Lesbian mother vs. convicted murderer father is the subject of an upcoming documentary

I spend a lot of time writing about gay couples having children and their ensuing legal issues. But I never forget about the gay and lesbian parents who defend their right to their children against heterosexual ex-spouses or other relatives. Filmmakers are preparing a documentary about one such case, Ward v. Ward, decided in Florida in the mid-1990's. Mary Ward lost custody of her 12-yr-old daughter to her ex-husband, who had murdered his first wife. John Ward was remarried, and he and his wife charged that the child had been exposed to improper influences in her mother's home.

You can watch a trailer for the movie, Unfit. The filmmakers are seeking funding to get the movie finished. National Center for Lesbian Rights Executive Director Kate Kendell will appear at a fundraiser for the film in Miami Beach next week.

These gay vs straight custody disputes are not ancient history; they continue today. Lesbian mothers still lose. But they also win. Even in conservative states, there are judges who will not modify custody or visitation rights based on a parent's sexual orientation. We tend not to hear about most cases, because they aren't appealed. Even though a win for one lesbian mom or gay dad could be a huge boost to the morale of another parent fighting for custody, the parent who has won at the trial level is unlikely to want to publicize that victory and risk having the publicity used to claim s/he is not acting in the child's best interests. The key for any parent facing such a custody challenge is finding a lawyer who knows this area of law or is willing to be guided by the experts at the National Center for Lesbian Rights.

Florida agency ends ban on gay adoptions

The Florida Department of Children and Families has responded to last week's ruling that the state's ban on adoptions by gay men and lesbians is unconstitutional, and the news is great.

In a two page memo dated the day after the ruling, Alan Abramowitz, State Director of the Office of Family Safety, announced that the Department has submitted to the legislature language repealing the statute. "Effectively immediately," the memo states, "staff will discontinue asking prospective adoptive parents their sexual orientation." Forms will also be revised to delete any reference to sexual orientation.

The memo further states that "staff should be instructed not to use this information as a factor in determining the suitability of applicants to adopt and should focus his/her [sic] attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children." Thank you! I resent having to be so grateful for so obvious a statement of policy, but grateful I am.

No definitive word yet on whether the state will appeal the court ruling to the Florida Supreme Court. It would seem inconsistent with this swift implementation of the appeals court mandate. But it's a big election year in Florida and there will be a new governor, so it isn't over til it's over.

Thanks to Michele Zavos for passing along the memo, which she received through the American Academy of Adoption Attorneys.

Florida appeals court finds ban on gay and lesbian adoptions unconstitutional

In a long-awaited ruling, the Florida Third District Court of Appeal, in In re Adoption of X.X.G. & N.R.G. (usually referred to as the Gill case), has declared the state's ban on adoption by gay men and lesbians unconstitutional. The three-judge panel unanimously upheld the trial court's ruling and held that the ban violated the Florida constitution's guarantee of equal protection. The court applied the "rational basis" test, under which a statute that classifies people (such as gay and non-gay in this case) must be upheld if the classification bears a "rational relationship to a legitimate governmental objective." There must be, the court said, a real difference (emphasis in opinion) between the two groups that is reasonably related to the purpose of the rule. The ruling turned largely on the fact that Florida allows gay men and lesbians to be foster parents and legal guardians, that the Department of Children and Families agreed that "gay people and heterosexuals make equally good parents," and that all adoptions are based on a case-by-case evaluation of a child's needs and the circumstances of the prospective adoptive parents.

If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.

The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.

The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.

It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.

I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!

Another Florida judge declares the state's gay adoption ban unconstitutional

The judges who handle adoptions know a lot about the needs of children. I am sure when Miami-Dade Circuit Judge Maria Sampedro-Iglesia reviewed Vanessa Alenier's petition to adopt an infant cousin, she knew the placement was in the child's best interests. The only thing standing between the judge and doing the right thing for that child was Florida's total ban on any adoption by a person who is "homosexual." So the judge had to declare the ban unconstitutional, which she did earlier this month, according to a front page story in the Miami Herald.

I've written about two similar trial court rulings in the past year and a half, one of which is on appeal, with a ruling expected any day.

The most recent case began when Vanessa's aunt called her the day after the child was born. The child had been taken by the Florida Department of Children & Families almost immediately and was hospitalized until he was nine days old. At the trial, the judge heard from Vanessa, her aunt, her uncle, her partner, her partner's mother, a neighbor, a family friend, the child's pre-school administrator, a child psychologist and a social worker. All supported the adoption.

The judge's written order includes the following statements which she made from the bench after hearing the testimony:

"[It] sums up the whole case...the only thing the State or anybody should be looking at, the best interests of the child and how he is loved."

The judge declared the ban "unconstitutional on its face" which means that she found it unconstitutional in all circumstances. It is possible to declare a law unconstitutional as applied to a particular factual situation. So the judge could have limited the ruling to a situation where the child will be adopted by a relative. That this judge went as far as she did suggests to me that at least some Florida judges who actually deal with children who need to be placed for adoption are sick of being blocked from serving the best interests of those children by a law motivated by political ideology and hate. The written ruling states that "there is no rational connection between sexual orientation and what invariably is or is not in the best interests of a child."

Congratulations are due to Miami lawyer Elizabeth Schwartz, who was counsel in one of the previous cases in which a judge also declared the law unconstitutional.

News from Lavender Law -- the latest adoption/foster parenting bans

It's not called Lavender Law anymore, but I can't help myself. (Sixth Ave will never be Avenue of the Americas to me...). Its official name is the National LGBT Bar Association Career Fair & Conference, but by any name this is the annual gathering of LGBT lawyers, law students, and law profs (and some straight advocates who work on our issues). This year's conference is taking place in Brooklyn.

Today I attended a session on "The New Adoption and Foster Care Battle: Cohabitation Bans." Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida...hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner -- gay or straight (Utah...not on its way out).

Kara Suffredini of Family Equality Council then described recent efforts - largely unsuccessful - to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements -- thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.

Finally, Leslie Cooper, ACLU's litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn't count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It's a regurgitation of the right-wing marriage movement's basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.

It's a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded "marriage promotion" when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is...gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.