Another Arkansas ruling against a mother with a same-sex partner

Two years ago the Arkansas Supreme Court, in Cole v. Arkansas, threw out the state's ban on adoption by unmarried couples (gay or straight) because such couples have a constitutional right under the Arkansas Constitution to have their nonmarital relationship.  It was a huge victory.  I have written since then about other Arkansas cases in which a parent has lost custody because of having a nonmarital partner, and it has happened again.  In Brimberry v. Gordon, the appeals court reiterated that trial judges can assess a parent's "morality" in front of the child.  The trial court in this case said that the mother's same-sex partner spent the night in her home and that the child climbed in bed with them in the morning.  This is what the trial court found inappropriate, and the appeals court agreed.

I do not get it. The same couple cannot be denied the adoption of a child on the basis of their nonmarital sexual relationship.  The child can be placed forever in their home as their child.  How can the identical behavior cause a mother to lose custody of the child since has raised since birth?  The court faults her "poor judgment" and "promiscuity," although there is no mention of more than one romantic partner and the poor judgment appears tied to the overnight visits when the child is there.  Supposedly her "lifestyle choices" not her "homosexual relationship" led to the custody denial, but the two are used interchangeably.  The trial judge had some concern about the mother's lack of employment or academic progress in college, and her leaving the child in day care, but if these were legitimate concerns they would need to stand on their own without concern about her same-sex partner, and the appeals court did not make that distinction.

The most common rule about nonmarital partners and custody is that the parent's sexual relationship must have an adverse impact on the child before it can be used against the parent (often called the "nexus" test).  In this piece I wrote earlier this year for UCLA Law Review Discourse, I explain that even this test is wrong.  A court should be able to take anything into account that harms a child; there is no need for a special rule for nonmarital partners.  But the Arkansas court in this case doesn't even give lip service to the nexus test.  How that can be in a state that constitutionally protects nonmarital relationships is an enduring mystery to me.

Texas lesbian mom ordered to stop living with her partner

By complete coincidence, just after I posted earlier this week about restrictions on the custody and visitation rights of gay and lesbian parents, an example of that very thing hit the national news. Carolyn Compton, the mother of a 10 and a 13 year old, and her partner, Page Price, were ordered to separate in order to comply with a provision in Compton's 2011 divorce decree that no unmarried romantic partner could spend the night when the children were present.  The judge gave Price 30 days to move out.  If she doesn't, the judge could award Compton's ex-husband custody of the children (although no coverage I have seen mentions that). Here is one report that focused on the potential unconstitutionality of the restriction, saying it was ultimately a question for the US Supreme Court.

But as I wrote in my previous post, the Constitution isn't the issue, and Compton is not going to win going down that route.  The issue is how the children are doing and what their relationship with Price is like.  According to an article in the Dallas Morning News, a "morality clause" banning unmarried overnight romantic partners is standard in several Texas counties.  Some accounts focus on the fact that Price and Compton cannot marry, but, as the article I recently published points out, the marital status of the couple should have no significance whatsoever.  The focus should be on the children.  If a parent remarries and the presence of the spouse is harmful to the children, the fact of the marriage doesn't solve anything and should not absolve the parent from an assessment of whether that parent's choices are good for the children.

For the record, I do believe restrictions on parents' sexual relationships violate their Constitutional rights, but no court in a custody or visitation case has ever ruled in favor of a gay or lesbian parent on Constitutional grounds. Plenty of courts have ruled for gay and lesbian parents by finding that the parent's relationship was having no adverse impact on the children.  A few years back, a Tennessee appeals court struck down an automatic provision against the presence of "paramours" (although the court had to do it twice before the trial court would comply).

In my previous post I pointed out that anything a parent does that harms a child should be considered in determining custody and visitation, and that nothing about having a nonmarital partner should be treated differently from any other decision a parent makes.  I wouldn't expect Texas to embrace precisely that principle, but it's not too much to expect that an appeals court might require an inquiry, with actual evidence, into the well-being of the children.  The couple has made a statement that Price's move will be disruptive and harmful to the children.  I can believe it.  I hope an appeals court tells the trial judge he has to make an assessment about this family and these children rather than enforce a blanket provision against the presence of unmarried partners.  Even in Texas, I believe that's possible.

Kansas nixes second parent adoption

A Kansas appeals court has ruled that the state does not allow second parent adoption.  The case decided earlier this month, In re I.M., involves heterosexuals. I.M.'s mother married J.M. when I.M. was a toddler.  They raised I.M. and a biological child they had together for three years and then they divorced.  For the subsequent three years, even though I.M's mother remarried, J.M. had parenting time with both children.  I.M. refers to him as her father.

J.M. filed to adopt I.M.  The mother consented, on the condition that her rights not be terminated.  (I.M. had an identifiable biological father, but J.M. alleged that his consent was not necessary because he had had no relationship with I.M.).

In a short opinion, the Kansas Court of Appeals ruled that the statute did not permit such an adoption.  Because J.M. was no longer married to I.M.'s mother, his adoption of I.M. would terminate the mother's parental rights. The court acknowledged that some states do allow such adoptions but refused to interpret Kansas law to do so.

There is no way to distinguish this case from a second parent adoption involving a same-sex couple.  So unless the Kansas Supreme Court some day rules otherwise, there will be no second parent adoptions for children of gay and lesbian parents in Kansas.

Heterosexual mother behaving badly

In my circle of LGBT family lawyers, we talk about LBBs, lesbians behaving badly.  This is customarily a shorthand reference to a biological (or legal adoptive) mother who deprives her child of a relationship with her ex-partner, who the child views as also being a parent.  Well, I always say that whatever happens in our families happens in straight families, only more often (since there are more of them).  And a case from Illinois in the last couple of weeks reminds me how true this is.

The family in the case, In re Scarlett Z-D, consists of Jim and Maria and the daughter that Maria adopted as a 3 year old in Slovakia in 2003 while visiting family there.  Jim did not adopt with her because the couple was not married, but he went to Slovakia several times, and was involved in and paid for the process, which took a year.  In 2004, Maria and Scarlett returned to the US and lived as a family with Jim.  For four years, Scarlett called Jim "daddy" and Maria held him out as Scarlett's father.  He did not adopt her, however, and in fact Maria never did a US adoption of her. (This is not required but parents of international adoptees often do it).  It also appears from the initials that comprise Scarlett's last name in the caption of the case that Maria gave the child a last name that hyphenated her name and Jim's name.

When the couple's relationship ended, you guessed it, Maria cut Jim out of Scarlett's life.  Jim filed both a parentage action and a request for custody and visitation rights.  There was a trial that established the close bond between Jim and Scarlett and the harmful consequences of removing Jim from Scarlett's life.  The trial judge was completely sympathetic to Jim's argument but felt bound by the law to dismiss his case. Jim appealed, and the appeals court also said that under Illinois he was not a parent and lacked standing to even bring an action concerning Scarlett's custody.

Illinois is one of the states whose appellate courts have, in my opinion, overread Troxel v. Granville. By that I mean that the courts have attributed more rights to a legal parent than I believe Troxel requires when it comes to the question of court-ordered visitation by someone who is not a legal parent but has functioned as one.  Plenty of other states have found that a person who has fully functioned as a parent to a child, with the approval of the child's legal parent, can get visitation with that child, or even custody, without running afoul of Troxel.

The Scarlett Z-D court repeated pronouncements from other Illinois cases about Troxel but also held the neither Illinois statutory law nor Illinois common law allow a person in Jim's position to petition for custody or visitation.  The court did indicate that the legislature could fix this problem through statutory reform.

And that's where the matter stands in Illinois.  Lesbian legally unrecognized moms have faced this problem there.  And in a particularly horrendous case an FTM transgender father lost all contact with the children his wife gave birth to as a result of jointly planned assisted conception because the court ruled he was legally female, therefore the marriage was invalid, therefore he was not the children's father.

The Illinois legislature needs to act to end such tragic decisions that rob children of parental love and support in this way.

Another court misapplies Troxel v Granville and so another nonbio mom loses in Texas

Last month (while I was on my blogging hiatus), the Texas Court of Appeals (Ninth District) ruled against Dana Ruppert's efforts to retain a relationship with the child born while she was living with the child's biological mother, Stephanie Wells.  The facts in the opinion are sparse, but the law is unmistakable.

The opinion reports that the couple began living together before the child, M.J., was born and that their relationship ended in April 2010 with the nonbio mom moving out.  (No indication when the child was born or his age).  The couple did divide care of M.J., and in May they agreed in writing that each would have certain periods of time with him.  The next month Wells stopped the visits, but she allowed them to resume in November 2010.  Between November 2010 and August 2011, the child lived with Ruppert about 50% of the time.  After Wells again stopped the contact, Ruppert filed a court action in November 2011 requesting sole custody and alleging that Wells was abusive towards the child.  The trial court held a hearing.  It did not find that Wells was unfit.  It awarded temporary primary custody to Wells but did give Ruppert weekends and 2012 spring break with M.J.  The appeals court summarized the testimony as showing that Ruppert "filled a role in co-parenting" M.J. when Wells allowed it.

The trial court allowed Ruppert's claim to proceed because it ruled that, as required by Texas law, Ruppert exercised "actual care" and "actual possession" of M.J. for at least six months, ending no more than 90 days  before Ruppert filed for custody.  But the appeals court said she did not have actual "control" of the child, also required, because Wells could change her mind at any time and because Wells made decisions about M.J.'s school.  Wells had given Ruppert written consent to make medical decisions for M.J., but the appeals court said this did not amount to "control" because she never actually had to make any such decisions.

Most disturbing as a legal matter, the court believed its interpretation of the Texas statute was required by the US Supreme Court's ruling in Troxel v. Granville.  I have written about courts' interpretations of Troxel in numerous posts.  Here is an example of how the Wells court gets it wrong.  "While the desirability of compelling Wells to allow Ruppert a right to visitation might be debatable, when viewed from the child's point of view, Troxel does not allow a court to second-guess a fit parent's decision."

Wrong.  Troxel involved grandparents who had never functioned as parents of the children at issue.  The Supreme Court said there were no "special factors" giving a trial court the power to decide that the children's best interests would be served by visiting with their grandparents.  The situation of a same-sex couple raising a child together from birth is just the sort of "special factor" that distinguishes it from Troxel. Fortunately, many courts have acknowledged this distinction.  But many miss the point entirely and treat Troxel as a decision that draws a bright line around a biological or adoptive parent and allows no court challenge to her custody or decision about visitation unless she is unfit.  That's what theNinth District Texas Court of Appeals has done, and the children raised by same-sex couples in the Beaumont, Texas area are the worse off for it.

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.

Tennessee adoption ruling bodes ill for same-sex couple second parent adoption

Court rulings that affect same-sex couples raising children often come in the context of heterosexual families. When you think about it, that's inevitable, since there are so many more heterosexuals and they, too, live in a variety of family forms. Well, a decision from the Tennessee Court of Appeals last month, In re Shleby L.B., falls into this category, and the news is not good. (For a Colorado ruling involving heterosexuals that bodes very well for same-sex couples there, read this post from last April).

A child, Shelby L.B., was born to a married heterosexual couple in 1999. When the couple divorced two years later, the child went with her mother and the father had no visitation rights but could petition for them in the future after completing alcohol and drug rehab. The mother later became friends with a 42-year-old man, J.E.N, who began acting as a father to the child when she was five years old. In 2008, the mother and J.E.N. filed a joint petition to terminate the parental rights of the father and allow J.E.N. to adopt the child. The petition alleged that the child called J.E.N., "Dad," and that he supported her financially and spent a substantial amount of time with her forming a parent-child bond. Shortly thereafter, the mother and J.E.N. filed an amended complaint including the fact that J.E.N. had exercised physical custody of the child for substantial times and that the child was presently living with him during the school week. There is no indication that the mother and J.E.N. ever lived together or that they had a romantic relationship.

The father hired a lawyer, opposed the petition, and asked for visitation with the child. Subsequently, he filed a motion to dismiss the petition, arguing that the parental rights of both parents must be terminated before anyone other than a stepparent can adopt a child. The trial court ruled in the father's favor, and the Court of Appeals affirmed.

Here are the Tennessee laws that doomed the petition filed in this case. A biological parent cannot file a petition to terminate the rights of another parent, so the mother could not file to terminate the father's rights. That left J.E.N. He could file an adoption petition, but according to the court's interpretation of the Tennessee statute, he could only do so if he were seeking to terminate the rights of the mother as well as the father. The only exception in the statute is for a stepparent adoption, and since the mother and J.E.N. were not married, he was not the child's stepparent.

This ruling likely dooms any second parent adoption. That's because, of course, the biological parent seeks to retain, not surrender, her parental rights when her partner adopts. The only remaining possibility might be a joint petition by a same-sex couple in which the bio mom gives up her rights as a bio parent but simultaneously gets them back as an adoptive parent. A single person may adopt in Tennessee, but it is not certain that the court would say this means two single persons may adopt together.

I wish we knew more about these people. I am curious about the relationship between the mother and J.E.N. There are plenty of examples of LGBT co-parenting arrangements between other than romantic partners. Since adoption requires individualized assessment of a child's best interests, I believe these arrangements should be able to be formalized through adoption. Plus I realize that I cannot even be certain the adults in this case are heterosexual. I know the mother was once married to a man, and I know there is nothing about her sexual orientation that is reported in the opinion, but it's not impossible that her friendship with J.E.N. is not sexual because one or both of them is gay. (It is also possible the two have a sexual relationship; all we know is that they are not married to each other and they appear not to live together). So I am curious, but in the end the issue should be whether the adoption is in the child's best interests, and that is what the court refuses to address because it says such an adoption is impossible.

This case is also a reminder that when we lose second-parent adoption it is not inherently an anti-gay ruling; it may simply be a narrow reading of an adoption statute. Since adoption customarily does terminate the rights of the existing parents, statutes were written in a way that produces that result automatically. When a court reads such a statute to prohibit a parent retaining rights while adding a second parent, that may simply be reluctance to construe a statute beyond its literal wording. Of course many state courts have read their adoption statutes broadly enough to encompass second parent adoption without terminating the first parent's rights. Thank goodness for that.

Adar v. Smith continued...why two gay dads still have no birth certificate for their son

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarried biological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

Fifth Circuit en banc ruling in Adar v. Smith denies birth certificate to child adopted by two men

Late today, the Fifth Circuit Court of Appeals issued an en banc ruling in Adar v. Smith. As I noted in several earlier posts about this case, Oren Adar and Mickey Smith jointly adopted a child in New York. The child was born in Louisiana, and the couple sought an amended birth certificate listing both of them as parents. Louisiana refused to issue the birth certificate, citing its own law prohibiting an unmarried couple from jointly adopting a child. The couple is represented by Lambda Legal, whose senior staff attorney Ken Upton argued the case in January. The couple won in the trial court and in a Fifth Circuit panel opinion. This loss comes after rehearing by the entire Fifth Circuit.

Tomorrow I will write more about the court's ruling that the couple could not sue the state for violating the Full Faith and Credit Clause. Tonight I will just note that the court ruled against the argument that the state is denying the child equal protection of the law by refusing to issue a birth certificate based on the marital status of his parents.

Citing the despicable 11th Circuit Lofton ruling upholding Florida's ban on adoption by gay men and lesbians, the majority said that Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." It then cited one 2002 report for the principle that marriage is associated with better child outcomes than cohabitation because it is more likely to provide stability. Because this provides a rational basis for denying unmarried couples the opportunity to adopt, it therefore is sufficient support for denying a child adopted by an unmarried couple a birth certificate with two names. Both the logic and the sentiment here are appalling. This reasoning (or lack thereof) stands in sharp contrast to that of the Arkansas Supreme Court, which just last week ruled that the state's ban on adoption by anyone living with an unmarried partner was unconstitutional. The Adar v. Smith Fifth Circuit ruling also dismissed almost out of hand the argument that the state is violating the constitutional prohibition on discrimination against nonmarital children by denying a child with unmarried parents a birth certificate reflecting his legal parentage -- something granted routinely to children with married parents.

There's a strong dissent. And there is a contrary case from the 10th circuit five years ago, also argued by Lambda Legal. I hope Lambda asks for review by the US Supreme Court. The "circuit split" raises the odds that the Court would hear the case.

Wisconsin court leaves stand a parentage order for a nonbio mom but precludes such orders in the future

The most horrific part of last month's North Carolina Boseman v. Jarrell opinion against second-parent adoption was that it said the court that granted the adoption lacked "subject matter jurisdiction," which means that the order was void, along with all second-parent adoption orders, the moment it was granted. That wiped out every second-parent adoption in the state.

Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.

Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.

When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.

The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.

But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.

It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.

And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month). The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them. This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son. The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents. The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support. These are cruel results.

I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am. There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

New Mexico court ruling on lesbian mom likely to have limited impact -- but it's still dead wrong

New Mexico is the only jurisdiction other than DC that grants parental status to a person (male or female; married or not married) who consents to a woman's insemination with donor semen with the intent to parent the child thereby conceived. That means that for cases beginning this year, where conception takes place through donor semen, both members of a lesbian couple are a child's parents if they have both signed an agreement concerning the insemination or if they have both received the child into their home and held the child out as their own.

This law was not passed in time to help Bani Chatterjee and her daughter, who this week lost their right to a parent-child relationship in a 2-1 ruling from the New Mexico Court of Appeals. And because the child was not born to Chatterjee's partner, but was rather adopted by her, the law would not have made Chatterjee a parent in any event.

The court has all the facts it needed to consider Chatterjee a parent. Chatterjee and her partner, Taya King, were together for 15 years, beginning in 1993. In 2000, they travelled to Russia together to adopt a 13-month-old child, but only King completed a legal adoption since same-sex couples cannot adopt there and because there was prejudice against Chatterjee on the basis of her race. For the subsequent 8 years, the couple raised the child together as two mothers. Then Chatterjee moved out and, after an initial period of allowing visitation, King stopped all contact. Chatterjee filed a petition to establish parentage.

All three judges agreed that the New Mexico parentage statute did not allow Chatterjee to be declared a parent. Its previous version of the Uniform Parentage Act allows a man to be presumed a parent if he "openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child." It also reads that "insofar as practicable, the provisions of the [UPA] applicable to the father and child relationship apply" to determining a mother-child relationship. Since Chatterjee could meet that test, she asked to be declared a parent. It may be understandable for a court to hold that these provisions do not apply at all to a child adopted by one parent. But the majority went further and said they would not apply to any woman's attempt to be declared a parent. This is a ruling in direct contradiction to the California cases interpreting identical language. But because New Mexico's current UPA explicitly makes a woman a parent of her partner's biological child if the couple consented to donor insemination, this section of the court's reasoning is superceded by the new statute for any child born to a woman's partner and conceived using donor semen.

The majority then dismissed Chatterjee's claim to parentage based on various equitable theories. This is where the dissenting judge parted ways. Even though the New Mexico appeals court ruled in favor of a nonbio mom in 1992, becoming one of the first states to do so, this court decided that neither equitable nor psychological parentage gave Chatterjee the standing to request custody of her child. The dissenting judge reasoned that if Chatterjee could prove the elements of psychological parenthood, including King's fostering of a parent-child relationship between Chatterjee and the child, then Chatterjee should be able to argue for custody.

Chatterjee and her child do get a consolation prize. All three judges agreed that she could request visitation rights and that visitation rights could be granted without violating King's constitutional right to raise her child. King relied on the Supreme Court case of Troxel v. Granville, which overturned a ruling granting visitation rights to grandparents. The New Mexico court, however, distinguished that case on its facts and rightly held that Troxel does not require a court to find a legal parent unfit before it awards visitation to another party.

The good news in the case, as a practical matter, is that the ability to get court-ordered visitation gives a mother in Chatterjee's position enough bargaining power to get an agreement with a legal parent for a continuing relationship with the child. The states that preclude any court-ordered visitation give the legal parent the unilateral power to cut off all contact, even in a case like this where the child is 10 years old and has been raised by both women since her adoption as a toddler.

And, as I said at the beginning of this post, for lesbian couples in New Mexico using donor insemination, full parentage, not just access to visitation, is established for a nonbio mom. For those who adopt, however, as this couple did, this case will remain the law unless Chatterjee appeals to the New Mexico Supreme Court and gets a reversal.

Oregon Tax Court ruling points the way towards compulsory marriage

Last month the Oregon Tax Court ruled on the constitutionality of an administrative rule allowing same-sex but not different-sex partners to exempt from state tax the imputed value of their domestic partner health insurance benefits.

The challenge was filed by Yvonne Haldeman, a taxpayer with an unmarried different-sex partner who, in 2007, tried to subtract $5313 from her gross income because that was the imputed value, for federal tax purposes, of the health insurance provided by her employer for her partner. (The details of her specific situation are in the opinion of a tax court magistrate who heard the case in 2008).

Haldeman argued that the rule violated the Oregon Constitution's privileges and immunities clause which "forbids inequality of privileges or immunities not available upon the same terms...to any class of citizens." She argued that the class of citizens of which she was a member was unmarried different-sex partners. The background for this issue is the 1998 Tanner case, in which the Oregon appeals court found it unconstitutional to grant health insurance benefits to the spouse of a married public employee but not to a same-sex partner who could not marry the employee. The Oregon Attorney General subsequently concluded that it would violate the state constitution to permit a spouse, but not a same-sex domestic partner, to subtract the value of the health insurance benefit from gross income for tax purposes. The administrative rule at issue defines "domestic partner" as someone under no legal disability to marry the other person but for the fact that each is the same sex and who would marry that person if Oregon law permitted it.

Haldeman argued that the class for purposes of constitutional analysis was unmarried different-sex partners vs unmarried same-sex partners. The Tax Court rejected this, specifically because the rule applied only to those same-sex partners who would marry if they could. Therefore, the Tax Court found the class to be married vs unmarried persons. Tanner found sexual orientation to be a suspect class. It also determined that immutability was not an absolute requirement for suspect class status; rather a class is suspect if its characteristics are "historically regarded as defining distinct, socially recognized groups that have been the subject of adverse social or political stereotyping or prejudice." The Tax Court then determined that marital status was not a suspect class and that neither single status nor marital status has resulted in routine targeting for adverse treatment over the years. The opinion states that Haldeman did not argue that her class had historically suffered prejudice or stereotyping. Rather she argued that the very rule she challenged put her through "adverse social and political prejudice," and the Tax Court disregarded this, stating that she "does not elaborate on this assertion, does not contribute any evidence of her assertion, and does not cite to any case law supporting an argument of mistreatment of unmarried persons."

As a result of the above, Haldeman was not in a suspect class. Applying the rational basis ("any conceivable state of facts") test, the Tax Court found that the rational basis was avoiding the litigation that would likely have followed after Tanner had the state continued to include the value of the benefit in the gross income of an employee with a same-sex domestic partner. The Tax Court did not adopt the reasoning of the magistrate in his 2008 ruling that "it was rational for the legislature to assume that the financial benefit inuring from the exemption provided an incentive for people to marry." Yet the reasoning it did use seems not credible to me. How can the purpose of a rule be avoiding litigation, as opposed to some substantive benefit provided by the rule? As it turned out, the rule did not avoid litigation; after all, Haldeman sued.

I applaud the Tax Court's implicit (unfortunately) rejection of promoting marriage as the legitimate interest furthered by the distinction in the rule. But I question the part of its reasoning that disregards precisely the prejudice and stereotyping that unmarried couples have historically suffered. Once immutability is not a prerequisite for determining a suspect class, there is a strong evidence of the longstanding prejudice against unmarried couples.

Of course this issue feeds into the argument I have been making over many years. The arguments for access to marriage for same-sex couples glorify marriage. They diverge from the arguments made in the past that marriage should not determine who gets benefits. In 2000, Lambda Legal filed a friend of the court brief in 7th Circuit Court of Appeals in support of Milagros Irizarry, a heterosexual city employee denied access to domestic partner health benefits available to same-sex couples. Irizarry lost, but Lambda Legal entered the case even though gay and lesbian employees were receiving the benefits. Lambda Legal took a position against making marriage compulsory for straight couples. I doubt the organization would have assisted Yvonne Haldeman in her case in the Oregon Tax Court.

In fact, Lambda Legal is not representing the different-sex domestic partners who lost their benefits in Arizona. You could read all of Lambda's publicity about the case, Collins v. Brewer, without ever realizing that different-sex domestic partners were receiving benefits and that those benefits were also terminated. In fact, this Lambda press release describes Arizona's action as "eliminating health benefits for gay state employees" when all state employees lost their domestic partner benefits. The University of Arizona recently notified its employees that a court injunction issued in July does not prevent the termination of benefits to different-sex partners.

The fight for domestic partner benefits started in the 1980's as a fight against mandating marriage before an employee could protect the health of his or her family. All the early domestic partner benefits (think The Village Voice and Ben & Jerry's) were open to unmarried couples of any gender. A decade ago, Lambda Legal endorsed that position. Apparently it no longer does.

I'm reminded all the time by leaders in the marriage equality movement that they are fighting for the choice to marry. And I consistently reply that there is no "choice" when marriage is the only way to obtain economic protections for a family unit. Both Haldeman and Collins v. Brewer prove my point.

Why can't a child have one parent?

The opinion that's the subject of this post is not about children of gay or lesbian parents. The child, Mariano, was born to married heterosexual parents in January 2008. But it's a case that matters because it stands for a proposition that makes it impossible for any woman -- gay or straight -- to be the single parent of a child when there is a man who could be identified as the child's father. Here's what happened in this case, decided last month by the Massachusetts appeals court.

The couple had only been married a month when Mariano was born. Seven months later they split up. The tried to reconcile the next month, but it didn't work. The mother filed for divorce when Mariano was eight months old, in September 2008. That was the last time the father saw him. While the divorce action was pending, the mother filed a petition to adopt the child, accompanied by the father's surrender of parental rights so that the child could be adopted. The parents each had counsel and counsel was appointed for the child.

The 23-year-old father, who worked on and off, testified that he had discussed the adoption surrender extensively with his family and his attorney. He said he felt no bond with the child and that he thought continued association with the mother would be filled with animosity and would be harmful to the child. The mother, a 24-year-old hairdresser who lived with her parents, testified that the father had little to offer the child and that she was providing the child with "ample health, safety, happiness, and affection."

The trial judge found that the mother could provide "love, nurturance, and security" for the child, but dismissed the adoption petition. He concluded that maintaining a link to his "biological identity" was in the Mariano's best interests. The appeals court affirmed. It cited the financial benefits to Mariano, most immediately child support. The court said that Mariano faced a childhood "with a seemingly thin margin of economic safety" and that the adoption would heighten the risk that the child would need public assistance. The court also cited access to public benefits and inheritance.

The appeals court then noted the child's need for parental "consortium," including the need for "closeness, guidance, and nurture....In this instance," the court wrote, "the child has an important interest in the reservation of the father's option for a change of mind or heart over time. A young parent in the emotion of divorce is poorly situated for an irrevocable decision of severance from a biological child." The father had indicated some willingness to visit the child away from the mother and her family, leading the court to characterize his surrender as somewhat equivocal.

It's important to note that the appeals court assumed, and no one otherwise argued, that a mother could adopt her own child. (In fact, this is what happens in second-parent adoptions in Massachusetts; the bio mom and nonbio mom file together to adopt the child, so the bio mom is in fact adopting her own child). And if there had been a second parent in the wings ready to adopt, through the mother's remarriage for example, the adoption would have gone forward. So the court's problem is leaving the child with only one parent, even though single people are permitted to adopt children.

So imagine the mom is a lesbian who conceives with a known donor. The Massachusetts donor insemination statute applies to married couples only, so it plays no role. It's clear that if the mom has a partner the couple can do a second parent adoption that terminates the donor's parental rights. But after Mariano it looks unlikely that she has any mechanism for assuring that she is the only legal parent of the child, even if that was the intent all along and is what the donor also wants.

I know this issue is particularly tough when the family is economically marginal. The appeals court was explicit about its concern that the state might have to provide financial assistance to the child. But I believe the mother should be entitled to make the call that on balance she and child will be better off without the father and his money. The law does not require her to file for child support unless she receives public assistance. So it does allow her to make that call in most instances. I'd like to see a complete restructuring of the way we provide financial support for children from public funds -- a much longer discussion than what can go in this post. And if I thought the holding of this case would be limited to circumstances where a judge finds a high likelihood of the need for public assistance, I would feel slightly better about it. (There are not enough facts in the opinion to know whether such a test could be met here).

This was not a case in which the father was pressuring the mother to do something so he would not have to support the child. The law should not permit that. A mother who wants both the father's involvement and his money should be able to use the court system to make that happen. But when she doesn't want it, and when the father agrees, structuring the family so the child has one legal parent should be permissible. For lesbians and heterosexual women.

Alabama Supreme Court ducks the question of jurisdiction to decide parentage of child of same-sex couple

On June 30, the Alabama Supreme Court vacated all the lower court orders in the case of Ex Parte N.B., an action filed by a bio mom, N.B., to be declared the sole parent of the child she bore in California while in a same-sex relationship. A California court order that A.K. is the child's legal parent (pursuant to California's interpretation of its Uniform Parentage Act, discussed in this post) remains in effect, but the child is still with the bio mom in Alabama and presumably A.K. must now initiate a process to gain recognition of that order by an Alabama court before she will actually be able to see her child.

The facts are ordinary enough. N.B. and A.K. were partners in California. In April 1999, N.B. bore a child conceived through donor insemination. The couple's relationship ended five years later, and the next year N.B. moved to Alabama with the child. The bio mom then married a man. (The bio mom is represented by Liberty Counsel).

Less than six months after this move, the nonbio mom filed a parentage action in California. Under ordinary child custody jurisdiction rules, a child's "home state" is the exclusive jurisdiction in which a custody action can be filed. When a child moves, the new state of residence does not become the child's "home state" until the child has lived there for six months. Thus, California had exclusive jurisdiction at the time to issue a custody order. Nonetheless, N.B. subsequently filed an action in Alabama to be declared the sole parent of the child. Her pleadings informed the court of A.K.'s actions in California, but A.K. was not made a party or served with the court papers, and she did not appear at the hearing. The trial court ruled in her favor of the bio mom in an ex parte proceeding (meaning no other party was heard). The Alabama appeals court reversed that ruling in 2008, citing the court's lack of jurisdiction because of the California proceedings. (The ruling was similar to the many rulings from the Virginia courts in the Miller-Jenkins case, which I've written about here.)

The Alabama Supreme Court did not address the custody jurisdiction issue at all. Instead it ruled that the bio mom should have notified the nonbio mom of the original proceeding in the Alabama juvenile court. Her failure to do so meant neither that court, nor the appeals court, nor the Supreme Court, could hear any issue raised in the case. The Court ordered all judgments in the case vacated, essentially wiping the case off the face of the earth as though the four years of Alabama litigation had never existed.

The ruling is an outrage. Of course an adverse party is entitled to notice of a proceeding. But the nonbio mom did get involved in the case seven months after the trial court's first order. A.K. asked that the order be set aside, lost, appealed, won the appeal, and then defended against N.B.'s appeal in the Alabama Supreme Court. Wiping out all the previous court orders without ruling on the merits of the jurisdictional issue means the case must start from scratch in Alabama...where the question of jurisdiction, now that the child has lived in Alabama for five years, will arise once more. For all practical purposes, N.B.'s efforts to remain a parent to her child are dead.

As if that wasn't bad enough, the Alabama Supreme Court threw in for good measure a paragraph quoting the state's Defense of Marriage constitutional amendment, with the comment that "questions regarding the judgment of the California trial court and its enforceability in Alabama may exist in light of the unequivocal nature of Alabama public policy on the issue presented by this case." In other words, the court is saying, beware other nonbio moms in Alabama; your parentage orders from elsewhere may be worth nothing here. (This in spite of the fact that the California parentage order was not based on the couple's relationship but on A.K.'s relationship with her child.)

Then again, the court did not actually hold that. It's what lawyers call dicta, language that is unnecessary to the actual ruling in the case which may therefore be disregarded in subsequent cases. We can only hope.

Michigan Court of Appeals blocks nonbio mom's efforts (updated)

Just a few months ago, I wrote about the Michigan trial court ruling in favor of nonbio mom Renee Harmon's efforts to maintain a relationship with her three children. Well, this week the Michigan Court of Appeals reversed that trial judge in a "peremptory order," without even receiving briefs on the issue from the lawyers. The Court ruled that only a biological parent, adoptive parent, or husband of a biological mother can file for custody under Michigan law.

The order cites as support a case in which a man who believed himself to be and held himself out as the father of two children, but was not married to the children's mother, was denied the ability to assert paternity under an "equitable parent" theory. The Michigan Supreme Court held that the doctrine of "equitable parent" would apply within marriage only. By extension, therefore, the doctrine could not apply to Renee Harmon.

We've seen states in which caselaw acknowledging nonmarital, nonbiological fathers is extended to nonbiological mothers. The California case law that establishes parentage for nonbio moms, for example, built on a previous case establishing the parentage of a nonbiological, but nonmarital, father who received a child into his home and held the child out as his own. But Michigan makes marriage the dividing line, even though this cannot make any difference to a child who knows someone as a parent all his/her life. It's wrong for a child with a nonbiological father, and equally wrong for Renee Harmon's children.

Texas rebuffs nonbio mom...in spite of previous court order with bio mom's consent

Sheila Haley and Charlena Renee Smith went to court in 2002, when their twin children were four months old, and obtained the equivalent of a joint custody order giving them both rights to the children. Those children were born to Smith. Haley then bore a child using the same semen donor. When the couple split up in 2008, Smith denied Haley access to the twins and got a court order declaring the earlier joint custody order void because there wasn't any real dispute between the parties at the time. (Also it appears that they should have waited until the children were six months old to file, although I doubt that would have made a difference to the court.) (Background to the case here).

Well the Texas appeals court last month rebuffed Haley's efforts to remain connected to the lives of her children. The appeals court ruled that Haley lacked standing under the relevant Texas statute because, at all the times she was parenting the children, their bio mom, Smith, was also caring for them. This case sets up a split in Texas over this issue. (See my post on a ruling from a different court of appeal in favor of the nonbio mom). That means the Texas Supreme Court is likely to have the last word, and its ruling on this issue will be the law all over Texas.

This latest appeals court ruling just refused to see the difference between planning for and raising children together as two parents and a third party helping a parent raise her children. The court refers to a case in which grandparents were denied standing even though their grandchildren had lived with them, because the children's parents were also living in the home and caring for them. But that situation is completely different from the typical lesbian couple planning for and raising children together. Haley and Smith appear to be such a typical lesbian couple.

The ruling is primiarily based on Texas statutes concerning who may file for custody/visitation, otherwise known as standing to file; without standing a court does not even hear evidence about the well-being of the children. But the court also suggests that the constitutional right of parents to raise their children is violated if it is too easy for third parties to file for custody. This is also an issue other courts have considered. I especially like the rulings in past few months from Kentucky and California. Haley should be considered a parent, in which case she would also possess the constitutional right to raise her children. Had the children been born in the District of Columbia under our current law, both women would be the legal parents of these children.

Some Texas courts do grant second-parent adoptions. But Texas is also the land where by state statute an adopted child's revised birth certificate cannot list the names of two mothers or two fathers, even when a court in another state has granted a second-parent adoption. I'm not too optimistic about how the Texas Supreme Court will rule on this issue...

New York court fails the children of same-sex couples; don't be fooled by press reports to the contrary

Debra H. is the mother of her six-year-old son, a child she raised with Janice R,. her ex-partner who is the child's biological mother. So ruled the New York Court of Appeals today (and that's the highest court in NY, so their decision is final). For that reason, press reports, at least the early ones, refer to the opinion as expanding the rights of gay parents.

Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.

New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.

The New York court had other options. The relevant statute allowed a "parent" to file an action for custody or visitation. The statute did not define "parent." There is no universal definition of what makes someone a legal parent. That has always been a matter of law, often decided by courts. In fact, it is the job of courts to interpret the words in statutes. The increased use of assisted reproductive technologies, for straight and gay people alike, has challenged courts to find an appropriate definition of "parent" when genetics, gestation, intent, and function are divided up among multiple individuals. The New York court was simply not up to the challenge.

Instead, the majority extolled the value of "bright line" rules. But I have news for those judges: The brightest line rule of all is the rule that a man is the father of the children born to his wife and no other children. That was, in fact, the rule for centuries. In 1972, the US Supreme Court said it was an unconstitutional rule, and specifically said that there are "higher values than speed and efficiency." In California, a man or a woman who receives a child into his/her home and holds the child out as his/her own is presumptively a parent. In Kentucky, a child has a second mom if "the legal parent has voluntarily chosen to create a family unit and to cede to [that person] a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child." In Oregon, a woman who consents to her partner's insemination with the intent to be a parent of the resulting child is a parent of that child. Those are all court rulings reflecting the reality of the lives of the children involved, not some fictional "bright-line" rule.

New York does not have marriage, civil union, or statewide domestic partnership for same-sex couples. Responding to the decision today, Empire State Pride Agenda included the following in their press release: "This case demonstrates why New York State needs to pass marriage equality legislation." No it does not. Nothing should be proposed that would further divide children of married same-sex couples from children of unmarried same-sex couples.

This case demonstrates that the legislature needs to pass a law along the lines of the DC or New Mexico parentage acts or the Delaware de facto parent statute. DC also has a de facto parent statute that does not create parentage for all purposes but does allow someone in Debra H.'s position to obtain custody or visitation (and pay child support). I hope ESPA lobbies hard for such measures and leaves marriage out of it.

One of the odder aspects of today's ruling is the companion case of H.M. v E.T., concerning the obligation of a nonbio mom to pay child support. The majority ruled that the Family Court does have jurisdiction to hear a child support action, even though the statutes refer to "parents" supporting their children. The court did not actually rule that the nonbio mom in that case was a parent; it simply said the Family Court could consider the matter. It is in Debra H. that the court hints that the doctrine of equitable estoppel, a concept based on not allowing someone to walk away from circumstances that s/he created and others relied upon, can create a support obligation. Yet in Debra H. the court explicitly rejected equitable estoppel as the basis for continuing a child's emotional relationship with a nonbiological parent through custody or visitation. It makes little doctrinal sense, and even less sense to a real, live child.

The New York legislature has to act. If it doesn't, it will have the suffering of countless New York children on its hands.