie parents to each other long after their relationship fails. That's the rule for different-sex couples and it should be the same rule for same-sex couples. I'm sorry the Ohio Supreme Court disagrees.

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell's petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court's order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell's attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child's life and who has teamed up with the bio mom can negate a nonbio mom's claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn't get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child's second mother by the sheer passage of time.

Trial court gives decisive win to nonbio mom in long-running Ohio dispute

In a 41-page opinion, an Ohio Magistrate has awarded shared legal and physical custody of 8-year-old Maddie Smith to her biological mother, Julie Smith (Smith) and her nonbiological mother, Julie Rowell (Rowell).  This is the latest stage of the long-running Rowell v. Smith dispute I have written about before.  The case has been going on since October 2008, when Rowell and Smith separated and Smith denied Rowell all access to their daughter.

Magistrate Kathleen Knisely devoted most of the 41 pages to factual findings after extensive testimony.  She noted that almost all the facts were disputed.  Smith claimed that Rowell was not involved in planning for the child and had no parental responsibility for her and that she and Rowell were not even life partners.  Rowell presented them as a couple that was equally involved in planning for and raising the child.  The magistrate found that "Smith's testimony, and that of her supporting witnesses, are not credible or supported by any of the ascertainable objective facts and witnesses."  Smith's witnesses for the most part appeared uninformed or misinformed about Rowell's relationship with Maddie.  For example, "each and every one" was surprised to learn that Smith had filled out forms listing Rowell as a parent or co-parent and listing Rowell's parents as grandparents.

Rowell's lawyers, Lee Ann Massucci and Carol Fey, presented overwhelming, detailed evidence about Rowell's involvement in planning for a child, in the pre-natal care and birth, and in making the decisions about Maddie's care for the first five years of her life.  A school administrator testified that the couple presented as equal parents and that the school dealt with them in that way.  Photographs, videos, and such things as mother's day cards and gifts all supported Rowell's version of their family.

The couple had no written agreement nor any wills or other legal documents.  Smith said she never intended to share parental rights with Rowell, never considered her part of her family.  Magistrate Knisely found that "Smith's actions belie her adamant position" and that the failure of both women to prepare important documents was something many individuals did.

The magistrate concluded that Smith "contractually relinquished shared custody of Maddie to Rowell" and that she "acceded to and actively fostered the formation, establishment and growth of a parental relationship between Rowell and Maddie."  Rowell, the magistrate found, "assumed the obligations of parenthood by taking signifcant, equal, responsibility for Maddie's care, education and development as well as contributing financially to Maddie's support without any expectation of financial compensation...Rowell has acted in this parental role for an extended period of time and has a fully developed, bonded parental relationship with Maddie."

The evidence showed that Smith repeatedly violated both the letter and the spirit of temporary visitation orders.  For example, when Rowell was to have Maddie after school at 5 pm, Smith informed the school not to allow Rowell inside the building and arrived at the school herself to walk Maddie out the door, where the child would run to Rowell and leap into her arms.  Smith had twice been found in contempt of court and given three day suspended jail sentences for her noncompliance with visitation orders.  Smith argued that Maddie was afraid of Rowell, but the magistrate found no evidence to support that and furthermore found that it was Smith's actions that caused anxiety for Maddie.

When the magistrate noted that Smith was unlikely to comply with court orders I actually expected her to switch physical custody to Rowell.  She didn't.  She awarded full shared physical custody, on a schedule for each of two full days every week plus three weekend days every other weekend.  Although the couple has shared legal custody, the court gave Smith the right to make final decisions about health care, religion, education, and extracurricular activities.  The order requires consultation with Rowell, something that seems more aspirational than realistic given the history and the magistrate's own findings.

Here are some of my own thoughts about this case.  Rowell is lucky that Maddie continued to feel connected to her and showed happiness (captured on video) at being with her throughout most of the last three years.  When a bio mom succeeds in alienating a child from a nonbio mom, a trial court can feel justified in limiting or even terminating contact.  Given Smith's hostility, I am very skeptical about whether joint physical custody will work.  In fact the research on joint custody after heterosexual divorce shows it is never a good choice in high conflict cases, and Smith turned this into a high confict case.  I know that Maddie has lived with Smith for the three years since the separation, so disrupting that should not be done lightly.  But I can't help but wonder what the court would have done had this been an equally contentious dispute between a formerly married heterosexual couple.  I think it more likely that custody would be switched to Rowell, who could be counted on to allow contact between Maddie and Smith.

Don't get me wrong.  This case counts as a victory for a nonbio mom.  But for all the magistrate's findings about Smith's interference with Maddie's relationship with Rowell, she ultimately gave Smith greater parental authority.

Lurking in the case appears to be a possible move by Smith to be with her new partner, who relocated from Ohio to Boston.  (Smith began this new relationship while she was still living with Rowell).  The order requires either party to notify the court if she intends to move.  This may then lead to a court hearing on whether to modify the time schedule.  Obviously, a move will be the end of shared physical custody.  Perhaps Smith will be concerned about the possibility of switching physical custody to Rowell and will stay in Ohio.  But the fact that the magistrate already gave her greater legal authority may instead embolden her to push the envelope by relocating.  At least we can be confident that Massachusetts will recognize the status granted Rowell by the Ohio court.

Under Ohio law, a husband who consents to his wife's insemination with donor semen is the legal father of the child born of the insemination, when the insemination takes place under medical supervision.  Ohio law is fairly typical of older "artificial insemination" statutes.  Under the newer statutes in DC, New Mexico, and Washington, parentage extends without regard to the gender or marital status of the birth mother's consenting partner.  Rowell and Smith went to the doctor's office together, and Rowell pressed the syringe plunger for the insemination.  Had a gender and marital status-neutral law been in effect, the couple would have been presented with a consent form, and they would have signed it.  That by itself should settle the question of parentage, with no need for the many years of litigation this case represents.

Meanwhile, this opinion is almost certainly not the last word.  Ohio has two levels of appeals courts, and Smith seems likely to keep fighting in spite of the unassailable factual findings of the magistrate.

Ohio court finds bio mom cannot block nonbio mom's custody action by allowing her subsequent husband to adopt the child

After bio mom, J.L.G., and nobio mom, M.L.G., split up, J. married a man and the couple completed a stepparent adoption of M.E.G., the child born to J.  An Ohio judge held last week, in In re M.E.G., that the adoption did not divest the court of the ability to hear the nonbio mom's petition for custodial rights to the child.  The stepparent adoption took place after a nine day trial over a six week period in the fall of 2010, after which a Magistrate ruled that the bio mom had, through her actions, ceded part of her custodial rights to the nonbio mom.  The adoption was finalized in January 2011, and the next month the bio mom tried to use that as a basis to dismiss nonbio mom's custody action.

Ohio does not permit second parent adoption, but it does have a doctrine whereby a nonbio mom can retain some rights to the child after the couple splits up if the court finds the bio mom relinquished partial custody rights to her ex-partner.  In this case, the Magistrate found that she did, and the judge reviewing that ruling agreed.  The bio mom relied on last year's dreadful In re Mullen decision from the Ohio Supreme Court (which I wrote about here), claiming that the lack of a written co-custody agreement defeated her ex-partner's claim.  The judge cited language from that opinion, however, to the effect that, while such a writing would be the best way to safeguard each party's rights, a written agreement is not a requirement.

The court's opinion cites what by now is a familiar litany of co-parenting decisions.  The couple planned for and jointly paid for the donor insemination conception and birth of the child, and the nonbio mom fully participated in the pre-natal care and birth; the child's name derived from that of the nonbio mom, and the child called her "mommy;" the couple shared all parenting for more than five years and chose caregivers and school together; the couple held themselves out as a family; the nonbio mom was listed as a parent on school forms, even after the couple separated. The nonbio mom also changed her last name to that of the bio mom so that she and the child would have the same last name. The bio mom testfied that she never intended to relinquish her custodial rights, but the court found that the "overwhelming" evidence demonstrated otherwise.  The reviewing judge also agreed with the Magistrate's decision that the finding was in the child's best interests, and noted that the bio mom had already been found in contempt of court for her refusal to honor temporary court orders.

It remains a source of fury to me that I have to count this case in the "win" category because the bio mom did not succeed in completely removing the nonbio mom from their child's life.  But the court did make clear that the nonbio mom did not have the right to block bio mom's husband from adopting the child because she was not the child's parent.  Except she is her daughter's parent.  And she would be her legal parent in Washington, New Mexico, Oregon, and Washington DC based on her participation in the child's conception, and in California, Colorado and Delaware based on functioning as a parent, otherwise known as "holding the child out" as her child. I look at that list of states and it looks so short, and leaves so many parent-child relationships unprotected.

Ohio Supreme Court reinstates nonbio mom visitation

The Ohio Supreme Court today stayed the order of an appeals court that halted visitation between nonbio mom, Julie Rowell, and the child she raised with her former partner, Julie Smith. I wrote about the appeals court ruling here last month. Today's order, signed by Ohio Chief Justice Maureen O'Connor, explicitly reinstates the visitation ordered by the trial judge who heard the case.

The issue in the appeal is whether a trial judge has the authority to order temporary visitation during the time it takes for a nonbio mom's custody petition to go to trial. Without such an order, the child's relationship with the nonbio mom is completely disrupted for the months -- or longer -- it can take for the case to be resolved. Lack of contact over that period of time is bound to have an impact on the child and could affect the judge's final decision about what custody arrangement is in the child's best interest.

I hope this stay is an indication that the Ohio Supreme Court knows the appeals court was way off base.

Ohio Supreme Court hears argument in claim by nonbio mom

Last year about this time I wrote about three cases in which a bio mom was teaming up with the sperm donor to force a nonbio mom out of a child's life. One of those cases, In re L.K.M., was argued yesterday before the Ohio Supreme Court. Lambda Legal represents Michelle Hobbs, and Lambda Senior Staff Attorney Christopher Clark did a terrific job on her behalf. You don't have to take my word for it; you can watch the oral argument here. You can also read all the briefs filed in the case here, something that is rare in state appeals courts. (And so this is where you can see that this case involves yet another bio mom who accepted help from the virulently anti-gay Alliance Defense Fund and Liberty Counsel, each of whom filed a separate friend of court brief on her behalf.)

The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.

Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).

Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.

Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.

Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.

When a semen donor teams up with a bio mom...

I write often about the cases in which a legally recognized mom (through birth or adoption) seeks to deprive her children of their other mom, her former partner. Arguments against the second mother invariably invoke a narrow definition of "parent" and sometimes, as in the highly-publicized Miller-Jenkins case, are downright homophobic.

But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)

Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)

Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:

Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.

Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.

In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.

The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.

For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.

Post-election thoughts on the marriage ballot measures

I can't disagree that the ballot box victories for same-sex marriage, including Minnesota's defeat of a constitutional amendment to ban it, are a turning point.  I am, however, troubled by one aspect of the press coverage of these victories.  The anchors and newspapers have repeatedly said that, before last night, every ballot measure against same-sex marriage had been successful.  This is a little misleading.  Voters in Arizona in 2006 defeated Prop 107.

Prop 107 was a constitutional amendment banning both same-sex marriage and recognition of rights for unmarried couples.  The latter consequence was phrased this way:  "no legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage."  The majority of states that ban same-sex marriage also have language like this (generically called "super-DOMAs"), that can mean the end of domestic partner benefits for straight and gay public employees (this happened in Wisconsin) and bans on recognizing any rights for unmarried couples.  (In Ohio, some courts invalidated laws against domestic violence aimed at an unmarried partner because of that state's super-DOMA;  that interpretation was ultimately invalidated by the Ohio Supreme Court).

Prop 107 lost at the polls.  Widely credited for the loss was a campaign highlighting that straight couples would lose domestic partner benefits they had as employees of the cities of Tucson and Phoenix and other public employers.  The benefits were also available to same-sex couples.

Two years later, Arizona voters did approve a constitutional amendment limited to banning same-sex marriage, in other words not a super-DOMA.

So it is true that Arizona voters ultimately rejected same-sex marriage.  But omitting mention of Prop 107 omits an important part of the history of these ballot measures.  The Prop 107 vote stands for the proposition that voters don't believe all couples who can marry should have to marry.  Since super-DOMAs have passed in so many other states, the Arizona defeat is the evidence that there is some resistance to stigmatizing unmarried couples -- gay and straight.

I think news coverage of yesterday's ballot measures should have included this fact.  Instead of saying that no ballot initiative against same-sex marriage had ever been defeated, reporters could have said that before last night only one state had defeated such a measure, and that was when it also banned any recognition of unmarried couples.

As I often write here, I worry that the fight for marriage equality has pushed off the agenda of the gay rights movement any support for same-sex couples who don't marry when it is available.  I actually discuss that extensively in the context of the decision of Lambda Legal to abandon the interests of unmarried straight couples in Arizona who lost their domestic partner benefits.  (See my post here.)

I don't think most people know about super-DOMAs, and I consider the coverage of yesterday's ballot measures that omitted the Arizona experience as a missed opportunity to provide important information.

Gay semen donor obtains parentage order ... then tries to get out of paying child support

It's a common story. Lesbian couple asks gay friend to be a semen donor. They agree he will not be a parent, won't have his name on the birth certificate, but will be in the child's life -- somewhat.

In Curtis v. Prince, a case decided by an Ohio appeals court last week, this scenario went bad...twice. Laura Prince, her partner Vicki Griffin, and their friend, Robert Curtis, signed an agreement to such an effect (although there was no agreement in the record...). But within months of the child's July 2002 birth, Curtis sought and obtained a parentage order. We're not told in this opinion how or why this happened. Curtis was also ordered to pay child support, but he appealed that part of the order succesfully. (No indication whether Prince sought the support or whether the child support agency sought the order; no indication for that matter whether Prince was on public assistance, in which case the child support agency would go after a paternity order on its own to recoup support. And no mention of Prince's partner, Griffin.)

Then Curtis moves to Florida and has nothing to do with the child, and then in 2008, the child support agency "on behalf of Prince" again goes after Curtis for support. (I put "on behalf of Prince" in quotes because that's how it's put in the opinion and I cannot tell whether Prince asked the agency to get child support for her or whether Prince was on public assistance and so she was required to cooperate in getting support but the state is going to keep the money.) Anyway, now Curtis wants to use Ohio's donor insemination statute to say he's not a father because the child was conceived through donor insemination! The trial court bought it, but in this ruling the appeals court said the 2002 parentage order was final and Curtis couldn't get out of it now.

The appeals court seems a tad sympathetic to the trial court's attempt to keep Curtis from paying support. It says, "In light of the personal relationships in place at the time of the child’s conception, the trial court’s attempt to create an equitable result is understandable." Trouble is, I can't figure out what's equitable here. I would oppose Prince and the state going after Curtis based on his biological connection to the child. A semen donor should not be considered a parent absent a written agreement saying he is, and it looks like the contrary agreement existed in this case. But it looks like Curtis broke the agreement by seeking a parentage order, then tried to get out of child support but started to ask for visitation and then changed his mind and moved away. There is no mention of whether he then had anything to do with the child for six years, until the recent child support action.

Questions. What were the facts when Curtis filed for parentage? Prince didn't appeal the parentage order, but maybe she couldn't afford to (later on it's clear she had no lawyer); or was there some other reason? What happened to Griffin? Did Prince expect her to be around to help raise the child and did she split leaving Prince with financial responsiblity she could not bear alone? Did Prince seek support from the only plausible source of money? Did she feel justified because Curtis had broken the agreement first? Had Curtis played any role in the child's life all these years?

I don't know the answers, but I do know this. Legal parentage has consequences. I can't imagine how Curtis got out of the support order the first time around. The opnion says the trial judge in 2003 ruled that Prince had waived her right to support. But it makes no sense that her side of the agreement was upheld but not his. This is one strange case.

It's the children, stupid! ...Or why Ryanne, Nolan, and Jacob still don't have two legal parents

The Sixth Circuit Court of Appeals has upheld the bans on same-sex marriage in four states: Michigan, Ohio, Kentucky, and Tennessee.  I hope the Supreme Court hears the case (or the Sixth Circuit, en banc) and reverses, but I have another fish to fry here.

I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose.  April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising.  In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions.  Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married.  It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children.  And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry.  (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents.  This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.

Every adoption requires a judge's finding that the adoption is in the child's best interests.  All DeBoer and Rowse wanted was for a judge to examine their family and make that determination.  Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption.  Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did.  They filed a challenge under the US Constitution in federal district court in Michigan.  In this post,  I document what went wrong when the judge decided the case was really about Michigan's marriage ban.  His reasoning was that if the couple could marry, then they could do stepparent adoptions.

But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children.  Here is what the trial judge said in October 2013, in a footnote:

The Court expresses no view on the constitutionality of [the statute that] limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants' enforcement and defense of [the adoption statute]. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the [state's ban on same-sex marriage]. Thus, the relief plaintiffs request hinges on the constitutional validity of [that ban].

The case then proceeded to trial on the marriage issue (which I wrote about here and here), culminating in the favorable ruling that the Sixth Circuit reversed yesterday.  The trial judge never did squarely address the second-parent adoption claim on its own, and the lawyers for DeBoer and Rowse did not make him.  They should have.  The judge was factually wrong when he said that: "Plaintiffs may not jointly adopt their children because they are not married."  They could not jointly adopt because Michigan does not allow second-parent adoption.

Consider this.  If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down.  Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption.  But then the lawyers would have appealed that issue  as a cross-appeal to the state's appeal of the ruling striking down the marriage ban.  THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.

I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition.  Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process.  In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.

The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption.  The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory.  When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests.  That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children.  But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.