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

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

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

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

Pennsylvania ends discrimination against gay and lesbian parents...in 2010!?

There's some truth to the red state-blue state divide when it comes to LGBT parents, but the law is actually more complicated than that. My post last week about Kentucky's recognition of a two-mom family is one example of a red state clearly understanding and respecting the families we create. Then there's the Pennsylvania case, also from last month, overruling a 25 year old opinion disfavoring a gay or lesbian parent in a custody dispute with a heterosexual parent. Who realized there was such a disadvantage in Pennsylvania until this year?

Same-sex couples having children through assisted reproduction dominates a lot of the public attention to LGBT families, so many people may overlook what still is likely the most frequent dispute over gay parenting to hit the courts: A married heterosexual couple with children splits up; one parent comes out; the other uses the parent's sexual orientation as a basis to gain an upper hand in a dispute over custody or visitation. I don't have statistical proof that this is still an everyday occurence, but I believe it is. The number of people who grow up, get married, have children, and then come out remains significant. (One of the Perry plaintiffs, Sandy Stier, meets that profile.) A heterosexual ex-spouse who is either homophobic or strategic (or both) may try to use the other parent's sexual orientation to get custody or impose supervised or restricted visitation rights.

Which brings me to M.A.T. v. G.S.T., an appeal from an August 2008 order from a Pennsylvania trial judge awarding primary custody of a 3-yr-old daughter to a heterosexual father. The lesbian mother was given every other weekend visitation and six weeks in the summer. A custody evaluator had recommended joint custody or, if the judge rejected joint custody, primary custody to the mother. The trial judge's order specifically said that "when weighing [Daughter's] best interests between the two households we believe those interests are better served by placing her in a traditional heterosexual environment." The judge relied on the 1985 case, Constant A. v. Paul C. A., and a subsequent 1991 case, for placing the burden on the gay parent to prove that the child would not be harmed by being exposed to a gay relationship. The mother had not offered evidence that her relationship would not have an adverse effect on her daughter, so the judge ruled against her.

That's the bad news, and it's really bad. The good news is that the appeals court reversed, and in doing so explicitly overruled Constant A. and the cases that had followed it. "A homosexual parent," the appeals court ruled, "bears no special evidentiary presumption in a child custody case." The Constant A. presumption had been based on

"unsupported preconceptions and prejudices -- including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship. Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court."

Now Pennsylvania allows second-parent adoption and also recognizes some legal rights and responsibilities for a nonbiological mom who raises children with her partner but does not adopt the children. That was true long before 2008. Yet the Constant A. presumption lingered until this year. What accounts for this? I've got two thoughts. The first is that the presence of a heterosexual option presents a judge with a different circumstance than that of a lesbian couple raising children, whether they are still together or not. The pull towards placing a child with a heterosexual parent when that is available may be irresistible, even to judges who tolerate gay couples raising children.

Beyond that, there's the judge-by-judge nature of family court practice. No matter what the law on the books, a judge hearing a custody dispute can make factual findings that will be hard to reverse on appeal. When a divorcing parent faces the prospect of going to court over custody, the attitudes of the judge who will hear the case matter more than all the statutes and appeals decisions in the state. The judge in M.A.T. left no doubt about his reasoning, and that made reversal easy. But, even so, the child in the case has lived with her straight father almost a year and a half. Most parents are risk-averse, and the prospect of losing custody in the trial court and maybe winning years later on appeal is not an inviting one. So a lesbian mother or gay father may settle for less than she or he wants to avoid the possibility of a worse result.

The M.A.T. case is a reminder that the legal issues raised by the relatively new family form of a same-sex couple planning for and raising a child together do not eliminate, and should not eclipse, the remaining barriers facing a gay parent who wants his or her old-fashioned custody dispute with an ex-(heterosexual) spouse decided without stereotypes or bias.

Oregon Supreme Court lets stand ruling that child of lesbian couple has two mothers from birth

Last July I wrote extensively about an Oregon appeals court decision declaring that a woman who consents to her partner's insemination is also a parent of the resulting child. The court reached its conclusion by reasoning that the law makes that provision for the husband of a woman who conceives through donor insemination and so it is unconstitutional (under the state constitution) to exclude a same-sex partner from that status.

The biological mother asked the Oregon Supreme Court to review the appeals court's ruling, and Wednesday that court declined to do so. The denial of review came in a standard order with no comment, as is customary.

This order means that the appeals court ruling stands as the law of Oregon. All lesbian couples who have a child using donor insemination are now both the legal parents of the child. As we say about the DC law on the subject, however, the nonbiological mother should get a court order - of parentage or adoption - because other states may disregard another state's statute that they disagree with but must respect the court orders of other states.

Congratulations to Portland attorney Mark Johnson on this important win. Now the non-bio mom, Sondra Shineovich, returns to the trial court to argue for custody/visitation of her two children.

Vermont judge orders transfer of custody to non-bio mom of Isabella Miller-Jenkins

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.