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.
Showing posts with label DADT. Show all posts
Showing posts with label DADT. Show all posts
Monday, December 12, 2011
Wednesday, September 21, 2011
End of DADT improves life for the children of same-sex couples
In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received littled notice: children with a gay servicemember nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.
It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.
A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple was not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.
After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.
S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.
From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.
It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.
A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple was not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.
After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.
S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.
From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.
Sunday, December 26, 2010
Let's keep some perspective on the DADT victory
I'm against discrimination as much as the next gay person, so of course I am pleased that DADT will soon be history. But my enthusiasm is tempered. The two most visible items on the gay rights agenda have been the military and marriage. The demand is so simple to articulate: let us in. I criticize relentlessly the problem with a "let us in" approach to marriage. I do it in my book, and in this blog, and every chance I get. Organizing legal consequences around marriage - making marriage an on/off switch that determines who is in and who is out - is bad family policy and leads to bad results for many people, including many gay men and lesbians. The demand for access to marriage too often glorifies the importance of marriage, often making less space for families and relationships that do not fit the marriage model. Marriage equality rhetoric nevers focuses on what's wrong with marriage, as though the only thing wrong with it was its exclusion of same-sex couples.
Well a "let us in" approach to the military too easily overlooks what's wrong with the military and with US military policy. The poster children for repeal have been those men and women who profess deep loyalty to the military mission, wherever it might be. Discharged servicemembers never claim they want to return to the military to change anything about it, other than its exclusion of lesbians and gay men.
As far as I can tell, the only LGBT rights group in the country to temper its delight at DADT repeal is Queers for Economic Justice, which reminds us that "it is immoral that the military is the nation’s de facto jobs program for poor and working-class people." Read its entire statement here.
Well a "let us in" approach to the military too easily overlooks what's wrong with the military and with US military policy. The poster children for repeal have been those men and women who profess deep loyalty to the military mission, wherever it might be. Discharged servicemembers never claim they want to return to the military to change anything about it, other than its exclusion of lesbians and gay men.
As far as I can tell, the only LGBT rights group in the country to temper its delight at DADT repeal is Queers for Economic Justice, which reminds us that "it is immoral that the military is the nation’s de facto jobs program for poor and working-class people." Read its entire statement here.
Tuesday, November 30, 2010
"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)
The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers.
The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.
But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.
The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:
We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.
This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.
With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:
There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.
The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.
The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.
But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.
The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.
But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.
The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:
We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.
This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.
With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:
There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.
The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.
The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.
But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.
Tuesday, November 16, 2010
DADT hurts gay parents and their children
On The Nation website today, National Center for Lesbian Rights attorneys Ilona Turner and Daniel Redman write about the impact of DADT on servicemembers with families. The article contains numerous examples of servicemembers subject to a form of blackmail by ex-spouses who fight for custody of children born during prior heterosexual marriages. It doesn't matter whether the lesbian or gay parent lives in a state that fully supports the rights of LGBT people to raise children; the parent may not lose her child, but she will lose her job. As the authors point out, DADT doesn't really mean don't tell the military; it means don't tell anyone. Unfortunately, DADT is also a weapon that a gay civilian can use against a military ex-partner; San Francisco attorney Deb Wald describes such a situation in the article.
When DADT means that a servicemember can lose her children, it turns those children into a form of collateral damage. Does anyone remember that DADT was supposed to be an improvement on the prior rule, which completely excluded gay people from serving in the military? The increase in discharges put the lie to that. And lesbian servicemembers continue to be discharged at a higher rate than gay male servicemembers. We should thank the authors of this piece for bringing to light the harm DADT causes them and their children.
When DADT means that a servicemember can lose her children, it turns those children into a form of collateral damage. Does anyone remember that DADT was supposed to be an improvement on the prior rule, which completely excluded gay people from serving in the military? The increase in discharges put the lie to that. And lesbian servicemembers continue to be discharged at a higher rate than gay male servicemembers. We should thank the authors of this piece for bringing to light the harm DADT causes them and their children.
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