What ELSE is wrong with Philadelphia Catholic Charities?

Catholic Charities in Philadelphia refuses to licenses same-sex couples as foster and adoptive parents.  That stance cost them their contract with the city -- in other words public funding -- to serve as an agency that certifies foster and adoptive parents for children in foster care. Philadelphia has an ordinance that forbids contractors to discriminate on the basis of sexual orientation. Since Catholic Charities does discriminate, it could not remain a city contractor.

Catholic Charities responded to the city's action by suing, claiming that it is the subject of discrimination...on the basis of its religious beliefs.  So far, it has lost. This conflict is one of many across the country, as organizations and individuals assert a constitutional right to discriminate or seek a legislative right to do so.  The Movement Advancement Project does a good job of tracking existing and pending  actions.

But as this article explains, Catholic Charities continues to serve as a community umbrella agency working with children in foster care and their families.  The city has not cancelled that contract.  Here is the map that shows how much of the city lies within Catholic Charities' purview.  In its function as a community umbrella agency, Catholic Charities provides case management services that determine whether a child, once removed from parents, is returned to their care.  Reunification services can be the most critical component of determining a child's fate.  If an agency determines that a parent should attend classes, mental health counseling, or job placement services, the parent's failure to do any of those things can lead to termination of parental rights.  If an agency sets up a parent's visitation with her child at a particular place on a particular day, the parent's failure to attend can lead to termination of parental rights.  That the services may be unnecessary; that the schedule might conflict with a parent's job, or care responsibilities for other children, or other appointments for housing assistance or some other necessity; those things may turn out to be irrelevant.  The power of the supervising agency to set the rules and then determine if they have been broken is, literally, awesome.

So what's the problem?  Aside from the unreasonable demands frequently placed on all parents of children in foster care, some of those parents are LGBT and have same-sex partners or ex-partners.  Catholic Charities admits it will not license same-sex couples as foster or adoptive parents.  We should assume that the agency thinks equally badly about the parents in same-sex couples trying to get their children back from foster care.  The power to supervise families with children in state care is the power to determine where those children end up.  If Catholic Charities wants those children in an adoptive home with a married mom and dad, or in a kinship home with a homophobic relative, that is where they will end up.  No case manager has to state up front that the child will not go home to a lesbian mother; there are just so many ways to achieve that result without being direct.

The case manager can also place the child in a foster home that denigrates LGBT individuals and same-sex couples.  Heck, the case manager can place an LGBTQ child in a foster home that denigrates LGBT individuals and same-sex couples.  THAT is a lot of power.

The subject of LGBT parents whose children are removed by the state has not made it to the top (or even the middle or the bottom) of the agenda of any LGBT advocacy organization.  This even though the one research study looking at the sexual orientation of parents who lost their children found that, among low-income Black mothers, those who identified as lesbian or bisexual were over four times more likely than those who identified as heterosexual to have lost their children to the state.  Well those parents are at the top of my agenda, and my article about them, Neglected Lesbian Mothers, will be out shortly in the Family Law Quarterly.

There's a lot that LGBT advocates could be doing. But with an organized effort underway to stop agencies from discriminating against LGBT foster and adoptive parents it should be a small, but hugely significant step, to add to the demands that no agency that refuses to license gay people as foster parents should be able to supervise families with children in foster care where either a parent or the child is LGBT.  I'm talking about YOU, Philadelphia Catholic Charities.

NY appellate court gets Gunn v. Hamilton wrong

The New York Times and the New Yorker are among the outlets that extensively covered Kelly Gunn's court action asserting parentage of Abush, a child adopted by her ex-partner Circe Hamilton.  The trial court ruled against Gunn, finding that the couple's plan to adopt a child together ended when their relationship ended, over a year before Abush was even identified as a child available for Circe to adopt.

Late last month, the appellate court refused to put the matter to rest.  It agreed with the trial court that Kelly was not a parent based upon the couple's earlier intent to raise a child together.  But it sent the case back to let Kelly try to prove that she should prevail on the grounds of equitable estoppel.  Circe did allow Abush to develop a relationship with Kelly, but it was never a parental relationship.  Kelly even referred to herself at one point as assuming a godmother role.

I find the result shocking.  Lots of children have extremely close relationships with adults other than their parents.  When the parent decides to relocate with the child, which is what happened here when Circe wanted to return to her native London, the child and adult may miss each other very much.  Nonetheless, a parent can make that choice about her family for reasons too numerous to list, such as cheaper cost of living, job opportunities, education opportunities, a new primary relationship, and family support.  

There was extensive evidence about Abush's relationship with Kelly and none of it pointed to a parent-child relationship.  The appeals court seems to think the child's perspective is necessary, but there is nothing the child can say that would turn Kelly into a parent.  And if the child's voice reported a close relationship with Kelly, that would still not make her a parent.  I find it useful to run the facts of the case through the new Uniform Parentage Act.  The UPA enumerates several paths to parentage, including a de facto parentage path.  Kelly would meet none of the UPA tests.

It is dangerous to allow the kind of challenge to a parent's authority sanctioned by this appellate court ruling, and it is especially dangerous for single parents.  I say this because I think the result would have been different if Circe had been raising Abush with a partner, even if the child had spent exactly the same amount and quality of time, and developed the same relationship, with Kelly.

We need to talk about LGBT parents who lose their children to the child welfare system

I have written about lesbian mothers, and LGBT parents more broadly, in many contexts.  But from now on I'll be concentrating on one context...child welfare proceedings that remove children from their parents and that can result in termination of parental rights.  My first post on this topic was on the website of the LGBTQ Poverty Initiative, whose report, Intersecting Injustice, was recently released.  Read Invisible and Ignored: LGBT Parents in the Child Welfare System here, and stayed tuned for more.

Arkansas Supreme Court reconsiders ban on presence of unmarried partner during visitation

In 2011, the Arkansas Supreme Court issued a definitive blow to restrictions on unmarried couples, gay and straight, adopting children in Cole v. Arkansas.  The opinion was a landmark articulation of a right to sexual intimacy under the Arkansas constitution.  In a blog post later that year, I pointed out the inconsistency between Cole and numerous other Arkansas rulings preventing the presence of a parent's unmarried partner during the exercise of overnight visitation rights.  A new case squarely raising this latter issue, Moix v. Moix, has reached the Arkansas Supreme Court, where it was argued last week by stellar ACLU attorney Leslie Cooper.  (To watch the video of the oral argument, click this link and scroll down to archived videos from November 7, 2013).

John and Libby Moix divorced in 2004 after John realized that he was gay.  They had three children, but only one is still a minor -- 12 year old Ryan.  John began living with his partner, Chad, and had standard visitation with his children, including overnights, although John and Chad did not share a bedroom when Ryan was present.  After a violent incident between John and Chad in 2005, John agreed to daytime-only visitation.  Although the paperwork was completed and signed, and a court order resulted, the overnight visitation never stopped.  The two older children went to live with their father and Chad in 2008, during their senior year of high school.  Chad has a 16 year old son with whom he has regular overnight visitation.  In what I consider to be an uncommon situation, Chad's ex-wife testified that she had spent much time with John and Chad, was supportive of their relationship, had no trouble with her son being around them, and thought Ryan should be able to have overnight visits with his father.

John is a pharmacist and has struggled with drug addiction.  He twice lost his pharmacy license, most recently after a February 2010 DWI, after which he entered long-term rehab.  He regained his lisence in September 2011 and resumed visitation with Ryan, but Libby stopped overnight visits in January 2012.  In this action, John sought an increase in visitation and the ability to have overnight visitation with Chad present.

Libby is a member of a fundamentalist church and married a minister in that church in 2011.  According to John, Libby has told Ryan that gay people are going to hell.  Libby testified that John's homosexuality was not the main reason she was restricting overnight visitation.  She expressed skepticism about his recovery and concerns over some of his parenting decisions.  She did testify, however, that she believed John's relationship was immoral and against God's intention and that she did not believe that Ryan was emotionally prepared to deal with having a gay father.

From the transcript of the trial, it is evident that the issue of Arkansas's blanket ban on the presence of an unmarried partner was the principle issue from the beginning.  The trial judge said he was required to follow the law and policy of the state, and John's attorney referred to the case as headed to the state supreme court for review of the issue.  The attorney also raised the question of the restriction's constitutionality.

The trial court found it in Ryan's best interest to have more time with his father and so increased the visitation.  He also made a finding that Chad posed "no threat to the health, safety or welfare of the minor child" and that no factors other than John and Chad's unmarried cohabiting relationship militated against overnight visitation.  The court referred to the policy against such overnight visitation as "mandatory" and said the court was required to follow it, so the order requires that Chad not be present during any overnight visitation.  In a simple sentence with no analysis or citation to authority, the court stated that the mandatory policy survived constitutional scrutiny.

In 2010, a Tennessee appeals court ruled, for the second time, that there should no longer be an automatic restriction on the presence of a "paramour" while exercising custody or visitation.  I cannot imagine how the Arkansas Supreme Court can uphold such a "mandatory" rule.  I don't think they need to reach the constitutional claim; all they need to say is what almost every other court says -- that each case should be decided on its individual facts based on the child's best interests.  Given the judge's findings, that should result in an automatic lifting of the restriction.  But it sounded like at least one judge would send it back to the trial court for a new best interests hearing, in other words remand it for further proceedings.  That would be a completely unnecessary waste of time and money for this father, but at least it would clear the path for future parents in Arkansas to enjoy normal, unrestricted custody and visitation rights.

Indiana appeals court limits nonbio mom to visitation

I remember when the parentage of nonbio moms was so invisible to courts that the ability to obtain visitation rights after the end of the couple's relationship was considered a great victory.  The breakthrough case was In re H.S.-H.K. in Wisconsin in 1995.  The court set out a four-part test, and if the nonbio mom could prove each part and filed a court action soon after the bio mom denied her contact with the child, then she could get visitation rights.

Well, almost 20 years later, that result does not seem like much of a victory.  Is it better than the result in Debra H., leaving nonbio moms who are not married to the bio mom and don't complete second parent adoptions without any remedy at all?  Well, of course.  But increasingly, both statutes and court rulings confer parentage on the nonbio mom, giving her parental rights equal to that of the bio mom (e.g., California, New Mexico, Washington, Washington DC, Nevada).  And even without that, numerous states (including some notably "red" ones like North Carolina and Kentucky) allow the nonbio mom to obtain joint custody (or custody) when it is in the child's best interests.

Indiana looked to be one of such states from numerous appeals court rulings over the years.  But last week, in A.C. v. N.J., the Court of Appeals did a backtrack of sorts, reading a limit into prior cases and leaving the nonbio mom with the option of seeking only visitation.  The facts of the case were unremarkable and consistent with other typical scenarios (complete with donor insemination and the nonbio mom cutting the child's umbilical cord in the delivery room).  The couple lived together until the child was two and then the bio mom allowed regular visitation for another nine months.  When the bio mom terminated visitation, the nonbio mom filed for joint custody.

This ruling highlights why the proposed Model Third-Party Child Custody and Visitation Act, promulgated by the ABA Section on Family Law this past summer, is so off base.  The Model Act parties like it's 1995, to use a musical metaphor.  It basically instantiates the In re H.S.-H.K. standard and would limit nonbio moms to visitation.  The drafters may think they are doing a favor for the children of same-sex couples, but if so they are sadly out of step with the recent trends that recognize parentage or at least the right to joint custody for nonbio moms and dads in such families.  Had the language of the Model Act been proposed in 1996, right after the Wisconsin ruling, I would have jumped for joy.  Today it makes me cringe.  Although it would help families in states with terrible law (that's you New York and Maryland), it could easily slow the progress towards equal parenting rights which is spreading across the country.

The Indiana appeals court said it would await a definitive ruling from the state's Supreme Court before going farther than visitation rights. I don't know if this nonbio mom will seek review in that court, but when some parent finally does I hope that court can look at the family before it and see the obvious -- that the child has two parents.

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

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

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

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

Wisconsin appeals court ruling misses mark on nonbio mom's status

My summer blogging hiatus is over.  I've been shocked into resuming this blog by last week's ruling from the Wisconsin Court of Appeals in Bowden v. Korslin.  The opinion contains a bare outline of the facts of Belva Bowden and Amy Korslin's family life.  They had a committed relationship for many years; Korslin bore a child in 1998, whom the couple raised together until they split up in 2006.  At that point the couple signed a written agreement that they would have equal time with their daughter, Alissa, and share her expenses.  In 2008, Korslin cut Bowden's time to every other weekend, and Bowden filed a court action for equal time with the child.  Of the relationship between Bowden and the child, the court simply says that Alissa "views Bowden 'like a mom.'"

Well it turns out that all the appeals briefs are online on the court's website (two thumbs up on that!), so I read a bit more about the case there.  For example, there was a guardian ad litem at trial who advocated equal placement with the two women.  And the guardian ad litem also reported that the child wanted the visitation to go back to every other week in each home. There was also an expert witness, who is mentioned in the court opinion, but whose testimony also referred to the two women as "parents" (in case reading the scanty facts in the appellate ruling leaves any doubt in a reader's mind that this was, indeed, a two parent home). Korslin did not argue that Bowden shouldn't see the child; she said she would continue four overnights a month, but she wanted to pick the nights rather than be stuck with an every other weekend schedule.  She also offered one week in the summer.  Korslin based her factual argument on the fact that for three years the child was having every other weekend visits and there was no detrimental effect on her of the change from every other week.  Korslin repeated that she wasn't cutting Bowden out; she just wanted to control the visitation schedule.

Another interesting fact:  Korslin claimed that she signed the agreement to equal custody because Bowden said if Korslin didn't then Bowden would tell the child who her biological father was.  I don't know if this is true, but it's interesting to me that there was such a known person, who figures not at all in the dispute.  The brief does not say how conception occurred.  In addition, the briefs all use the child's first name, Alissa, which I am therefore using throughout this post. (The opinion uses her initials, A.M.K.)

Nothing justifies that a case filed in 2008 involving a child's placement is being resolved by an appeals court five years later. After all, at this point (but not five years ago) one would expect this 15-year-old to have a lot to say about how much time she spends in which home.  The trial court held hearings over three days between March and October of 2010 but did not rule until August 2011.  The briefs were submitted on the appeal by August 2012 but the appeals court took over a year to issue this ruling.

Anyway, after the trial court awarded Bowden every other weekend, one evening every other week during the school year, and every other week during the summer (which was less than what she wanted), Korslin asked for a child support order, which the trial judge granted.  Korslin then appealed the visitation order and Bowden appealed the child support order.

This is the point at which some Wisconsin history is relevant.  After nonbio moms in the early 1990s were denied all contact with their children in well-known cases in New York and California (and other states), the Wisconsin Supreme Court in 1995 ruled in favor of a nonbio mom, granting the right to visitation when set criteria were established.  What a relief to all of us at the time to have a court understand the child's need for ongoing contact with someone who had been established by the biological mom as another parent.  But, the victory was still short of recognizing that both women were the child's parents.  Today, when many states, including some not so friendly to LGBT rights in general, do recognize that a child has two mothers in the type of family Bowden and Korslin created, the rule established going on 20 years ago in Wisconsin is wholly inadequate and should be replaced.

Bowden is not a "third party" to Alissa.  She is a second parent.  Wisconsin is one of the few states with a state supreme court ruling that second-parent adoption is not permitted in the state, so Korslin and Bowden could not have done that.  But a child doesn't base love and connection on legal doctrine but on lived reality.  And Korslin did not dispute that Bowden had a "parent-like" relationship with Alissa, one of the required findings for awarding Bowden visitation.

The appeals court agreed with Bowden's argument that she could not be required to pay child support because she isn't a parent.  Here Korslin's attorney clearly was asleep at the wheel.  The opinion says that she conceded no statutory basis for the support order and offered no other grounds.  The trial court thought it could order support because of the 2006 contract between the parties, but the appeals court didn't think an agreement to "share all expenses" meant child support.  Plus, even if it was clear, the appeals court said it couldn't be enforced apart from the other provisions of the agreement which primarily concerned the child's placement.  But in other states bio moms have gotten child support on theories of estoppel and other equitable bases.  Korslin didn't make such an argument.

Now I do have a bit of sympathy with Bowden who, after all, was not found a parent for custody purposes.  But the visitation rights she received -- which were affirmed by the appeals court -- were pretty much what noncustodial parents receive.  Denying Korslin child support is wrong, and I cannot see how two wrongs make a right here.  I have no doubt there is bad blood between these two women, but that makes them no different from many separated heterosexual parents, and the child is entitled to appropriate support from both parents.  Oh, and to make matters worse, the appeals court ordered Korslin to repay Bowden all the child support she paid.  Really.

As I mentioned, Korslin was not successful in overturning the visitation order. But on its way to explaining why, the appeals court makes a telling slip.  It says, "Whether to grant or deny visitation to a non-biological parent is within the discretion of the circuit court."  A nonbiological parent? Yup, that's what they say.  Only two paragraphs after referring to Bowden as a non-parent.  Try as it might to deny it, the court actually gets it that Bowden is a parent.  It just can't find its way to make that a holding.

So the analysis of the vistitation granted includes a nod to a 2002 decision on grandparent visitation requiring a trial court to presume that a fit parent's decision regarding visitation is in a child's best interests and making the party seeking nonparent visitation rebut that presumption.  On this point Bowden's lawyer missed the mark.  The opinion says the parties' arguments on appeal assumed that the presumption applied also when a "former partner of the biological parent seeks visitation."  And I confirmed from reading the brief that this is accurate. Why would Bowden's lawyer concede that?  The difference between a child's grandparent and a second parent, who has lived with and raised the child for 8 years, and then co-parented while separated for another two years, is so obvious that I find it shocking that the lawyer never argued that.  (The lawyer could have found the argument in a law review article I wrote over 10 years ago, and in numerous other sources, including cases from other states, as well).  Anyway, the appeals court found that the trial court did apply that presumption and still did not commit legal error or abuse its discretion in ordering the amount of visitation it ordered.

But Bowden did not appeal the court's refusal to award her equal time.  Given the extent of deference to the trial court, she probably would have lost.  But perhaps had her lawyer argued all along the difference between a grandparent and a person in Bowden's position, he would have been more successful in the first place.  Receiving every other week in the summer vastly increases the number of days in the year Bowden and her daughter will spend together, but the six nights a month, albeit on a fixed and predictable schedule, isn't a whole lot more than what Korslin was willing to extend.

Given the inadequate lawyering on both sides, my best news about this opinion is that the court has slated it for non-publication.  A case in which both sides failed to make important arguments shouldn't be precedent for any subsequent case.  But the case is also a reminder that lawyers without expertise in family law disputes between same-sex couples need to seek out those who do have the expertise.

Texas lesbian mom ordered to stop living with her partner

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

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

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

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

Why constitutional arguments don't win for LGBT parents leaving heterosexual marriages

I love the relatively new phenomenon of law reviews creating online editions of short pieces.  It means instant accessibility for ideas that don't need 75 pages in a law review and don't need a zillion footnotes.  So I'm happy to highlight a piece I contributed to UCLA Discourse on the subject of LGBT parents who wind up in disputes with heterosexual ex-spouses over custody and visitation rights.  The piece is called Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles.  It is part of a larger "volume" containing pieces submitted by participants in a UCLA symposium earlier this year called Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries.  You can read all the submissions here.

My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either.  Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification.  I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point.  A parent's sexual orientation can never harm a child.  And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.

The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families.  It's not that way everywhere.

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.

Heterosexual mother behaving badly

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

Mignon Moore's book the subject of session at Law and Society Association annual meeting

I'm back to the world of the blogosphere from a brief hiatus, with lots to report and comment on. First up:

At this year's annual meeting of the Law and Society Association (in Honolulu), I chaired an "author meets reader" session on Mignon Moore's 2011 book, Invisible Families: Gay Identities, Relationships, and Motherhood Among Black Women. I had a distinguished set of "readers" who commented on Mignon's book.  The group consisted of two law professors, Kim Pearson and Catherine Smith; a women's studies professor, Cathy Connolly; an NCLR staff attorney, Cathy Sakimura; and a state supreme court justice, Sabrina McKenna of the Hawaii Supreme Court.

You may have read much research on lesbian mothers and lesbian families that includes the disclaimer about the low number of women of color as subjects.  The title of Mignon Moore's book, Invisible Families, speaks volume about those disclaimers.  With this book, black lesbians and their families are no longer invisible.  Not that one book can appropriately balance out glaring research deficits.  It's just that now we have something to look to.  This book frequently notes different findings about her subjects than those found in research on white lesbians, especially those with feminist leanings/awareness.  (Perhaps the biggest contrast to this book is another that was the subject of a Law and Society session: Transforming Law's Family: The Legal Recognition of Planned Lesbian Motherhood, by University of British Columbia law professor Fiona Kelly.  Most of the families in that book are both white and feminist.  I was honored to be a "reader" at that LSA "author meets reader" session.)

Invisible Families is receiving well-deserved acclaim.  It is the recipient of this year's American Sociological Association Sex and Gender Section's 2012 Distinguished Book Award, which will be presented in August at the ASA's annual meeting in Denver.  In honoring the book, the selection committee wrote:

While Moore’s title reflects the near invisibility of Black lesbian families in the literature on gay and lesbian families, she demonstrates that Black lesbian mothers have in fact become increasingly visible, living openly and crafting and displaying non-normative gender presentations of self in a range of public settings. Moore’s landmark text now makes these women’s lives visible in sociology.

We appreciated her strong analysis of the intersections of gender with race, sexuality and class within a single group. As one committee member put it, “Invisible Families offers a rare piece of in-depth empirical intersectional work that analyzes the complex and nuanced intersections of multiple identities, while still making a clear contribution to sex/gender scholarship.” Moore’s contributions to gender scholarship include her close attention to how women come into “the life,” and how these trajectories impact family formation; how gender displays and the “politics of respectability” operate at various points along these paths; and her analysis of the division of labor and power and gendered notions of mothering within Black lesbian families.

The LSA session on Mignon's book was packed.  I'm most appreciative of the readers for their thoughtful comments, and to the many audience members who participated in the discussion.  This book is a must-read for anyone trying to have a complete understanding of who lesbian mothers are.

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!

Bio mom in Massachusetts continues to press losing argument

As odd arguments go, this is very odd.  Miko Rose is trying to convince the Massachusetts Supreme Judicial Court that Amy Hunter, with whom she was registered domestic partners in California, is not the mother of their daughter because domestic partnership is unconstitutional.  Why is it unconstitutional?  Because the Massachusetts court ruled that same-sex couples must have access to marriage, and granting the rights under a different name -- civil union or domestic partnership -- would not be sufficient.  At oral argument today in Rose v. Hunter (which you can watch for yourself here), the Justices appeared to see right through that; one Justice noted that the constitutional problem came from not extending enough recognition to the relationship, so how could it be unconstitutional to recognize those rights that do fall under domestic partnership (which in California is all rights, including presumptive parentage)?

When I read Rose's brief I was incredulous that anyone could make this argument with a straight face, but Rose's lawyer did just that.  I predict it will attract exactly zero votes from this court.  Actually, I'll go farther and say that there is no way Hunter will lose this case.  A child born to registered DPs in California is presumptively the child of both partners.  While a number of factors might rebut the presumption (e.g., one woman had sex with a man and got pregnant and the other never treated the child as her child, or the couple was separated and the birth mother had partnered with another woman but did not dissolve the DP), no such factors exist in this case.  The couple planned for the child together, conception took place using donor semen, and the couple co-parented until Rose moved to Oregon with the 18-month-old child, obstensibly for a four-to-sex week medical rotation that it turned out was an actual move from which Rose never intended to return to Massachusetts.  Although the couple had broken up before the move, they had continued to co-parent.  At the time of Rose's move to Oregon, Hunter was pregnant with their second child, planned for and conceived while the couple was still together.

The issue of interstate recognition of parentage is huge, and we will see dozens of cases in the next few years. But the big problem arises when the couple, or one of them, moves to a state that does not recognize the dual parentage of two same-sex partners.  Here, Massachusetts is being asked to give "comity" (a fancy word for legal recognition that is not legally required but exists because as a matter of policy a state finds it appropriate) to parentage created under California law.  As a state that does recognize parentage deriving from a lesbian couple's Massachusetts marriage (Della Corte v. Ramirez solidified this in February 2012), there is every reason to believe that the court will extend comity to parentage created under the same-sex couple recognition laws of others states, whether those states provide for marriage, civil union, or domestic partnership.

That Hunter will win this case in Massachusetts in no way solves the big problem I have with Massachusetts law, which is that a couple must enter a formal legal relationship for the state to recognize the parentage of a birth mother's same-sex partner.  If they are not married, and the nonbio mom does not complete a second parent adoption, she can easily be cut out of the child's life, and absolved of financial responsibility, even if she planned for the child and functioned as a parent.  This is the phenomenon I call the "new illegitimacy" because it penalizes children based on their parents failure to marry -- something discredited for children of heterosexuals decades ago.

When I say that Hunter will win, I mean that the court will find her a mother.  There is another issue of course, which is the custody of the child.  The trial court awarded primary physical custody to Hunter, granting joint legal custody and substantial parenting time through visitation to Rose.  The trial court made extensive findings about Rose's attempts to keep the child from Hunter, and about her instability and her inability to meet the child's needs.  Rose claims the trial court did not adequately consider what it would mean to remove the child from the parent with whom she had always lived.  Appeals courts are normally reluctant to disturb trial court findings, but Rose argues that the custody ruling was based not on the child's best interests but on a desire to punish Rose for wrongfully withholding the child from Hunter.  Custody rulings are not supposed to be punitive, so this is at least a plausible argument, unlike the argument on parentage.

The bottom line for this child, however, is that the trial court custody award, which was not stayed on appeal, means the child has lived with Hunter for two years now.  If the appeals court takes issue with the trial court's reasoning, it will remand for a new custody determination, which will take these past two years into account.  The more usual posture for cases like this is that the nonbio mom loses at trial; even if she wins on appeal custody is unlikely to be disturbed because the child best interests at the time of a new hearing will be assessed, and those are likely to favor the status quo.