HBO's Nuclear Family tells the story of lesbian parenting at a time when the law was very different

            WNBA superstar Diana Taurasi returned home from the Tokyo Olympics this summer with her fifth gold medal, but she told a local journalist that nothing in 2021 would surpass the upcoming birth of her second child to wife and former teammate Penny Taylor. Their family, two moms and two children, enjoys social acceptance and legal protection entirely unavailable in 1979 to Robin Young and Sandy Russo, who goes by Russo, the family at the heart of the HBO docu-series, Nuclear Family, which aired this fall.

Robin and Russo’s path to parenthood was not paved by Olympic stars nor facilitated by a world of information on the internet. They had little in the way of role models, but they did have a pamphlet, self-published by lesbians in San Francisco and sold in women’s bookstores, demonstrating the process of self-insemination using donor semen.  All they needed were two men, willing to donate sperm without assuming any rights or responsibilities of parenthood.  Today they could find an anonymous donor through a sperm bank; or a doctor willing to perform the insemination using known donor sperm; or they could undergo removal of one mom’s egg followed by in vitro fertilization using donor semen and implantation and gestation in the other mom; or they could adopt.  There are role models everywhere.

                Most importantly for understanding the family drama that unfolded in Nuclear Family, in the early 1980’s Russo and Robin had no way to protect the integrity of the family they had formed. Today, in some states, the joint endeavor of donor insemination would automatically make both women legal moms and would automatically eliminate the parental rights and responsibilities of a sperm donor. In every state, the non-biological mom could adopt the child, creating full legal parentage and formalizing the donor’s agreement to forego parental status. The birth certificate of a child born to a married lesbian couple today bears the names of both spouses as parents, although experts recommend the extra step of adoption to confer universal acceptance of the non-bio mom’s right.

But in 1981, when Ry Russo-Young was born, there had never been a second parent adoption by a same-sex partner; the first one in New York came over a decade later, in 1992, and the practice was not approved by the highest court in New York until 1995.  Same-sex marriage would not come to New York until 2011.  Robin and Russo asked two gay men they met through friends in San Francisco to donate sperm so each could bear a child.  Both men agreed that the two women would be the parents, but they were willing to meet the children in the future if they moms wanted. Today that arrangement could be confirmed in court, but at the time it was an arrangement based on trust. Nuclear Family tells the story of how the trust disappeared when one donor, Tom Steel, filed an action for paternity when Ry was 9 years old.

The path to the litigation began when Ry was three and the moms travelled with both children to San Francisco to meet the donors.  Ry’s sister Cade had a different donor, and no significant relationship developed between him and the family.  But Ry’s donor, Tom, became a family friend. There were visits and family vacations, all involving both moms and both girls.  Ry knew Tom was her biological father, but she also knew that Cade was her sister and Robin and Russo her parents. 

Then when Ry was 9, Tom asked Robin and Russo to send her alone to California to attend a gathering of his biological family.  The moms refused.  Had Russo’s legal status as Ry’s mom been secure, as it could be today, that would have been the end of it.  He might have asked the following year, and they might have said yes. But the law at the time did not recognize Russo as a parent, and Tom’s paternity action made clear that he did not either.  He filed against Robin only, excluded Russo from the court proceedings, and claimed he was Ry’s father and had the full rights of parenthood, even though she had never spent a single night with him without her moms.  Although among friends and colleagues Tom claimed that Ry’s expansive family included both Russo and himself, that was not what he said in court.

The story of the subsequent four years of litigation has been told before in magazines and even a documentary.  But that child, Ry Russo-Young, grew up to be a filmmaker, and, at 40, she made Nuclear Family to explore for herself those defining years of her childhood.  It’s a riveting human interest story, but it is also a story about the law at a time before today’s Olympians were born.

Fulton v. City of Philadelphia: The Challenge of Fighting BOTH Discrimination Against LGBT Foster/Adoptive Parents AND Excess State Removal of Children from Their Parents

 

LGBT FAMILY LAW INSTITUTE 2020

Fulton v. City of Philadelphia: The Challenge of Fighting BOTH Discrimination Against LGBT Foster/Adoptive Parents AND Excess State Removal of Children from Their Parents

Presented by Nancy Polikoff, American University Washington College of Law

npoliko@wcl.american.edu

 

What is the child welfare system?

The child welfare system is a regime of public, private, and faith-based entities and individuals authorized by force of law to remove children from their parents and terminate the parent-child relationship. It includes a massive foster system in which the state pays vastly more money to strangers to raise other people’s children than it is willing to provide parents to raise their own children. Almost 20 years ago, in Shattered Bonds: The Color of Child Welfare, law professor Dorothy Roberts wrote, “If you came with no preconceptions about the purpose of the child welfare system you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.”  Those words remain as true today as they were in 2001. A nascent movement, building on prison abolition work, seeks to abolish the child welfare system, better referred to as the family regulation system.  The demands of the Movement for Black Lives include "Eliminate the foster system's power to permanently and irreversibly destroy Black families through termination of parental rights." For more information, visit the Movement for Family Power and the Center for the Study of Social Policy UpEND Movement, and please plan to attend the Columbia Journal of Race and Law 2021 Symposium, Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being.

How do LGBT parents interact with the child welfare system?

LGBT parents interact with the child welfare system in two ways: 1) they experience removal of their children and termination of their parental rights; and 2) they seek to be foster and adoptive parents.  You have likely heard way more about the latter group than the former, because LGBT advocates vigorously oppose laws that permit agencies to refuse to license foster and adoptive parents.  Also, couples wanting to foster and adopt were highly visible in same-sex marriage litigation and activism.

Do we really need to be concerned about LGBT parents whose children are removed by the state?

YES! A research study of African-American mothers that asked questions about sexual orientation in conjunction with questions about loss of children to the state found to a statistical significance that the mothers who identified as lesbian/bisexual were over four times more likely to have lost their children than those who identified as heterosexual. There is no data on the number of LGBT parents who have lost their children to the state.  There is, however, data showing that lesbian mothers and same-sex couples are disproportionately African-American and economically disadvantaged, and that they live in the same neighborhoods as low-income African American heterosexual mothers -- the very group, in the very neighborhoods, most targeted for child removal.  In addition, there is research showing that LGBT individuals, many of them parents, disproportionately experience many risk factors that correlate with facing child welfare investigations, such as homelessness and housing instability, food insecurity, substance abuse, incarceration, a history of physical or sexual abuse, and having been a foster child oneself.

LGBT parents experiencing child removal face some unique issues: discrimination in both the removal decision and the decision whether to reunite the family; failure to treat a nonbiological parent as a legal parent; and failure to treat chosen family as relatives and kin, which carries special meaning in child welfare placement decisions.  Just consider this:  some of the same agencies that refuse to license LGBT foster and adoptive parents provide case management services to parents whose children have been removed and placed in foster homes. They have the power to determine that a child will never go home to a lesbian mother.

But beyond LGBT specific issues, we need to be concerned about all child removal decisions.

Injustice pervades all child removal decisions

Child removal is a vital matter of racial and economic justice. Over the past twenty years, lawyers, academics, policy makers, activists, and parents have written and spoken about the defects in, and harms inflicted by, the child welfare system.  Critics have identified, among other concerns: misidentifying poverty as neglect; widespread due process violations; denying services that are legally mandated to prevent child removal or reunite families who have been separated; inadequate mental health and substance abuse treatment and the ever-more-frayed safety net; untimely and ineffective legal representation; inappropriate reunification requirements; vague standards; misdiagnoses of child abuse; drawbacks of mandatory reporting; consequences of child abuse registries; financial incentives  for foster placements and adoptions but not for returning children to their parents; the foster-care industrial complex; mistreatment and bad outcomes of children in foster care; differential application of laws; the impact of increasing income inequality; and, unrelenting, ongoing, structural racism, which commonly goes by the gentler term “racial disproportionality.” During this period there have been some new studies, laws, regulations, and practices, yet the evils persist.

This is our challenge

Discrimination against LGBT individuals and same-sex couples who want to foster and adopt is wrong.  But so far the primary argument LGBT advocates make in opposing such discrimination is that there are so many children in need of foster and adoptive homes.  Here is one example: “There are approximately 400,000 children in the U.S. foster care system, 100,000 of whom are waiting to be adopted. Unfortunately, because of a lack of available adoptive parents, 23,000 of these youth will leave foster care without ever finding a permanent, loving home.” (emphasis added).  Such an argument presumes that the children in the foster system are rightly there; that the evils described in the previous section do not exist; and that what is needed is more adoption, including by LGBT parents.  These presumptions clash with the demands of racial and economic justice activists to remove fewer children and reunite those who are removed. And remember that there are likely a disproportionate number of children of LGBT parents in the foster system.

And so...in the face of the racism and other injustices that result in child removal, including disproportionate removal from poor, Black lesbian/bisexual mothers, (how) is it possible to argue that discrimination against LGBT people who want to foster and adopt is wrong?

What ELSE is wrong with Philadelphia Catholic Charities?

Catholic Charities in Philadelphia refuses to licenses same-sex couples as foster and adoptive parents.  That stance cost them their contract with the city -- in other words public funding -- to serve as an agency that certifies foster and adoptive parents for children in foster care. Philadelphia has an ordinance that forbids contractors to discriminate on the basis of sexual orientation. Since Catholic Charities does discriminate, it could not remain a city contractor.

Catholic Charities responded to the city's action by suing, claiming that it is the subject of discrimination...on the basis of its religious beliefs.  So far, it has lost. This conflict is one of many across the country, as organizations and individuals assert a constitutional right to discriminate or seek a legislative right to do so.  The Movement Advancement Project does a good job of tracking existing and pending  actions.

But as this article explains, Catholic Charities continues to serve as a community umbrella agency working with children in foster care and their families.  The city has not cancelled that contract.  Here is the map that shows how much of the city lies within Catholic Charities' purview.  In its function as a community umbrella agency, Catholic Charities provides case management services that determine whether a child, once removed from parents, is returned to their care.  Reunification services can be the most critical component of determining a child's fate.  If an agency determines that a parent should attend classes, mental health counseling, or job placement services, the parent's failure to do any of those things can lead to termination of parental rights.  If an agency sets up a parent's visitation with her child at a particular place on a particular day, the parent's failure to attend can lead to termination of parental rights.  That the services may be unnecessary; that the schedule might conflict with a parent's job, or care responsibilities for other children, or other appointments for housing assistance or some other necessity; those things may turn out to be irrelevant.  The power of the supervising agency to set the rules and then determine if they have been broken is, literally, awesome.

So what's the problem?  Aside from the unreasonable demands frequently placed on all parents of children in foster care, some of those parents are LGBT and have same-sex partners or ex-partners.  Catholic Charities admits it will not license same-sex couples as foster or adoptive parents.  We should assume that the agency thinks equally badly about the parents in same-sex couples trying to get their children back from foster care.  The power to supervise families with children in state care is the power to determine where those children end up.  If Catholic Charities wants those children in an adoptive home with a married mom and dad, or in a kinship home with a homophobic relative, that is where they will end up.  No case manager has to state up front that the child will not go home to a lesbian mother; there are just so many ways to achieve that result without being direct.

The case manager can also place the child in a foster home that denigrates LGBT individuals and same-sex couples.  Heck, the case manager can place an LGBTQ child in a foster home that denigrates LGBT individuals and same-sex couples.  THAT is a lot of power.

The subject of LGBT parents whose children are removed by the state has not made it to the top (or even the middle or the bottom) of the agenda of any LGBT advocacy organization.  This even though the one research study looking at the sexual orientation of parents who lost their children found that, among low-income Black mothers, those who identified as lesbian or bisexual were over four times more likely than those who identified as heterosexual to have lost their children to the state.  Well those parents are at the top of my agenda, and my article about them, Neglected Lesbian Mothers, will be out shortly in the Family Law Quarterly.

There's a lot that LGBT advocates could be doing. But with an organized effort underway to stop agencies from discriminating against LGBT foster and adoptive parents it should be a small, but hugely significant step, to add to the demands that no agency that refuses to license gay people as foster parents should be able to supervise families with children in foster care where either a parent or the child is LGBT.  I'm talking about YOU, Philadelphia Catholic Charities.

Yes, Sarah and Jennifer Hart played the lesbian card

By now I have read so much about the white lesbian mothers who murdered their six adopted black children, Cierra, Jeremiah, Abigail, Markis, Hannah, and Devonte Hart, that I did not think I would have anything to add.  But I sat down to review the 2013 file released by Oregon CPS anyway.

The investigation in Oregon was triggered by two reports of child endangerment, one claiming the children were malnourished and the other reporting Jennifer's harsh punishment of the children. The file includes the information provided to Oregon CPS by Minnesota Child Welfare about incidents when the family lived in that state going back to 2010, including Sarah's domestic violence conviction in 2011 for her physical abuse of one child.  (Before 2010 - in 2008 - Hannah, then 6, went to school with a large bruise and reported that her mother hit her, but the authorities believed the couple's explanation that Hannah fell down the stairs and nothing came of the allegation.) Most of the reports in Minnesota came from the children's teachers, and immediately after the report that triggered the criminal charges, Jennifer and Sarah removed the children from school and began to home school them.

Naturally, the Oregon investigator asked the couple about their involvement with Child Welfare in Minnesota.  And that part of the report is where I found a detail that I think no one else has reported.  "Ms. J. Hart and Ms. S. Hart," the report states, "believe they have been targeted due to being a vegetarian, lesbian couple who married and adopted high risk, abused children..." Yes, that's right.  They played the lesbian card, attempting to deflect attention from how they actually treated their children by claiming to be victims of homophobia.

I'm not saying Oregon CPS was fooled by the couple's claim.  An investigator spoke to each child alone, and none reported abuse or the withholding of food. (The report does note that "the children provided nearly identical answers to all questions asked.").  Each child was evaluated by a doctor, who expressed no concerns even though five of the six children were so small they were not on the growth chart.  The disposition of the Oregon CPS investigation was "unable to determine," meaning that "there are some indications of child abuse or neglect, but there is insufficient data to conclude that there is reasonable cause to believe that child abuse or neglect occurred."

The couple subsequently moved to Washington, and of course we know that state's investigation was about to get underway, prompted by the children begging a neighbor for food and help, when Jennifer and Sarah headed south with the children, and Jennifer drove their SUV off a cliff and into the Pacific Ocean in California.

I consider it good news that coverage of this tragedy has not been accompanied by calls to ban gay and lesbian adoption.  But the bad news is this:  At least for the children born to Texas mom Sherry Davis (Devonte, Jeremiah, and Cierra), there was a kinship adoption proceeding that the Texas courts rejected.  And that was its own, independent tragedy.  Priscilla Celestine lost her bid to adopt the children because she allowed the children's mother, Sherry, to see them while she was at work.  The social worker made an unannounced visit and took the children away instantly.  There was no allegation that Sherry harmed or endangered the children during the visit, just that contact with Sherry was prohibited. Priscilla continued her efforts to regain custody of the children through the Texas courts, losing at each step.

Sherry Davis lost her parental rights because she was a cocaine addict.  Now consider this: The state of Texas paid the Harts close to $2000 a month as an adoption subsidy, for a total of about $277,000 over most of a decade.  Let's assume (and I don't know if this is true), that half of that was for Sherry Davis's biological children.  Imagine if the state had made available to Sherry $1000 a month for drug addiction treatment and other assistance, every month for almost 10 years.  Sherry did get clean, but not fast enough for the state of Texas.  Or the federal government for that matter, which mandates pursuant to the Adoption and Safe Families Act that states move to terminate parental rights after 15 months, even though successful drug treatment often takes longer than that.  Devonte, Jeremiah, and Cierra could have had an extended family and, ultimately, their mother also, if the state had permitted the children to remain with Priscilla.

At one time, Sarah and Jennifer Hart might have been the poster couple for same-sex marriage, a white lesbian couple who adopted two black sibling groups out of foster care.  Judge Posner would have loved them, and I would have hated his reasons for doing so, as I wrote about here.  LGBT advocacy groups would do well to remember that many of the children in foster care and available for adoption should not be there; that the state is too quick to remove children from economically disadvantaged mothers of color, some of them lesbian and bisexual mothers; and that the solution to the disproportionate number of black children in the foster care system is not more adoption by same-sex couples but more resources to the families those children come from, including safe and affordable housing, adequate drug treatment, and other components of a robust social and economic safety net.  Since by now we know that LGBT individuals are disproportionately poor, incarcerated, homeless, and food insecure, such a safety net should be as important to the LGBT family agenda as stopping discrimination against same-sex couples who want to be foster and adoptive parents.

NY appellate court gets Gunn v. Hamilton wrong

The New York Times and the New Yorker are among the outlets that extensively covered Kelly Gunn's court action asserting parentage of Abush, a child adopted by her ex-partner Circe Hamilton.  The trial court ruled against Gunn, finding that the couple's plan to adopt a child together ended when their relationship ended, over a year before Abush was even identified as a child available for Circe to adopt.

Late last month, the appellate court refused to put the matter to rest.  It agreed with the trial court that Kelly was not a parent based upon the couple's earlier intent to raise a child together.  But it sent the case back to let Kelly try to prove that she should prevail on the grounds of equitable estoppel.  Circe did allow Abush to develop a relationship with Kelly, but it was never a parental relationship.  Kelly even referred to herself at one point as assuming a godmother role.

I find the result shocking.  Lots of children have extremely close relationships with adults other than their parents.  When the parent decides to relocate with the child, which is what happened here when Circe wanted to return to her native London, the child and adult may miss each other very much.  Nonetheless, a parent can make that choice about her family for reasons too numerous to list, such as cheaper cost of living, job opportunities, education opportunities, a new primary relationship, and family support.  

There was extensive evidence about Abush's relationship with Kelly and none of it pointed to a parent-child relationship.  The appeals court seems to think the child's perspective is necessary, but there is nothing the child can say that would turn Kelly into a parent.  And if the child's voice reported a close relationship with Kelly, that would still not make her a parent.  I find it useful to run the facts of the case through the new Uniform Parentage Act.  The UPA enumerates several paths to parentage, including a de facto parentage path.  Kelly would meet none of the UPA tests.

It is dangerous to allow the kind of challenge to a parent's authority sanctioned by this appellate court ruling, and it is especially dangerous for single parents.  I say this because I think the result would have been different if Circe had been raising Abush with a partner, even if the child had spent exactly the same amount and quality of time, and developed the same relationship, with Kelly.

We need to talk about LGBT parents who lose their children to the child welfare system

I have written about lesbian mothers, and LGBT parents more broadly, in many contexts.  But from now on I'll be concentrating on one context...child welfare proceedings that remove children from their parents and that can result in termination of parental rights.  My first post on this topic was on the website of the LGBTQ Poverty Initiative, whose report, Intersecting Injustice, was recently released.  Read Invisible and Ignored: LGBT Parents in the Child Welfare System here, and stayed tuned for more.

Who says a child's two parents have to be a "couple"? Not Canada

With many states requiring same-sex couples to marry before they can both be parents of the same child, it's great to read this story out of Ontario, Canada, about two women committing to parentage without ever having had a conjugal relationship with each other.  Elaan has two parents who are very close friends.

About three years ago, a New York judge allowed a gay man to adopt the child he was already raising with a female friend.  The two friends tried conceiving a child through insemination but were unsuccessful.  They remained committed to co-parenting and arranged to adopt a child from Ethiopia.  Because they were not married, only one could adopt the child overseas.  The woman adopted the child and returned to NY, where the two petitioned to have the man do a second-parent adoption.  In that case, the court had to find that the two friends met the definition of "intimate partners" in the statute.

I want to give a shout out to Angela Kupenda, who wrote twenty years ago about the model of two African-American adults adopting a child together in circumstances where each might hesitate to take on parenting alone.

This isn't uniquely a gay rights issue, but being gay means pregnancy will not happen by chance.  It will take planning.  It calls out for creativity, more creativity than is found in limiting joint parenting to married couples of any gender combination.

Williams Institute marks a very personal 40th anniversary

I want to express my deep thanks to the Williams Institute at UCLA Law School for honoring the 40th anniversary of a law review article that Nan Hunter and I co-wrote  and published in 1976 entitled The Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy.

Williams sponsored a webinar at which both Nan and I spoke, with commentary for Courtney Joslin of UC Davis Law School and Kim Pearson of Gonzaga Law School.  You can watch it here:   And these were my remarks:

            The cutting edge of the law affecting lesbian mothers today lies not in the cases that Nan and I wrote about 40 years ago, but in disputes that call into question the definition of parent, questions like: When does intent or conduct create parentage in the absence of biology, or can a child have three parents, or four?  But the increased visibility and acceptance of same-sex relationships has not stopped the phenomenon we described in the 1970’s:  a man or woman entering a heterosexual marriage, having children, and only later coming out as gay or lesbian.

            The formal law in those cases has changed since the 1970s.  No state asserts that a parent in a same-sex relationship is per se unfit.  In fact all states say that a parent’s same-sex relationship itself is not sufficient reason to deny that parent custody.  Yet such parents continue to have reasons for concern in contested cases, even in states with overall supportive law.  In the short time I have today, I am going to describe one such case and mention the reasoning of other cases.  I also want to take special note of the vulnerability of transgender parents.

            Last month, the Washington State Supreme Court heard argument in Black v Black.  Charles and Rachel Black were married for roughly 20 years and had three sons.  They raised the children in a conservative Christian home and the children attended conservative Christian private schools. Rachel was a stay-at-home mom. When the children were approximately 12, 9, and 4, Rachel told Charles she was a lesbian.  Up through the end of the divorce proceedings, three years later, the parents lived within the same home, in separate sleeping quarters, although Rachel began a relationship with a woman.

            The parents each requested the equivalent of primary physical custody and decision-making authority over education.  Rachel wanted the children to attend public school rather than a school that teaches that homosexuality is a sin. 

            I’m sure you can see where this is going.  The Guardian Ad Litem criticized what she called Rachel’s “choice” to leave the marriage and live with a female partner and said that her “choice” caused controversy and confusion. Although the statute allowed a court to consider a CHILD’s religious beliefs in deciding custody, there was no evidence presented about the children’s actual religious beliefs.  Rather, the trial court said that the father was the more stable parent, because he would remain in the family home, keep the children in the same school and maintain their religious upbringing.  The court also ordered no contact with Rachel’s partner and no exposure to anything involving homosexuality until approved by the therapist.

            Washington state has long had law prohibiting restrictions based on a parent’s sexual orientation.  A trial court cannot impose restrictions “designed to artificially ameliorate changes in a child’s life” or simply because it believes the restrictions will make the post- marriage transition easier for the child. So the Court of Appeals overturned the trial court’s imposition of restrictions.  But it upheld the decision giving primary physical custody to Charles, finding no abuse of discretion and specifically crediting the GAL’s recommendation based on the children’s need for stability.  It also upheld Charles’s sole decisionmaking authority on the children’s education, thereby guaranteeing they will remain in a school environment that teaches them that their mother is sinful.  It is that appeals court ruling that is currently before the Washington Supreme Court. 

            Notably, Charles does not maintain in his brief, nor did his attorney at oral argument, that there is any problem with Rachel being a lesbian.  Nor does he seek to reimpose restrictions on her visitation. Charles once referred to Rachel as a “militant lesbo,” but he later said he regretted that comment and that it was made out of anger and hurt.  He now focuses completely on the argument that custody with him serves the best interests of these children, given the upbringing they received during the marriage and their need for stability. But completely absent from the court rulings to date, in this case and in other recent appellate decisions, is any articulation of a heterosexual parent’s obligation and responsibility to assist the children in adjusting to having a gay or lesbian parent. Charles quotes the GAL’s position that keeping the children in their schools was “safe from an emotional perspective.”  But this is a twisted conception of emotional safety, one that ignores the teachings the children receive in school about their mother.

            In a number of other cases within the past decade, appeals courts have upheld custody awards to a heterosexual father over a lesbian mother based on a child having a difficult time adjusting to the mother’s same-sex relationship or even just feeling uncomfortable around the mother’s partner.  There is no doubt that some children do feel this way.  But not one opinion describing such facts places responsibility for the child’s difficulties on a heterosexual parent for refusal to assist the child’s adjustment to a new reality.  A gay parent can be faulted for allegedly placing her own needs above her child’s, while no heterosexual parent has been faulted for placing his needs above his child’s when he fails to ease the child’s acceptance of the mother’s new relationship.  Until courts do assess the non-gay parent’s suitability based on his willingness to facilitate the child’s acceptance of having a gay parent, lesbian mothers and gay fathers remain vulnerable to losing custody and facing visitation restrictions. 

Perhaps the most I am willing to say today is that when a parent has stable employment and housing and has not had multiple partners, and when her children show no signs of distress and do not oppose remaining with her, then she can be more confident than her counterparts 40 years ago. In the absence of any of those factors, she still faces, in more subtle ways, the vulnerability we wrote about.  I also want to alert everyone to a possible future issue.  Until the last few years, disapproving courts have been able to lump all same-sex relationships with unmarried different-sex relationships, and to restrict a child’s exposure to any nonmarital partner, something courts have repeatedly said is distinct from the parent’s sexual orientation.  Now that all same-sex couples have the option to marry, we may see overt disapproval of those who fail to do so.

            For my second point today, I want to talk about parents who transition after or at the time of divorce.  We reported in our 1976 article about the case of Christian v. Randall.  In that case, a mother had custody of her four daughters and then transitioned.  A Colorado trial court changed custody of the children to their father, against their wishes.  The appeals court reversed, finding that the “transsexual change” had had no adverse impact on the children.  I could never have imagined that, forty years later, that case would remain the single most definitive victory for a transgender parent in a contested custody dispute.  Notable in the case, however, is that the children were all thriving and wanted to remain with their mother.   Those factors are not dependably true in any child-related dispute, let alone one involving children’s reactions to a parent’s gender transition.

            I can’t be too blunt about this.  Transgender parents are facing a landscape much like the one gay and lesbian parents faced 40 years ago.  In the section of our article on litigation strategy, we began with the recommendation that the case be kept out of court.  If you open the fine materials available today to assist transgender parents and their attorneys, like Jennifer Levi’s Transgender Family Law, you will find the same advice.  A necessary component of such a strategy includes careful consideration of how both the spouse (or ex-spouse) and the children are made aware of the impending transition.  There are minefields everywhere. 

In one case a nine year child went to visit her father in another state, observed his “feminine features,” and told her mother she did not want to visit again.  The mother made no effort to assist the child’s acceptance of having a transgender parent.  The child did not see her father again until the day, six years later, when she testified in court that she wanted to be adopted by her mother’s husband so that she could have a real father.  The effect of that adoption was to terminate the rights of the transgender parent, which the court did by finding by clear and convincing evidence that the parent had inflicted emotional injury on the child.

In another case, where a mother and father began with 50-50 joint physical custody, the mother filed for sole custody based solely on the father’s transgender status and impending gender reassignment surgery.  The trial court granted the mother’s petition, once again invoking the children’s need for stability and noting that the impact of the father’s upcoming surgery was “uncertain.”  But no doubt mindful that the legal standard did not permit modification based on transgender status alone, the trial court made some other factual findings in support of its order.  This allowed the appeals court to affirm, citing the ubiquitous “no abuse of discretion” standard, and provoking a scathing dissent.

The positive trajectory for gay and lesbian parents over the last 40 years may be a harbinger that transgender parents will find greater acceptance in the future.  But recognizing the circumstances under which gay and lesbian parents remain vulnerable is cautionary, and reinforces the importance that all such parents find well-prepared counsel before a dispute with a former spouse escalates into contested litigation.

It's a trifecta! Massachusetts find nonbio mom to be full legal parent

After wins in New York and Maryland, Massachusetts becomes the third state in three months to recognize the reality of life for children planned for and then raised by same-sex couples.  Today's win in Partanen v. Gallagher is the most satisfying of the three, finding that Karen Partanen is the full legal parent of the two children born to her partner.  The couple planned for those children together, participated in the IVF process that resulted in Gallagher's pregnancy, and raised the children as two parents until they separated when the first child was 5 years old and the second about 21 months old.

The opinion approves several critical legal principles:  Parentage statutes must be read in a gender-neutral manner.  Therefore, Massachusetts statutes concerning parentage of a child born to "a man and woman" not married to each other apply equally to the two unmarried women in this case (and, as a footnote makes clear, to two unmarried men); the two children in this case were therefore born to both Gallagher and Partanen.  The children would have two legal parents if their parents had been married, and the court will not read other statutes in a way that keeps children with unmarried parents from having two parents. Partenan's claim does not infringe upon Gallagher's right to form a family as a single parent because the children were not born to her as a single parent; they had two parents from the very beginning. Also, statutes presuming parentage based on living with a child's mother and jointly holding the child out as the child of both parents are not defeated by the lack of a biological connection between the "holding out" parent and the child.

Kudos to GLAD attorney Mary Bonauto, who also gets a huge amount of credit for the passage of pathbreaking parentage legislation in Maine that took effect July 1, 2016.  That legislation should be a model for other states looking to reform their parentage laws for all children.  Under the Maine statute, the nonbio parents in the New York and Maryland cases, as well as Karen Partanen in this case, would all be the legal parents of their children.

Beyond Marriage Ten Years Later

The Beyond Marriage statement from  2006 has a new home on the web here.  We'll be talking about it at the CLAGS After Marriage conference tomorrow.

Alison D. overruled! Children of same-sex couples in New York now have TWO parents

When I wrote about the New York Court of Appeals 2010 ruling in Debra H., I observed that the Court had breathed new life into the long-discredited legal status of illegitimacy.  A child born to a married (or civilly united) lesbian couple in New York had two parents; a child born to an unmarried couple had one parent.  That ends today.  The New York Court of Appeals overruled its 25-year-old opinion in Alison D. v. Virginia M. (and the portion of Debra H. that relied on it) and established the rule that the definition of "parent" for purposes of seeking custody of a child includes someone who enters into a pre-conception agreement to conceive and raise a child as co-parents.

That rule settled the cases before the court, In re Brooke S.B. and In re Estrellita A., because such pre-conception agreements existed in both those cases. But fortunately the Court did not stop there. Instead, it said that it was leaving for another day the test that might be appropriate when a biological or adoptive parent facilitates the creation of a parent-child relationship with her partner after the child's conception.

The best thing about the opinion is its definitive inclusion of unmarried couples.  The worst thing about it is a footnote that says the statute would not allow a child to have more than two parents.

My biggest regret:  That Paula Ettelbrick did not live to see this today.

The Archbishop of Canterbury is not the biological child of his mother's deceased husband...and why that matters to same-sex couples

So it seems the Archbishop of Canterbury, who was born nine months after his mother's marriage, was actually the biological child of a different man with whom his mother's had sexual relations.

That may seem to have nothing to do with same-sex couples, but it does.  Right now courts across the country are grappling with whether a married woman's female spouse is the legal parent of the child she bears.  Phoenix family law practitioner Claudia Work told me that, on the same day this past week, two different Arizona judges in two different cases decided that issue in diametrically opposing orders; one applied the presumption and determined that the spouse was a parent and the other said the word "husband" in the parentage statute applied only to a male spouse until the legislature says otherwise.

It's the marital presumption that made the husband of the Archbishop's mother his legal father.  No one rebutted that presumption.  End of story.  At least end of both the legal story and lived story of this family.

This week the New York Times ran a story whose main point was that not so many children are actually the result of extra-marital liaisons.  But to say that the number is not the 8% to 10% of urban legal is actually not to state that there are few such children.  A major research study estimated the number at 1-2% of births to married woman (this can sometimes include unmarried women where the male partner has a high degree of certainty that he is the biological father).  In 2014, there were almost 4 million children born in the US.  Almost 59% of those births were to married women -- a total of almost 2.4 million.  Even if only 1% of those children are not biologically related to their mother's husband, that is 24,000 children per year in the US.  If it is 2%, that's 48,000.

Demographer Gary Gates, formerly of the Williams Institute, estimated from the 2008-2010 American Community Survey that 2% of women in same-sex couples reported giving birth the previous year.  The 2010 Census showed  almost 333,000 female same-sex couples, which translates into about 6,600 children born per year to those couples.

And so to my point.  The fact that a woman's female spouse is not her child's biological parent is decidedly not a justification for denying her the marital presumption.  If someone outside the marriage tries to rebut the presumption, well, resolving that dispute can wait until there actually is a dispute.  Until rebutted, that spouse is a parent, just as every husband is, even though four times as many children -- or maybe double that -- are born each year to married heterosexual couples where the husband is not the biological father.  In almost every state the husband's lack of biological tie does not, in every imaginable circumstance, automatically disestablish his parentage.  The law is more nuanced that that.

And so it should be for married lesbian couples.  Both are the child's parents from the moment of birth until a court says otherwise.

Maryland high court hears important oral argument -- and the other side offers no law

The Maryland Court of Appeals heard argument yesterday in Conover v. Conover (oral argument here).  By now the facts are not extraordinary:  Brittany Eckel and Michelle Conover had a child together using anonymous donor semen from Shady Grove Fertility Center, implanted in Brittany.  Jaxon was born in April, 2010 and given Michelle's last name.  Sometime after the couple split up, Brittany denied that Michelle was Jaxon's parent.  A couple of other facts worth noting.  The couple married when Jaxon was five months old and Brittany changed her last name to Conover.  This should not have any legal significance.  It does highlight, however, that the Maryland "artificial insemination" statute makes a consenting husband the legal parent of a child conceived by his wife with donor semen -- a statute that I would bet the farm the Maryland court would apply to lesbian couple married before the child's birth.  But it is the planning of the child together that should matter, not the couple's marital status. Also, Michelle has since transitioned and is now Michael Conover.  This should also have no legal significance, although it does point out the absurdity of refusing to read the words "father" and "husband" gender neutrally.  (By that I mean that the statutes that create a presumption that a man is a legal father should apply equally to a woman asserting she is a legal mother; otherwise Michael now gets to use them because he is male but could not while he was Michelle and female).  I continue to use the name Michelle in this post, only because that is how he is identified in the court proceedings below and in the briefs in the case.

This case highlights how state specific parentage laws are. As I point out here, if Jaxon had been born in a DC hospital he would have a birth certificate naming both Brittany and Michelle as his parents. There is a good legal argument for Michelle's parentage under Maryland law, as Jer Walter ably argued yesterday.  What was more surprising, however, was how poorly Brittany's lawyer argued. He told the court he accepted Brittany's case pro bono for the sake of the child, and offered "common sense" as the reason the statutes should not be read to give Jaxon's two mothers.  He had to acknowledge that Maryland law makes a husband the father of his wife's child born after donor insemination, but he said that in such cases there was the possibility that he was the child's biological father.  This can only mean that to the outside world it might look like there was such a possibility. That was enough for him.  Frankly, he only said out loud what many who oppose parenting by same-sex couples believe -- that a child has one mother and one father, end of story.  His legal position was that any change to that needed to come from the legislature.  He essentially told the judges not to do their job, which is to apply existing law to the cases that come before them, even if they are cases the legislators who enacted existing statutes did not contemplate.  He invoked Justice Scalia numerous times, again not a legal argument about Maryland law.

The court actually has two issues before it.  One is whether Michelle is Jaxon's parent.  The other is whether to overturn its eight-year-old opinion in Janice M. v. Margaret K. that refused to recognize de facto parents in Maryland.  Only two of the Janice M. judges remain on the court, and the opinion's one dissenter, Judge Raker, is sitting by designation in the Conover case.  Margaret Kahlor, the losing mom in Janice M., was in the courtroom for the argument yesterday. Janice M. should be overturned, but this court should not pass up the opportunity to read Maryland statutes to confer parentage on both members of a couple -- same-sex or different-sex -- who use donor insemination to have a child.

A special shout out to Katie Wright, who was my co-counsel on the brief we wrote on behalf of family law professors from Maryland and elsewhere, urging the court to find that Jaxon has two mothers.

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.

Posner's support for same-sex couples does not excuse his hostility to single parents...We should call him on his misogyny and racism

The Seventh Circuit moved mighty quickly when it ruled in the same-sex marriages cases last month. A lightning speed eight days after oral argument, the unanimous three-judge panel handed down its ruling in Wolf v. Walker (Wisconsin) and Baskin v. Bogan (Indiana).  Conventional wisdom has it that Judge Posner wrote the opinion in advance.  Numerous commentators lauded Posner's "evolution" on same-sex marriage. When the Supreme Court denied cert in these two cases earlier this month, it left every bit of the opinion standing.

I have been shocked by the virtual silence among marriage equality supporters concerning some of the nefarious reasoning in Posner's opinion.  Now I will admit that Posner goes to lengths to expose the faulty reasoning behind the defense of same-sex marriage bans that opponents proffer nowadays. The argument goes something like this: Limiting marriages to couples who look like they could procreate (or in the case of the elderly, set good examples for younger couples by looking like what those couples will one day look like) encourages marriage for those who procreate accidentally, and those are the couples who need the benefits of marriage to entice them into this most desirable family form.  (Yes, I am being tongue-in-cheek here). Allowing couples to marry who clearly cannot procreate accidentally makes it seem as though there is no connection between marriage and procreation, and this will foster an environment in which fewer heterosexual couples will marry for the sake of the children they might produce.  The state is trying to reduce accidental births outside of marriage, and since same-sex couples can't have such accidental births, there is no need to give them the state conferred benefits of marriage.

There is so much wrong with the reasoning above, and I did get a smile out of Posner's sarcastic response to the state rewarding heterosexual couples who behave badly (irresponsibly creating children) while punishing same-sex couples whose relationships do not result in irresponsible procreation. "Go figure."  That's how he put it.  And had he stopped there all would have been well. (I did also like that he pointed out that the rate of nonmarital births had increased, not decreased, since Indiana enacted its ban on same-sex marriage. It does show how preposterous is the cause and effect nature of the claim made by opponents of marriage equality).

But he didn't. Here is what he said:  Accidental pregnancies produce unwanted children; unwanted children are placed for adoption, and if not adopted wind up in foster care; unwanted children are a major problem for society.  Already I knew I wasn't going to like this.  Accidental pregnancies produce some children who are placed for adoption and many who are not.  "Unwanted" is a loaded term that hides the lived reality of why some women decide to place children for adoption, including the lack of social and financial support for mothers and the stigmatized nature of the paltry sums the state provides poor mothers.  Plus, accidental pregnancy does not equate automatically with unwanted children. (At oral argument, Posner asked the lawyer for Indiana if it wasn't true that children of accidental pregnancies are placed for adoption.  He said it as though that was the norm.  It isn't. I didn't like where he was going, and the opinion was even worse than I imagined.) Plus, healthy children who are placed for adoption at birth are adopted.  They don't wind up in long-term foster care because there is no shortage of parents who want to adopt them.  Some children do wind up in foster care for a long time and are not adopted.  But anyone tackling that problem should be looking first at the lack of support for the families of those children -- well-paying jobs with family-friendly leave policies, educational opportunity, affordable housing, substance abuse treatment.  And they should start by reading Dorothy Roberts's brilliant book, Shattered Bonds, to understand the role racism plays in our foster care crisis. Believe me, that was the farthest thing from Posner's mind....

After positing unmarried mothers as creating the problem, Posner's solution turned dark, and I wish it had outraged more LGBT rights commentators (or any).   Here is how he put it: 'Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin."

So single mothers create the problem,....and same-sex couples are the solution!  It got worse. Quoting data from Gary Gates of the Williams Institute, the best source of data in the country on all things LGBT, Posner wrote that same-sex couples (well, Posner said homosexual, but I won't go there...) were five times as likely as heterosexual couples to be raising an adopted child in Indiana and, throughout the country, were more likely to adopt children from foster care.  So, tying all this back to the issue at hand -- denial of access to marriage for same-sex couples,  Posner concluded, "Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters."

If I were to propose improved prospects for "unintended children," it would be with implementing policies that value all children, and the families they come from.  There is much more in Posner's opinion that shows his contempt for women who bear children without marrying and his strong preference for marriage over nonmarital relationships  (admittedly, and sadly, some LGBT supporters share this view).  And he even indicated that fewer pregnant women will have abortions if they know that married same-sex couples are able to adopt their children. (I did not make this up.)

Should we care about the reasoning Posner used to reach his decision?  Many would say no, that ending the marriage ban is all that matters.  But this reasoning goes to who we are and whose causes we link to our own.  I have written repeatedly about how much I detest the distancing of same-sex couples from single mothers, the repeated assertions that our children will grow up better than theirs.  Posner's reasoning belongs in that category.  Even for those who appreciate the outcome in this case, I wish everyone called the reasoning what it is -- misogynist, racist, divisive, and disrespectful (for starters).  And with no review by the US Supreme Court, it stands forever as the final word in the 7th Circuit.

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.

That was fast! Arkansas Supreme Court rules there is no mandatory ban in custody and visitation cases on the presence of a nonmarital partner

Seems like I just wrote about the case of Moix v. Moix.  Oh....I DID just write about it!  The Arkansas Supreme Court heard oral argument earlier this month, and two weeks later it ruled.  The trial judge was wrong, the court held, in finding that the state has a "blanket ban" on the presence of a romantic partner during visitation.  Instead, the primary consideration in every case is the best interests of the child.  Because it ruled for the father on this state family law ground, it declined to address the constitutional arguments made on the father's behalf.

The court did not provide much analysis other than the best interests test, but its reference to one particular case stands out.  In Taylor v. Taylor, the Arkansas Supreme Court reversed a trial judge who ruled against a mother who was living with a lesbian but was not in a romantic relationship with her.  The mother also testified that she was not herself a lesbian.  The trial judge feared that others would believe there was such a romantic relationship, but on appeal the court said that the outcome of the case could not turn on the false perceptions of others.  It would be easy to read the Taylor case as saying only that a mother can win as long as she isn't really a lesbian.  But the Moix opinion says more than that about Taylor.  It points out, accurately, the Taylor cited cases from other states for the proposition that "there must be concrete proof of likely harm to the children from the parent's living arrangement before a change in custody can be made...'Evidence-based factors must govern,' rather than stereotypical presumptions of future harm."  And those cases (although Moix does not explicitly say this) were cases in which the parent actually was gay or lesbian.  From this, I think it's fair to read Moix as requiring proof of harm before there can be a restriction on a parent's relationship with a same-sex partner.

Unfortunately for Mr. Moix and his son, the court remanded the case for further proceedings.  The trial judge made a factual finding that the partner posed no threat to the health, safety or welfare of the child and that there was nothing else that militated against the overnight visitation, but these findings weren't enough for the Supreme Court to simply remove the restriction.  Rather, the trial court is now to determine whether a restriction is in the child's best interests.  Let's hope the trial judge acts as quickly as the Supreme Court did.

Arkansas Supreme Court reconsiders ban on presence of unmarried partner during visitation

In 2011, the Arkansas Supreme Court issued a definitive blow to restrictions on unmarried couples, gay and straight, adopting children in Cole v. Arkansas.  The opinion was a landmark articulation of a right to sexual intimacy under the Arkansas constitution.  In a blog post later that year, I pointed out the inconsistency between Cole and numerous other Arkansas rulings preventing the presence of a parent's unmarried partner during the exercise of overnight visitation rights.  A new case squarely raising this latter issue, Moix v. Moix, has reached the Arkansas Supreme Court, where it was argued last week by stellar ACLU attorney Leslie Cooper.  (To watch the video of the oral argument, click this link and scroll down to archived videos from November 7, 2013).

John and Libby Moix divorced in 2004 after John realized that he was gay.  They had three children, but only one is still a minor -- 12 year old Ryan.  John began living with his partner, Chad, and had standard visitation with his children, including overnights, although John and Chad did not share a bedroom when Ryan was present.  After a violent incident between John and Chad in 2005, John agreed to daytime-only visitation.  Although the paperwork was completed and signed, and a court order resulted, the overnight visitation never stopped.  The two older children went to live with their father and Chad in 2008, during their senior year of high school.  Chad has a 16 year old son with whom he has regular overnight visitation.  In what I consider to be an uncommon situation, Chad's ex-wife testified that she had spent much time with John and Chad, was supportive of their relationship, had no trouble with her son being around them, and thought Ryan should be able to have overnight visits with his father.

John is a pharmacist and has struggled with drug addiction.  He twice lost his pharmacy license, most recently after a February 2010 DWI, after which he entered long-term rehab.  He regained his lisence in September 2011 and resumed visitation with Ryan, but Libby stopped overnight visits in January 2012.  In this action, John sought an increase in visitation and the ability to have overnight visitation with Chad present.

Libby is a member of a fundamentalist church and married a minister in that church in 2011.  According to John, Libby has told Ryan that gay people are going to hell.  Libby testified that John's homosexuality was not the main reason she was restricting overnight visitation.  She expressed skepticism about his recovery and concerns over some of his parenting decisions.  She did testify, however, that she believed John's relationship was immoral and against God's intention and that she did not believe that Ryan was emotionally prepared to deal with having a gay father.

From the transcript of the trial, it is evident that the issue of Arkansas's blanket ban on the presence of an unmarried partner was the principle issue from the beginning.  The trial judge said he was required to follow the law and policy of the state, and John's attorney referred to the case as headed to the state supreme court for review of the issue.  The attorney also raised the question of the restriction's constitutionality.

The trial court found it in Ryan's best interest to have more time with his father and so increased the visitation.  He also made a finding that Chad posed "no threat to the health, safety or welfare of the minor child" and that no factors other than John and Chad's unmarried cohabiting relationship militated against overnight visitation.  The court referred to the policy against such overnight visitation as "mandatory" and said the court was required to follow it, so the order requires that Chad not be present during any overnight visitation.  In a simple sentence with no analysis or citation to authority, the court stated that the mandatory policy survived constitutional scrutiny.

In 2010, a Tennessee appeals court ruled, for the second time, that there should no longer be an automatic restriction on the presence of a "paramour" while exercising custody or visitation.  I cannot imagine how the Arkansas Supreme Court can uphold such a "mandatory" rule.  I don't think they need to reach the constitutional claim; all they need to say is what almost every other court says -- that each case should be decided on its individual facts based on the child's best interests.  Given the judge's findings, that should result in an automatic lifting of the restriction.  But it sounded like at least one judge would send it back to the trial court for a new best interests hearing, in other words remand it for further proceedings.  That would be a completely unnecessary waste of time and money for this father, but at least it would clear the path for future parents in Arkansas to enjoy normal, unrestricted custody and visitation rights.

Indiana appeals court limits nonbio mom to visitation

I remember when the parentage of nonbio moms was so invisible to courts that the ability to obtain visitation rights after the end of the couple's relationship was considered a great victory.  The breakthrough case was In re H.S.-H.K. in Wisconsin in 1995.  The court set out a four-part test, and if the nonbio mom could prove each part and filed a court action soon after the bio mom denied her contact with the child, then she could get visitation rights.

Well, almost 20 years later, that result does not seem like much of a victory.  Is it better than the result in Debra H., leaving nonbio moms who are not married to the bio mom and don't complete second parent adoptions without any remedy at all?  Well, of course.  But increasingly, both statutes and court rulings confer parentage on the nonbio mom, giving her parental rights equal to that of the bio mom (e.g., California, New Mexico, Washington, Washington DC, Nevada).  And even without that, numerous states (including some notably "red" ones like North Carolina and Kentucky) allow the nonbio mom to obtain joint custody (or custody) when it is in the child's best interests.

Indiana looked to be one of such states from numerous appeals court rulings over the years.  But last week, in A.C. v. N.J., the Court of Appeals did a backtrack of sorts, reading a limit into prior cases and leaving the nonbio mom with the option of seeking only visitation.  The facts of the case were unremarkable and consistent with other typical scenarios (complete with donor insemination and the nonbio mom cutting the child's umbilical cord in the delivery room).  The couple lived together until the child was two and then the bio mom allowed regular visitation for another nine months.  When the bio mom terminated visitation, the nonbio mom filed for joint custody.

This ruling highlights why the proposed Model Third-Party Child Custody and Visitation Act, promulgated by the ABA Section on Family Law this past summer, is so off base.  The Model Act parties like it's 1995, to use a musical metaphor.  It basically instantiates the In re H.S.-H.K. standard and would limit nonbio moms to visitation.  The drafters may think they are doing a favor for the children of same-sex couples, but if so they are sadly out of step with the recent trends that recognize parentage or at least the right to joint custody for nonbio moms and dads in such families.  Had the language of the Model Act been proposed in 1996, right after the Wisconsin ruling, I would have jumped for joy.  Today it makes me cringe.  Although it would help families in states with terrible law (that's you New York and Maryland), it could easily slow the progress towards equal parenting rights which is spreading across the country.

The Indiana appeals court said it would await a definitive ruling from the state's Supreme Court before going farther than visitation rights. I don't know if this nonbio mom will seek review in that court, but when some parent finally does I hope that court can look at the family before it and see the obvious -- that the child has two parents.