Florida: A sperm donor is not a parent -- so far, so good. But a nonbio mom is not a parent, and that's the real problem

In an opinion rendered yesterday in A.A.B. v. B.O.C., a Florida appeals court has reiterated that a sperm donor is not a parent.  That's what the Florida statute says, and that's what a previous appeals court held more than a decade ago.   A.A.B. applied that statute to find that the trial court was therefore wrong to rule that B.O.C. was the father of 12-year-old C.D.B. in spite of the oral agreement of the parties that he was merely a donor.  The appeals court rightly found no distinction based on the fact that the parties performed the insemination at home and not through a doctor.

That's the so far, so good part.  The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).

The real problem, however, is lurking in the facts of the case.  B.O.C. is the brother of A.A.B.'s former partner, S.C.  S.C. and A.A.B. split up when their child was three.  They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child.  Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C.  In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.

So S.C. could not file for custody, and so she pursued a different legal avenue.  Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.

This case reminds me of a different series of all too common cases, not in an LBGT context.  Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights.  The law makes her relinquishment irreversible.  So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption.  (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).

As I read all those cases, the real issue is that the mother changed her mind.  But some states are so quick to accept irreversible relinquishments that she has no recourse.  In my mind, that's the real problem in those instances.  I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child.  And I say this as an adoptive parent, so it's not that I think adoption is bad for children.  Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.

In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse.  So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child.  And it's that lack of recourse that's the problem in Florida.

Giving B.O.C. parental rights would have been wrong.  If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART.  But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents.  All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.

It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child.  But the ruling handed down yesterday doesn't raise that issue, and it should stand.

And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time.  They could do it now and that would solidify their family.  But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child.  Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.

What's the matter with Kansas? NOTHING if you are the child of a lesbian couple

This is how parentage should be determined. The Supreme Court of Kansas ruled yesterday, in Frazier v. Goudschaal, that two children born through donor insemination to a lesbian couple are the children of both parents.  The court interpreted Kansas parentage law to create presumptive parentage for a woman who "notoriously or in writing" recognizes parentage of the child.  The statute itself says "recognizes paternity," but because Kansas is one of the states that incorporates the paternity provisions into determinations of the mother and child relationship "insofar as practicable," the court applied them to the petition of Marci Frazier, the nonbiological mother of the children her partner, Kelly Goudschaal, gave birth to.  The court specifically stated that under Kansas parentage law two parents can be of the same sex. The couple had a coparenting agreement denominating Frazier a "de facto parent," and the court determined that it did not violate public policy to enforce the agreement as long as it was in the children's best interests.

The facts of the case are ordinary enough.  The children had a hyphenated surname and called Frazier "mother" or "mom." They lived as a family unit, and teachers and daycare providers treated the couple as equal parents. The couple split up when the children were about 3 and 5 years old.  They maintained equal parenting time for about six months.  Then Goudschall began reducing Frazier's time with the girls, and shortly thereafter she announced that she was moving to Texas and taking the girls with her.  That prompted Frazier to take court action. The trial court ordered joint legal custody with primary physical custody to Goudschall and reasonable visitation rights to Frazier.

The court rejected Goudschall's argument that Frazier could not be a mother because she was not a biological or adoptive parent, and that her biological maternity automatically rebutted any presumption Frazier might have.  The opinion principally discusses the written agreement of the parties.  A nonbiological mom without a written agreement should still be able to prevail in Kansas, however, because the statute the court applied does not require a writing; "notoriously" recognizing the child is sufficient. A concurring opinion focused only on parentage under the Kansas Parentage Act, citing California's Elisa B. case and New Mexico's Chatterjee case as precedent.

As always happens, Goudschaal cited Troxel v. Granville for the proposition that she has a constitutionally protected right to raise her child.  The court agreed, but found that she exercised that right when she entered the coparenting agreement.  The court actually said she should be able to enter an agreement to share custody "without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children."  This is an interesting twist on the constitutional right of a parent; it suggests that if a court ignores such an agreement that is interference with the parent's rights.

The court here gave more focus to the children than is sometimes found in cases about the status of a nonbiological parent.  It called them third party beneficiaries of the coparenting agreement.  It found they had a reliance interest in maintaining two parents and avoiding the harm of severing the attachments they formed as a result of the agreement. "So what Goudschall really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights," wrote the court.  It continued, "Surely, her constitutional rights do not stretch that far."  The court did not want the children to "suffer the consequences of their biological mother's change of heart."

The court also cited Supreme Court precedent for the principle that  "all children -- both legitimate and illegitimate -- be afforded equal treatment under the law." Denying the Goudschaal-Frazier children the opportunity to have two parents ("the same as children of a traditional marriage")  would violate the children's constitutional rights.  Note how far this is from the argument that same-sex couples must be allowed to marry to provide their children with equal rights.  This opinion might actually be the strongest statement that a couple should not have to marry to provide two parents for their children.  This is the diametrically opposite result to that in New York, where the Debra H. case held that a child has two parents if the couple is married but only one if the couple isn't married.

The difference in the New York and Kansas opinions are to a large extent dependent on the parentage statutes of the two states.  It's not that Kansas has a gay-friendly statute.  It's that the Uniform Parentage Act, on which the Kansas statute is based, does not require marriage or biology for a finding of legal parentage.  How sensible for all children.

Congratulations and thanks are due to the ACLU, the National Center for Lesbian Rights, and Washburn University School of Law Children and Family Law Center (under the able leadership of Professor Linda Elrod), for the friend of the courts brief they filed in support of Frazier and her children.

Kentucky Appeals Court reverses trial court ruling against lesbian mother

It still happens today.  Lesbian mothers lose custody of their children to their ex-husbands because they are lesbian.  Hard to believe, in this era when conservatives often support civil unions -- just not marriage -- for same-sex couples.  But it's true.

And that's what happened to Angela Maxwell and her three children earlier this year when a Hardin County, Kentucky judge awarded sole custody to the children's father, Robert. The judge also limited Angela's time with the children and said neither parent could live with a nonmarital partner while the children were with that parent. For more than a year before the trial, the children who were about 14, 12, and 6, had been alternating weeks between the two parents.  That temporary arrangement included a prohibition on unrelated guests spending the night when the children were there, so it appears that Angela was not living with her same-sex partner, Angel.  At the custody trial, Angela asked that the joint custody continue and that the overnight restriction be lifted.

The trial judge was not subtle about the reason she awarded sole custody to Robert.  "The [mother] is seeking to live an unconventional life-style that has not been fully embraced by society at large," the judge ruled, "regardless of whether or not same-sex relationships should or should not be considered sexual misconduct.  Like it or not, this decision will impact her children in ways that she may not fully have considered and most will be unfavorable."

In an opinion released today in Maxwell v. Maxwell, the Court of Appeals reversed, noting that there was no evidence that the children were harmed by their mother's relationship.  The child were doing well; the two older children wanted the every-other-week schedule to continue; and the youngest child's teacher thought a change in the custody arrangement would not be good for the child.

The trial judge had relied on an earlier case holding that the court did not have to wait until children were harmed to consider a parent's misconduct.  But the appeals court said the issue was whether being in a same-sex relationship is sexual misconduct.  The court found it was not, citing the decriminalization of sodomy and a Kentucky case awarding visitation rights to a nonbiological lesbian mother (which I wrote about here).  The court went further, however.  It cited the US Supreme Court decision in Romer v. Evans for the principle that "homosexuals cannot be singled out for disparate treatment," which the trial judge had done here.  It also cited Palmore v. Sidoti, in which the Supreme Court found unconstitutional a change in custody of a white child based on her mother's marriage to a black man, for the principle that "custody cannot be denied based on the biases of others."  The court also cited a Kentucky case for the principle that Angela had a fundamental right to raise her children, concluding that "it is a violation of Angela's due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor."

The trial judge had cited as future harm to the children the possibility that they might be teased about their mother's relationship.  The appeals court properly pointed out that if that happens it will occur whether their mother has custody or not, and that it is more harmful to the children to deprive them of a loving and positive relationship with their mother.

With all of this, and the great principle this case stands for, I offer a number of caveats.  First, as I began this post, this mother should have never lost in the first place. Most custody disputes settle before trial.  They settle in the shadow of what will happen in court.  It is very expensive and emotionally draining to go through a trial and then an appeal.  Knowing that a trial judge can rule the way this one ruled can influence a gay or lesbian parent to accept a bad settlement (like one that includes a restriction on living with a partner, or that settles for visitation rather than custody).  And that still happens today, in 2012, precisely because of the bias this trial judge showed.

Which leads to my next caveat.  This trial court was transparent about its reasoning.  All parents make mistakes and there is almost always something other than sexual orientation that a judge can use as a basis for a decision.  In fact, in spite of this appellate court win, the court sent this case back to be retried.  In other words, it's not over yet for Angela Maxwell and her children (I can only hope they settle at this point.)  Even the prohibition on her partner's overnight presence is still on the table; there just need to be evidence tying the restriction to the children's best interests.  Some children are uncomfortable with a parent's same-sex partner, and that has been used over and over to justify restrictions.  The two older Maxwell children said they liked their mother's partner, but what if they hadn't?  Furthermore, all the children were doing well; the appeals court calls them "flourishing."  Well, not all children do well.  It is still possible for a trial judge to find  a causal link where none exists between a parent's sexual orientation and the problems that a child might be experiencing.

And here is a final caveat.  The appeals court says this to the trial court's consideration of the children's best interests on remand when it comes to the restriction on Angela's partner:  "Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant."  I'm thinking the changes-in-moral-standards part is about how homosexuality isn't thought of as immoral in the way it once was.  But the inability to marry part?  Are we headed to a time, when same-sex marriage is more common, when a gay parent will be faulted in a custody dispute for not marrying a same-sex partner?  That's not a day I look forward to.....

Illinois nonbio mom can pursue custody and visitation

The Illinois Appellate Court, Fifth District, has afforded a huge win to nonbio moms of children conceived through donor insemination.  The decision in In re T.P.S. and K.M.S. was handed down last week.  The opinion is remarkable because previous Illinois appeals courts have ruled against nonbio moms.  And in a horrendous opinion a few weeks ago, a different Illinois appeals court ruled in In re Scarlett Z.-D. against the parentage claim of a man who raised an adopted child for four years with his female partner but never did a second parent adoption.  The child had a last name consisting of the hyphenated name of her two parents, and called her father "daddy," but the court allowed the adoptive mother to completely erase the man from the child's life when their relationship ended.  (To the lesbians-behaving-badly cases I now add a category of heterosexuals-behaving-badly...).

The T.P.S. court took no position on whether Scarlett Z.-D. was corrected decided.  Instead, it ruled that the status of children born through donor insemination should be analyzed under different legal rules.  The case the court relied upon is In re M.J., from the Illinois Supreme Court.  I am very familiar with this case.  The court allowed a mother to pursue child support from her former unmarried partner for a child she conceived through donor insemination, with his consent, while they were together as a couple.  There are numerous cases involving children born to married heterosexual couples who use donor insemination, even when no statute clarifies parental rights and responsibilities.  M.J. is the only one I am aware of where the heterosexual couple was not married but the court nonetheless determined that the mother could pursue a common law child support claim.

The T.P.S. court read M.J. as carving out law specific to children born of donor insemination.  Such children have a right to support from their "parents"  which allows a common law cause of action for support against a nonbiological parent.  Similarly, they also have a right to the "physical, mental, and emotional support" of both parents, which means that Cathy, who was the children's primary caretaker, could file a common law action for custody and visitation rights.  Illinois has a statute that makes a husband who consents the parent of a child conceived through donor insemination of his wife.  The M.J. court concluded that this did not bar a common law support action between unmarried partners, and the T.P.S. court extended that reasoning to common law actions to establish an unmarried partner's parental rights.  "Without an express legislative intent," the court wrote, "we will not assume that the legislature intended for the children born to unmarried couples through the use of reproductive technology to have less security and protection than that given to children born of married couples whose parentage falls within the purview of the Illinois Parentage Act."

The opinion's takeaway:  "Parental rights may be asserted based on conduct evincing actual consent to the artificial insemination procedure by an unmarried couple along with active participation by the nonbiological partner as a coparent."  In this case, not only was there coparenting but the couple had obtained a guardianship for Cathy over the two children.

The T.P.S. court found that a 1999 appeals court ruling against a nonbio mom was not good law because it was decided before M.J.  There is one other truly terrible Illinois appeals case, and this came after M.J.. In In re Simmons, an Illinois appeals court ruled that the marriage between a woman and a female-to-male transgender man was a void same-sex marriage.  The couple had a child through donor insemination who was six years old when the relationship dissolved.  The court ruled that the father could not file for custody or visitation because he was not a biological or adoptive parent.  The T.P.S. court determined, essentially, that Simmons applied M.J. incorrectly.

Nonbio mom Cathy can now prove common law contract and promissory estoppel theories to support her claim for custody and visitation.  Although the language is a little ambiguous, I actually think the court has said that Cathy can prove she is a parent of the two children born to her partner through donor insemination.  "If an unmarried person causes the birth of a child by the delibrate, premeditated conduct of artificial insemination under the express agreement with the mother to serve as a coequal parent," the court wrote, "that person should receive the same treatment in the eyes of the law as a person who biologically causes conception."  Right on!  The importance of determining that Cathy is the children's parent is that they thereby gain the right to inherit, obtain survivors benefits, etc that go with parentage.  Also Cathy would be able to block any attempt by her ex-partner to allow someone else, like a new partner, to adopt the children.

As for any constitutional claim by Dee, the children's biological mom, the court says that her voluntary agreement to create a family through assisted reproduction and coparent with her partner takes care of any such concerns.  Cathy actually made some arguments about her constitutional right to raise the children as their equitable parent; the court rejected this claim.

It's too soon to know if the bio mom will ask the Illinois Supreme Court to hear this case.  If it does, I hope that M.J. will give the court the ability to head off any possible distinction between "legitimate" and "illegitimate" children of lesbian couples in Illinois.  By that I mean the following.  Illinois lesbian couples can now enter civil unions.  Doing so gives them the rights and responsibilities of marriage. This means that children born through donor insemination to civil unioned couples have two parents by virtue of the statute that makes a consenting husband the father of a child born to his wife using donor insemination.  If a child of the identical couple who have not entered a civil union has only one parent, then there will be two classes of children in Illinois based on the marital status of their parents -- something the demise of "illegitimacy" decades ago was supposed to end for children of heterosexual couples.

Pennsylvania court rules that father should not have been deprived of custody based on his past polyamorous relationship

A Pennsylvania appeals court has overturned a trial court order giving custody of two children to their maternal grandparents rather than their father.  The trial court penalized the father for his past polyamorous relationship.  The case, V.C. and C.B. v. J.E.B. and C.C., is the first one I can remember using the phrase "polyamory" or discussing the practice without prejudgment.

The father, C.C., and the mother, J.E.B., never married.  The two resided with the mother's husband, and the three had a polyamorous relationship.  In June 2007, when the children, A.B. and Z.B., were approximately two and three years old, the older child sustained a spiral fracture to her leg, prompting an abuse investigation by the New Jersey Department of Youth and Family Services.  While the investigation was pending, the children were placed with the mother's parents.  Although the agency determined there was no abuse in about six months, the children remained with their grandparents another nine months, until September 2008.

Sometime in 2007, another woman joined the polyamorous relationship.  The father married that woman and had a daughter with her.  When A.B. and Z.B. returned to their parents, they lived with all four adults until the four-way polyamorous relationship ended and the father and his wife moved to an adjoining apartment in the same building and, in April 2010, to a new home, still walking distance from the mother's home.  The mother and father shared legal custody, rotated physical custody, and gave the grandparents partial custody (otherwise known as visitation) on alternating weekends.

In February 2011, the grandparents filed a petition that either they or the mother receive primary custody.  This prompted the father to file for shared legal custody with the mother and primary physical custody with him, and for the mother to request primary physical custody with her.  After a December 2011 trial, the judge awarded primary physical custody and sole legal custody to the grandparents, with two non-consecutive days of visitation to the mother and the father monthly.

The father appealed.  (The mother did not file an appeal but she did file a brief asking that the trial court order be overturned.)  The appeals court emphasized the high burden of proof on the grandparents.  In fact, this case reminded me of several cases in the 1970 and 80s in which lesbian mothers lost custody to their own parents, the children's paternal grandparents, or other relatives. (The most publicized such case actually happened in the early 1990s, when Sharon Bottoms lost custody of her son Tyler to her mother....More on another similarity to that case later).  The court said the grandparents needed overcome by clear and convincing evidence the presumption in favor of the father, and that the trial court was wrong to find they had sustained that burden.

The appeals court said the judge interjected "artificial morality concerns" into its determination, something not permitted by the list of factors in the custody statute.  Although the trial judge claimed otherwise, the appeals court found that the judge's "general disfavor of polyamory" played a role in the decision.  At the time of the trial the father was no longer in a polyamorous relationship.  They appeals court noted that "while ultimately unsuccessful, his former experimentation with that lifestyle did not harm the children and does not currently affect the children negatively."  The appeals court called polyamory "a nontraditional sexual practice," but considered it analogous to other cases in which a parent's previous sexual conduct was found irrelevant absent evidence of harm to the child.

Sex figured into this case in another way.  The trial court considered the father's wife's friendship with a professional dominatrix and her blog post in which she described herself as a "closet poly."  The appeals court found that "the trial court's preoccupation with these morality issues is improper, particularly where, as here, there is a dearth of evidence to suggest that the sexual practices affected the children at all."

The appeals court was also disturbed about the mother's testimony that her uncle had raped her over a seven year period when she was a child and that the grandparents had been indifferent to the mother's experience, even to the point where the grandfather insisted on inviting his brother, the rapist, to the mother's wedding.  "We are alarmed," wrote the appeals court, "by the trial court's utter failure to confront mother's allegations of sexual abuse by a family member." This aspect of the case reminded me of Sharon Bottoms, who testified that her mother's live-in male partner had raped her as a child; Sharon's mother had that partner move out only when she decided to fight for custody of Tyler.  The courts consistently ignored these facts in awarding custody to the grandmother.

The appeals court was so troubled by the trial court order that it awarded custody to the father, rather than remand for a new determination.  As a side note, I am impressed that the trial occured only nine months ago.  Too often, appeals drag on and children get used to living in a home they should never have gone to.  This can make it hard for the parent who wins on appeal to ever get the children back.

There are a couple of troubling things about the case.  The polyamory was in the past.  That might be read as a factor as important as the lack of adverse impact.  I hope in the future the case will be read to require a finding of adverse impact even if the parent is still in a polyamorous relationship.  Also, the court said that had the father and the grandparents been on a level playing field, it would have been disinclined to disturb the trial court's findings that the grandparents were "better suited to foster [the children's] development."  This could give a window of opportunity to a parent opposing the other parent's polyamorous lifestyle to use that fact without a rigorous examination of the impact on the children.

Still, this case is an overall victory for separating moral judgments about sex from determining a child's best interests.

Again a California Appeals Court recognizes that a child has two mothers

A California Appeals Court has once again recognized the parentage of a woman who raised a child with her partner for many years.  This continues a significant line of cases using the “holding out” provision in California parentage law.  This provision is not unique to California.  It actually comes from the original Uniform Parentage Act which created a presumption of paternity for a man who lived with a child and held the child out as his own.  Another provision of the UPA says that insofar as it is “practicable” the provisions concerning paternity should be applied to determinations of maternity.  In 2005, in the Elisa B. case, the California Supreme Court interpreted those two statutes together to find a presumption of parentage for a woman who planned for children together with her partner, received the children into her home, and held them out as her own.

This newest case, L.M. v. M.G., from the Fourth Appellate District, has a couple of distinctive factual circumstances.  M.G. adopted the child in a single parent adoption in 2001.  The child had come to live with M.G. and L.M. immediately upon his birth in November 2000.  L.M. testified that at the time she thought the only way she could adopt the child would be to register as domestic partners and then do a step-parent adoption.  It appears, totally reasonably, that the couple did not want to jeopardize their relationship with the child by trying to do an adoption together.  The court opinion points out that until November 1999, the California Department of Social Services routinely opposed joint adoption by an unmarried couple and that the California Supreme Court did not approve second parent adoption until 2003.

So, L.M. and M.G. raised the child in the same home until 2003.  After they separated, the child lived primarily with M.G. but spent several nights a month with L.M. and vacationed with her.  The child called L.M. “mom” or “mommy” and friends, coworkers, and parents at the child’s school knew that he was L.M.’s son.

And here is the next distinctive feature of this case: this arrangement went on for seven years with no court involvement.  It is very reasonable that a woman in L.M.’s position would not go to court for a determination of parentage and a visitation order when there is a visitation schedule in place and the child continues to have a relationship with both parents.  This court action began when M.G. told L.M. and she would be moving to Europe for 18 months with her new partner.  L.M. believed that was not in the child’s best interests, and she filed a parentage action requesting custody and visitation.

M.G. opposed the parentage petition.  The trial judge found that L.M. was a parent, but did allow M.G. to take the child to Europe for the 2010-2011 school year, subject to L.M.’s visitation rights.  The judge scheduled a follow-up hearing to determine whether the time would be extended the full 18 months.  M.G. appeals, although one wonders why, given that she was permitted to take her son to Europe.

M.G. agreed that L.M. met the criteria for presumptive parentage based on “holding out,” but she argued that the presumption was necessarily rebutted when the child had been adopted by a single parent.  She argued that the single parent adoption amounted to a determination that there was a “one slot parent family.”  Therefore, she argued, there was no “second slot” for another parent to occupy.  The appeals court rejected this argument.  The issue of whether the child could have only one parent never arose in the adoption proceedings; what happened in those proceedings was a determination that the child’s legal ties with his birth parents should be severed and that the adoption by M.G. was in his best interests.

M.G. argued that her parentage conflicted with L.M.’s parentage and that the court should have conducted a weighing process and determined that M.G.’s parentage trumped that of L.M.  But the appeals court said there was no conflict, since L.M. was not arguing that M.G. was not the child’s mother.  M.G. also argued unsuccessfully that the presumption should be rebutted because it amounted to a stepparent adoption without her consent.  But the court noted that a parentage action and an adoption were two different ways of establishing parental status and therefore that was no basis for rebutting the presumption.

This opinion is one more than demonstrates a strong preference for making sure a child has two parents rather than one.  Every time I read such an opinion I am troubled by the tone of disfavor that attaches to single parenthood.  There is no doubt that in this case this child had two parents.  But I am far more supportive of single parents, gay or straight, than even gay-friendly courts  and policy makers.

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

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


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

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

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

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

Big victory for lesbian moms in New Mexico parentage case

In a unanimous opinion, the New Mexico Supreme Court ruled today in Chatterjee v. King that a nonbiological, nonadoptive mother has standing to pursue joint custody of her child. In 2010, I wrote here about the Court of Appeals ruling that Bani Chatterjee could not pursue custody of her child; that decision was reversed today.  To briefly recount the alleged facts, Chatterjee and her former partner, Taya King, began their committed relationship in 1993.  In 2000, they travelled to Russia, where King adopted a child who was intended to be the child of both of them.  The couple lived with the child and co-parented her as two mothers until 2008, and the child had a last name combining both women's names.  When their relationship ended, King moved away and prevented the child from seeing Chatterjee.

New Mexico has a version of the Uniform Parentage Act that creates a presumption of parentage for a man who holds a child out as his own, and that allows a woman to establish maternity in any way a father can establish paternity when that is "practicable."  The court accepted as the definition of "practicable" something that is "reasonably capable of being accomplished."  Because it is practicable for a woman to hold a child out as her own, that method of establishing presumed parentage is available to a woman.  The court also noted, I am happy to say, that a contrary ruling might be unconstitutional sex discrimination, something I have long believed.  The court specifically said that a contrary ruling would allow a man in a same-sex relationship to establish his parentage based on "holding out," but not a woman in a same-sex relationship.

The court cited decisions from several other states that have interpreted similar provisons of their UPA, including California and Colorado, which I wrote about here. It also cited an Oregon case, which I wrote about here, because that case applied a statutory presumption of a man's parentage if he consents to his wife's insemination to a claim by a lesbian ex-partner based on her consent to her partner's insemination.

The court also found its reasoning consistent with public policy.  A child has no less need for love and support, it ruled, just because her second parent is also a woman; attachment bonds exist regardless of biological or legal connection; and "the law needs to address traditional expectations in light of current realities to keep up with the changing demographic of American families and to protect children born into them."

Finally, the court made clear that although there is a parental preference in determining custody, that does not apply between two parents.  Therefore it does not apply here.

To be clear about the status of this case, Chatterjee's complaint alleged facts sufficient to show her presumed parentage, but because her case was dismissed she has not yet been required to prove those facts at a trial.  Unless the parties reach an agreement on custody, that will be Chatterjee's next step.

One Justice wrote a concurring opinion.  He agreed that Chatterjee's allegations made her a presumed parent but sought to limit the reach of the case to prevent someone coming into a child's life at a much later date, and not recognized as a parent by the child's and the child's family, from claiming presumed parentage.  His concern was based entirely on the scenario of a man entering the picture, living with a woman and her children, and later claiming parentage and asking for custody (or having parentage claimed against his by the mother seeking child support).

Finally, a note on current New Mexico law. The state has adopted a new UPA since the one in effect when Chatterjee filed.  Now a person claiming "holding out" parentage must live with the child during the first two years of the child's life.  Chatterjee could meet that standard, as could all couples who plan for a child together and stay together until the child is two.  If the couple splits up before that time, the partner who did not give birth to or adopt the child may face an obstacle to maintianing parentage.  BUT, and this is HUGE, the recent New Mexico UPA also states that a person (gender and marital status-neutral) who consents to a woman's insemination with the intent to be a parent is a parent.  So for children conceived through donor insemination, the nonbio mom will not need to rely on the "holding out" provision and will not need to worry about the meaning of the two-yea requirement.  Rather, she will be a parent from the moment the child is born (conceived, really).  The fact that the New Mexico Supreme Court interpreted the words of the UPA according to their plain meaning removes all doubt that it will do the same if asked to determine whether the donor insemination provision really creates parentage for both women in a lesbian couple.

Congratuloations to New Mexico attorney Lynn Perls and Shannon Minter and Cathy Sakimura at the National Center for Lesbian Rights for a huge win!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

California appeals court clarifies presumed parent status; it's about the parent-child relationship, not the relationship between the adults

California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own.  Last week came the latest addition to that body of law.  California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other.  In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.

This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P.  J.V. was pregnant when she became good friends with E.C.  E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V.  J.V. and the child moved in with E.C. when the child was three months old.  They began a sexual relationship after they were living together, something they did not tell their families until a year later.  Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child.  After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.

At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent.  J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more.  The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes.  The court said that "[J.V.] never intended [E.C.] to be another parent.  She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."

On appeal, the court held that the trial judge had applied the wrong legal standard to the facts.  Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V.  Whether the two women  had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant.  Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so.  It's the conduct after conception and birth that matters, ruled the court.  (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)

There was much evidence of E.C.'s parental relationship with the child.  As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said:  "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."

Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard.  If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.

The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support.  The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.

I'm struck by a number of things in this case.  I can't give my complete support to a policy whose goal is find two parents for a child.  To me, it comes from the same point of view that in other contexts vilifies single parents.  It also suggests that two is some magic number, even when there are more than two.  Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.

After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out.  At that point it's understandable that J.V. regreted some of her decisions.  But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism.  J.V. shouldn't be allowed to rewrite her daughter's life.

Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California.  It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents.  I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.

Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg

A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years.  The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)

The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible."  The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights.  Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child.  There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child.  (He changed his mind and tried to get parental rights.)  The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born.  The court determined that TMH had a constitutionally protected right to be a parent of her child.

The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case.  The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.

The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation.  But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.

The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child.   The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:

Yes, I know, as did the able trial judge, that the best interests of the child is ordinarily not the test to be applied. Yet, I cannot help but think that it should be. In my view it would be wrong to deprive the child of the benefits - emotional, monetary and supportive - of the relationship to which that child should be entitled with both the appellant and the appellee. Both of the adult women in this case are parents to K.T.-H. in the real sense of the term. I think that we need to find a way to redirect our focus in cases of this kind so that best interests becomes part of the decisional matrix.

The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.

I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one.  That's true, when a child has actually had two functional parents.  I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent.  Plenty of lesbians have children as single parents.  Their family structure also needs to be protected.

Colorado appeals court applies parentage statute to nonbiological mother married to father

There are many cases arising in the context of a wife who gives birth to a child conceived in an extramarital relationship.  Courts have often had to determine whether the biological father can challenge the husband's parentage.  The US Supreme Court, in the famous Michael H. v. Gerald D. case, ruled that a state need not allow the bio dad to assert parentage, even if he developed a relationship with the child.  If the mother and her husband want to raise the child as their own, the Supreme Court ruled, that does not violate the bio father's constitutional rights.

Well a case decided yesterday by the Colorado Court of Appeal, In re S.N.V., raises a similar issue in what I believe is a first-of-a-kind case.  SNV was born in 2007 to a woman who had sexual intercourse with a married man.  The man and his wife claimed that this was a version of a surrogacy arrangement and that the intention was always that the married couple would raise the child.  They claim they attended the bio mom's doctor's appointments, paid for her medical expenses, and have been the child's sole caretakers.  The bio mom claims she had an intimate relationship with the father and that she participated in caring for the child for the first two years, until the father cut off contact.  Then she filed a parentage action to be declared the child's legal mother and to obtain custodial rights.

The wife then filed a parentage action as well.  Her basis for asserting parentage is the Colorado Uniform Parentage Act, which states that a man who receives a child into his home and holds the child out as his own is a presumed father.  (In 2010 I wrote about a case applying this statute to a nonbio dad and noted that it boded well for nonbio moms).  She argued that the statute should be applied to a woman as well as a man, and the court accepted her argument.  The statute says that any interested party can bring an action to determine a mother-child relationship and that "insofar as practicable, the provisions of the [UPA] applicable to the father and child apply."  Another part of the statute says that "in case of a maternity suit against a purported mother, where appropriate in the context, the word 'father' shall mean 'mother."  Taken together, the appeals court determined that the wife could proceed with her parentage claim.

The bio mom could of course also assert a parentage claim.  The court noted that in a previous dispute between a husband and a bio dad the Colorado Supreme Court had determined that the competing claims should be resolved according to the best interests of the child standard.  Therefore, the appeals court remanded this case for a determination of maternity.  In addition to the best interests standard, the court said that

We do not suggest that, in determining best interests, a court must treat statutory presumptions and biological relationships as equals. Nor do we suggest that biological relationships are always the same. We simply note that these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA. 

What does this mean for same-sex couples raising children?  It means, as I predicted in my 2010 post, that a nonbio mom in a lesbian couple who plan for and raise a child together will be a presumptive parent.  It also means that the holding out provision is likely to create a parentage presumption for a nonbio dad raising a child born to his same-sex partner through surrogacy and a nonadoptive parent raising a child legally adopted by his/her partner.  Note that the holding out provision does not depend on marriage; this nonbio mom could have filed her parentage action even if she and the father were raising the child as an unmarried couple.

I tend to be more supportive than many gay rights family lawyers of the parental rights of a woman who bears a child. (I think "surrogates," gestational or traditional, should be able to change their minds upon the birth of the child; I do support surrogacy when practiced by agencies who screen surrogates well, and provide counseling and legal services, so that they weed out those likely to change their minds. Fortunately, many agencies operate in this manner.)  But once a child is born and the birth mother allows another couple to raise the child as their own, in my opinion she cedes a parentage claim based on biology alone.  It looks like that's what happened here.

California appeals court upholds parentage determination for Colonel in US Air Force Reserves

On Friday, in S.Y. v. S.B., the California Third Appellate District upheld a trial court order that found S.Y. to be a parent of two children adopted by her partner, S.B.  This case is signifcant because S.B. argued that her partner had not "received the children into her home" as required by statute because she maintained a separate residence for almost the entire 13+ years of their relationship.  But the reason S.Y. maintained a separate home was because of the potential threat of Don't Ask Don't Tell to her 30 year career in the Air Force.  I wrote about this case, and the impact of the end of DADT on same-sex couples with children, in September.  The children were 10 and 5 when S.Y. filed a parentage action.  It was two months after she and S.B. split up and a month after S.B. denied her access to the children.

S.Y. had a stellar legal team: Eileen Gillis in Sacramento, who won at trial by building a detailed picture of the ways in which S.Y. was the children's mother and did live with them in their family home which was S.B.'s home, and the incomparable Deb Wald who preserved the win on appeal.

Since the victory in the California Supreme Court in 2005 in the Elisa B. case, a mother's partner who receives a child into her home and holds the child out as her own is presumptively a parent of that child.  Deb Wald pointed out to me with pleasure that it was the Third Appellate District that got Elisa B. wrong, leading to the appeal that created the current law.  Therefore, it's great to see that court in particular look so carefully into the life of this family and completely understand what was going on there.

As often happens, the appeals court had a case involving heterosexuals to build upon in this case.  A court in 2003 had found that a man met the "received" test even though the child never lived with him, because the child visited his home regularly and he provided for her financially.  In S.Y.'s case, she stayed overnight at S.B.'s home (which the court called the family home) three to four nights a week and stopped by on the other nights.  The court described in detail all the parental tasks that S.Y. did and all the financial support she provided.  The opinion quotes the trial court's finding that this was not a situation of a person dating the mother who incidentally cared for the mother's children because of that.  Rather, the relationship between the women lasted longer than it would have because of S.Y.'s commitment to the children.

The moms split up when the first child was about 3 1/2.  The split up last 2 1/2 years, but S.Y. continued parenting all that time (except when S.B. would not allow it), going to S.B.'s home most evenings and every weekend and going on vacations and other family outings together. They were still split up when S.B. decided to adopt another child, and S.Y. did not participate in that decision. But during the adoption process, S.B. asked her to come to Minnesota, where the second child was born, to help take care of the first child while the adoption proceedings there dragged on.  And when everyone returned to California, S.Y. continued to go to the home most evenings and every weekend to be with the children, and she did act as a parent to the second child as well.   The couple reconciled in November 2005, about a year after the second child's birth, and they split up for the final time in July 2009.

Given this non-standard factual scenario, the court might have ruled against S.Y. because there was no joint decision to adopt the second child.  But the court looked at the joint parenting instead.  Similarly, and to me this is the most important part of the ruling, the appeals court said as follows:  "While S.B. may not have intended for S.Y. to obtain any legal rights to the children, the record is replete with evidence that she not only allowed, but encouraged, S.Y. to co-parent both children from the beginning."  This is followed by a long paragraph summarizing all the actions taken by S.B. to make S.Y. a parent.

We talk often of "intended" parents in a way that seems to make intent the touchstone of determining who is a parent.  Certainly our cases and scholarship (including mine) are full of references to the importance of intent. I remember Jenni Millbank, Australia's leading scholar of LGBT family law, arguing vehemently that intent can be too subjective and that it is actions that should count. When a woman consents to her partner's insemination, Jenni would say, the consent is the action that makes her a parent.  Jenni did not agree that the law should require proof on top of the consent that the partner intended to be a parent.

Well I thought of Jenni when I read this part of the opinion.  I have no idea what S.B. intended, but the evidence shows what she did.  And what she did made S.Y. a parent of the children she adopted, complete with Mother's Day cards, incorporation into S.Y.'s extended family, and joint care and financial support of the children.  That is what the children experienced.  The children could not know what was in S.B.'s mind, and it would not have mattered to them if they did.  Children learn that actions speak louder than words.  And actions certainly speak louder than unsaid words, like whatever was in S.B.'s mind.  In the end, this case is important for its ability to see a family home even when one adult had a separate residence; to see consistent parenting in the midst of some instability in the adult couple relationship; and to find facts based on behavior, not thoughts.

South Carolina appeals court reverses custody award to father that was based in part on mother's abortion

Since the mid 1970's, gay rights advocates, and advocates for children, have argued that a judge's view of the morality of a gay or lesbian parent should not influence the judge's decision on custody or visitation. Gay and lesbian parents do continue to lose custody or face vistitation restrictions in some counties and states, but rulings explicitly based on morality are rare.  Of course some parents avoid the risk of losing custody altogether by agreeing to keep their partner away from the children, and that tells me that such risk still exists.

A case decided by the South Carolina Court of Appeals last week raises a different issue about morality.  In Purser v. Owens, a trial court removed an eight-year-old autistic child from the only home he had ever known, with his mother, and transfered custody to the child's father, who lived in North Carolina, had never lived with him, and had little contact with him for the first six years of his life. The parents were never married.  Among the reasons:  when she was 35, the mother had a brief affair with a 19-year-old; when she became pregnant, she had an abortion.  The trial judge said this:

Other things I'm concerned about is the pregnancy with a 19 year old and abortion. That was an irresponsible decision; two irresponsible decisions. First being involved with a 19 year old when you are 36 or 35. That's irresponsible. And then having an abortion. That's irresponsible. I am concerned about the environment.

Three years later (there is no accounting of how it took three years for this appeal to be resolved), the appeals court reversed the custody decision and sent it back for a decision without considering the mother's abortion, because the abortion had no direct or indirect effect on the child and was therefore not relevant.

Most of the opinion is devoted to whether the father should have had to prove there was a "change of circumstances" to get custody of the child.  The majority ruled that since it was the first legal determination of the child's custody, the father did not have that burden.  A vigorous dissent disagreed, reasoning that the father approved the custody arrangement with the mother by never trying to change it and should have to meet a higher burden to change custody after such a long time.

I'm afraid that this ruling, as good as it is for the principle that a mother should not be penalized because she had an abortion, will be of little help to Angela Owens, the mom in this case.  There's nothing about the trial judge's ruling being stayed pending appeal, so it is likely that the child has been living with his father for three years.  If that placement is going well enough, a judge may be reluctant to disturb it.

Two other notable things about this case.  The father was married.  The trial court might well have preferred a married couple home over the mom's single parent family.  And the mother alleged that the father filed for custody after she went after him for child support.  If that's true, it's not the first time, and such a sequence of events should suggest some real bad faith on the father's part.

Finally, given the discretion accorded judges in deciding custody, this ruling might have been affirmed if the judge had not mentioned the abortion.  Certainly there are recent court decisions involving gay fathers and lesbian mothers where the judge says that sexual orientation is playing no role in the decision.  An appeals court will usually take a judge at his or her word in that regard.  This judge could have said he was not considering the abortion, or he could have not mentioned it.  But he did, and at least the case stands for the proposition that he should not have.

Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple

On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")

The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).

Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.

That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.

Nebraska Supreme Court rules nonbio mom entitled to hearing on custody and visitation

The facts are sad but common. Lesbian couple, Teri Latham and Susan Rae Schwerdtfeger, were together for 20 years and had a child born to Susan using donor semen about 15 years into their relationship, in 2001. They cared for the child as co-parents. In 2006 they split up. The child stayed with Susan but Teri claimed that she continued to see her son three to five times a week and to support him financially. According to Teri, in 2007, Susan began to cut down on her visitation time, and, in December 2009, Teri filed a petition for custody and visitation.

Although the trial judge initially gave her 30 minutes of visitation three times a week, six months later the judge dismissed Teri's case without a trial (although it appears the judge talked to the child in chambers), ruling that the doctrine of in loco parentis did not apply to her case. Teri appealed, and last Friday the Nebraska Supreme Court ruled in her favor. Teri now has the right to a trial.

The court determined that no statute gave Teri standing to bring her action but that the common law doctrine of in loco parentis did give her standing. Previous Nebraska court rulings had used that doctrine to order both visitation and child support for a stepparent and to grant a grandparent custody. "The Legislature did not intend that statutory authority be the exclusive basis of obtaining court-ordered visitation," the Latham court held. "If Latham can establish that she has met the standard...for granting relief to one who stands in loco parentis, there is no reason to exclude this case from the benefits of the doctrine afforded to stepparents and grandparents who have created similar relationships with a minor." The court cited rulings in lesbian split-up custody cases from numerous other states, including Pennsylvania, Wisconsin, Kentucky, Arkansas, and Washington; it did not acknowledge the states that have denied nonbio moms the ability to obtain custody or visitation.

The court continued:

The primary determination in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship. Application of the doctrine protects the family from allowing intervention by individuals who have not established an intimate relationship with the child while at the same time affording rights to a person who has established an intimate parent-like relationship with a child, the termination of which would not be in the best interests of the child.

Susan disputed a number of facts that Teri asserted, primarily after the couple split up. The case, therefore, returns to the lower court for a trial. And here the Nebraska Supreme Court opinion gets a bit murky. Although there is lots of talk about determining whether it is in the child's best interests for Teri to receive visitation, the court also acknowledges the factual dispute about the time Teri spend with the child after the couple split up and the nature of Teri's relationship with the child. This makes it seems as though the trial judge could believe Susan's version of the facts and determine that after the break up there was no in loco parentis relationship and then not consider whether visitation is in the child's best interests. But the court also notes that the diminished visitation in the two years before the case was filed reflected Susan's decision, not a lack of desire on Teri's part to be in the child's life. Presumably this means the trial court has to take into account Susan's obstruction of Teri's relationship with the child.

Even on a pure "best interests" basis, Teri faces a problem when the case returns to the lower court. There is no evidence she has seen her child for more than a year. There was little contact for some time before that. What's in this child's best interests at this moment will look different from the way it would have looked when the couple first split up. To that extent, Teri may fare less well than will future nonbio moms in Nebraska. But Teri will always be one of those "pioneering parents" whose contribution to LGBT family law is being honored at this year's Lavender Law conference.

One other comment, which I've made before. So-called "gay friendly" states are not necessarily good states for respecting the families formed by same-sex couples having children. And so-called "not gay friendly" states can get it just right. For other examples, compare New York and Kentucky.

Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services

An Illinois state trial judge has thrown out the law suit filed by Catholic Charities of Illinois. The state of Illinois refused to renew the agency's contract to provide adoption and foster placement services because Catholic Charities said it would not place children with unmarried couples, including same-sex couples in civil unions. The agency sued.

Normally we think such lawsuits are about some religious freedom claim to discriminate. But in the first instance this suit was about whether Catholic Charities had a right to have its contract renewed. The agency claimed that because it had been renewed for 40 years, the state could not refuse to renew it this time without providing Due Process of law, which would include the right to present their point of view to a neutral decisionmaker.

The trial judge disagreed. He had previously granted an injunction against the contract termination in order to preserve the status quo. The injunction was granted on July 12. He heard argument on Wednesday and ruled yesterday. His short opinion concluded that "no citizen has a recognized legal right to a contract with the government."

Government attorneys argued on behalf of the state, but the ACLU of Illinois represented intervenors -- a lesbian couple wishing to become foster parents and a representative of all foster children in the state. The ACLU memoranda argued that since the state could not discriminate then a state contractor could not discriminate either.

The Thomas More Society, the "pro-life law center" representing Catholic Charities, has not decided what their next step will be.

Wisconsin trial court upholds domestic partner registry

Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.

Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.

Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.

Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.

Wyoming Supreme Court allows married same-sex couple to divorce

The five justices on the Wyoming Supreme Court ruled unanimously yesterday that a lesbian couple married in Canada could divorce in Wyoming. The opinion in Christiansen v. Christiansen reverses a lower court ruling that the couple could not divorce because Wyoming law prohibits same-sex marriages.

Paula and Victoria Lee Christiansen were married in Canada in 2008. Paula filed for divorce in February 2010. Wyoming has a statute defining marriage as between a man and a woman. The court defined the issue as "whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding." The court pointed out that Wyoming also has a statute saying marriages validly entered into in another country are valid in Wyoming. That rule, the court said, is not absolute because the state can find a marriage invalid if it is "contrary to the law of nature" or if it is a marriage "which the legislature of the state has declared shall not be allowed any validity." (Those quotes from an earlier court opinion.)

The court reconciled this "public policy" exception to recognizing foreign marriages by saying the following: "Recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship." The court specifically noted that the couple was not trying to live as a married couple in Wyoming or "enforce any right incident to the status of being married."

This is a very interesting ruling. The appellant's brief says that the couple acquired real and personal property and debts during the marriage and asked the trial court to resolve those issues. Property division (and spousal support) are "incident to the status of being married." Also, the reasoning of the court could apply equally to any consequence of one spouse dying. So intestate succession, workers comp survivors benefits, and other benefits conferred on widows would also not involve "recognition of a marriage as an ongoing relationship."

Some Wyoming legislators tried to file a friend of the court brief in the appeal, with representation by the Alliance Defense Fund. The court denied, twice, motions to permit ADF lawyers to appear and to file the amicus brief. The pleadings, motions, and orders are available on the court's website and make for an interesting read. The court did not say why it denied leave to file the amicus brief, but the objection filed by the appellant's lawyers noted that the legislators and ADF were pursuing a "political agenda" that did not belong in the court. Given the interest that some legislators have taken in this issue, it is bound to come up again. Wyoming does not now have a constitutional amendment banning same-sex marriage or recognition of same-sex marriages from elsewhere.