Who says a child's two parents have to be a "couple"? Not Canada

With many states requiring same-sex couples to marry before they can both be parents of the same child, it's great to read this story out of Ontario, Canada, about two women committing to parentage without ever having had a conjugal relationship with each other.  Elaan has two parents who are very close friends.

About three years ago, a New York judge allowed a gay man to adopt the child he was already raising with a female friend.  The two friends tried conceiving a child through insemination but were unsuccessful.  They remained committed to co-parenting and arranged to adopt a child from Ethiopia.  Because they were not married, only one could adopt the child overseas.  The woman adopted the child and returned to NY, where the two petitioned to have the man do a second-parent adoption.  In that case, the court had to find that the two friends met the definition of "intimate partners" in the statute.

I want to give a shout out to Angela Kupenda, who wrote twenty years ago about the model of two African-American adults adopting a child together in circumstances where each might hesitate to take on parenting alone.

This isn't uniquely a gay rights issue, but being gay means pregnancy will not happen by chance.  It will take planning.  It calls out for creativity, more creativity than is found in limiting joint parenting to married couples of any gender combination.

It's a trifecta! Massachusetts find nonbio mom to be full legal parent

After wins in New York and Maryland, Massachusetts becomes the third state in three months to recognize the reality of life for children planned for and then raised by same-sex couples.  Today's win in Partanen v. Gallagher is the most satisfying of the three, finding that Karen Partanen is the full legal parent of the two children born to her partner.  The couple planned for those children together, participated in the IVF process that resulted in Gallagher's pregnancy, and raised the children as two parents until they separated when the first child was 5 years old and the second about 21 months old.

The opinion approves several critical legal principles:  Parentage statutes must be read in a gender-neutral manner.  Therefore, Massachusetts statutes concerning parentage of a child born to "a man and woman" not married to each other apply equally to the two unmarried women in this case (and, as a footnote makes clear, to two unmarried men); the two children in this case were therefore born to both Gallagher and Partanen.  The children would have two legal parents if their parents had been married, and the court will not read other statutes in a way that keeps children with unmarried parents from having two parents. Partenan's claim does not infringe upon Gallagher's right to form a family as a single parent because the children were not born to her as a single parent; they had two parents from the very beginning. Also, statutes presuming parentage based on living with a child's mother and jointly holding the child out as the child of both parents are not defeated by the lack of a biological connection between the "holding out" parent and the child.

Kudos to GLAD attorney Mary Bonauto, who also gets a huge amount of credit for the passage of pathbreaking parentage legislation in Maine that took effect July 1, 2016.  That legislation should be a model for other states looking to reform their parentage laws for all children.  Under the Maine statute, the nonbio parents in the New York and Maryland cases, as well as Karen Partanen in this case, would all be the legal parents of their children.

Alison D. overruled! Children of same-sex couples in New York now have TWO parents

When I wrote about the New York Court of Appeals 2010 ruling in Debra H., I observed that the Court had breathed new life into the long-discredited legal status of illegitimacy.  A child born to a married (or civilly united) lesbian couple in New York had two parents; a child born to an unmarried couple had one parent.  That ends today.  The New York Court of Appeals overruled its 25-year-old opinion in Alison D. v. Virginia M. (and the portion of Debra H. that relied on it) and established the rule that the definition of "parent" for purposes of seeking custody of a child includes someone who enters into a pre-conception agreement to conceive and raise a child as co-parents.

That rule settled the cases before the court, In re Brooke S.B. and In re Estrellita A., because such pre-conception agreements existed in both those cases. But fortunately the Court did not stop there. Instead, it said that it was leaving for another day the test that might be appropriate when a biological or adoptive parent facilitates the creation of a parent-child relationship with her partner after the child's conception.

The best thing about the opinion is its definitive inclusion of unmarried couples.  The worst thing about it is a footnote that says the statute would not allow a child to have more than two parents.

My biggest regret:  That Paula Ettelbrick did not live to see this today.

The Archbishop of Canterbury is not the biological child of his mother's deceased husband...and why that matters to same-sex couples

So it seems the Archbishop of Canterbury, who was born nine months after his mother's marriage, was actually the biological child of a different man with whom his mother's had sexual relations.

That may seem to have nothing to do with same-sex couples, but it does.  Right now courts across the country are grappling with whether a married woman's female spouse is the legal parent of the child she bears.  Phoenix family law practitioner Claudia Work told me that, on the same day this past week, two different Arizona judges in two different cases decided that issue in diametrically opposing orders; one applied the presumption and determined that the spouse was a parent and the other said the word "husband" in the parentage statute applied only to a male spouse until the legislature says otherwise.

It's the marital presumption that made the husband of the Archbishop's mother his legal father.  No one rebutted that presumption.  End of story.  At least end of both the legal story and lived story of this family.

This week the New York Times ran a story whose main point was that not so many children are actually the result of extra-marital liaisons.  But to say that the number is not the 8% to 10% of urban legal is actually not to state that there are few such children.  A major research study estimated the number at 1-2% of births to married woman (this can sometimes include unmarried women where the male partner has a high degree of certainty that he is the biological father).  In 2014, there were almost 4 million children born in the US.  Almost 59% of those births were to married women -- a total of almost 2.4 million.  Even if only 1% of those children are not biologically related to their mother's husband, that is 24,000 children per year in the US.  If it is 2%, that's 48,000.

Demographer Gary Gates, formerly of the Williams Institute, estimated from the 2008-2010 American Community Survey that 2% of women in same-sex couples reported giving birth the previous year.  The 2010 Census showed  almost 333,000 female same-sex couples, which translates into about 6,600 children born per year to those couples.

And so to my point.  The fact that a woman's female spouse is not her child's biological parent is decidedly not a justification for denying her the marital presumption.  If someone outside the marriage tries to rebut the presumption, well, resolving that dispute can wait until there actually is a dispute.  Until rebutted, that spouse is a parent, just as every husband is, even though four times as many children -- or maybe double that -- are born each year to married heterosexual couples where the husband is not the biological father.  In almost every state the husband's lack of biological tie does not, in every imaginable circumstance, automatically disestablish his parentage.  The law is more nuanced that that.

And so it should be for married lesbian couples.  Both are the child's parents from the moment of birth until a court says otherwise.

Maryland high court hears important oral argument -- and the other side offers no law

The Maryland Court of Appeals heard argument yesterday in Conover v. Conover (oral argument here).  By now the facts are not extraordinary:  Brittany Eckel and Michelle Conover had a child together using anonymous donor semen from Shady Grove Fertility Center, implanted in Brittany.  Jaxon was born in April, 2010 and given Michelle's last name.  Sometime after the couple split up, Brittany denied that Michelle was Jaxon's parent.  A couple of other facts worth noting.  The couple married when Jaxon was five months old and Brittany changed her last name to Conover.  This should not have any legal significance.  It does highlight, however, that the Maryland "artificial insemination" statute makes a consenting husband the legal parent of a child conceived by his wife with donor semen -- a statute that I would bet the farm the Maryland court would apply to lesbian couple married before the child's birth.  But it is the planning of the child together that should matter, not the couple's marital status. Also, Michelle has since transitioned and is now Michael Conover.  This should also have no legal significance, although it does point out the absurdity of refusing to read the words "father" and "husband" gender neutrally.  (By that I mean that the statutes that create a presumption that a man is a legal father should apply equally to a woman asserting she is a legal mother; otherwise Michael now gets to use them because he is male but could not while he was Michelle and female).  I continue to use the name Michelle in this post, only because that is how he is identified in the court proceedings below and in the briefs in the case.

This case highlights how state specific parentage laws are. As I point out here, if Jaxon had been born in a DC hospital he would have a birth certificate naming both Brittany and Michelle as his parents. There is a good legal argument for Michelle's parentage under Maryland law, as Jer Walter ably argued yesterday.  What was more surprising, however, was how poorly Brittany's lawyer argued. He told the court he accepted Brittany's case pro bono for the sake of the child, and offered "common sense" as the reason the statutes should not be read to give Jaxon's two mothers.  He had to acknowledge that Maryland law makes a husband the father of his wife's child born after donor insemination, but he said that in such cases there was the possibility that he was the child's biological father.  This can only mean that to the outside world it might look like there was such a possibility. That was enough for him.  Frankly, he only said out loud what many who oppose parenting by same-sex couples believe -- that a child has one mother and one father, end of story.  His legal position was that any change to that needed to come from the legislature.  He essentially told the judges not to do their job, which is to apply existing law to the cases that come before them, even if they are cases the legislators who enacted existing statutes did not contemplate.  He invoked Justice Scalia numerous times, again not a legal argument about Maryland law.

The court actually has two issues before it.  One is whether Michelle is Jaxon's parent.  The other is whether to overturn its eight-year-old opinion in Janice M. v. Margaret K. that refused to recognize de facto parents in Maryland.  Only two of the Janice M. judges remain on the court, and the opinion's one dissenter, Judge Raker, is sitting by designation in the Conover case.  Margaret Kahlor, the losing mom in Janice M., was in the courtroom for the argument yesterday. Janice M. should be overturned, but this court should not pass up the opportunity to read Maryland statutes to confer parentage on both members of a couple -- same-sex or different-sex -- who use donor insemination to have a child.

A special shout out to Katie Wright, who was my co-counsel on the brief we wrote on behalf of family law professors from Maryland and elsewhere, urging the court to find that Jaxon has two mothers.

Iowa Supreme Court rules birth mother's female spouse must be listed on child's birth certificate

I've written extensively about the Gartner case, in which Lambda Legal represented a married lesbian couple challenging the refusal of the Iowa Department of Health to place the name of the nonbiological mother, Melissa Gartner, on the child's birth certificate.  Today the Iowa Supreme Court ruled that the Department was wrong.  Mackenzie Gartner gets a birth certificate naming both her moms.  This is good news.

So why am I not celebrating?  In other posts I have criticized this litigation because it helps only children whose moms are married.  I stand by that criticism.  The court's opinion makes me more concerned than ever.  The court says "we recognize the strong stigma accompanying illegitimacy."  Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate?  Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.

But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption.  Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways.  Here is just one example.  Every state has a statute that paternity judgments must be given Full Faith and Credit by other states.  Every state.  Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers.  The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers.  That is the wrong result, and it will hurt many, many of our families.

In this part of the opinion the court also showed that it does not understand parentage law across the country.  In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong.  Here are the two most egregious mistakes.  The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological.  And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.

I actually feel great outrage at this footnote.  It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child.  Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.

So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate.  It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child."  The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way.  As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.

There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate).  Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions.  But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status.  Many states have done this, including states without same-sex marriage.  I have written about them in these posts over the years, so I won't try to summarize here.  But that's what our families need and deserve.

Financial aid changes for children of same-sex (and other unmarried) couples

I have consistently pointed out that marriage and parentage are two separate matters and that parentage for two same-sex parents can exist regardless of marriage.  I also say (repeatedly) that marriage shouldn't be the bright dividing line between who is in or out of any law or regulation.

Well, comes the Department of Education taking both these principles to heart.  If you have college-bound children, listen up.  The DOE is changing the way it calculates the income available to a student when considering how much financial aid s/he is eligible for.  Now when a child has two parents, not married to each other, and those parents live together, the income of only one parent is counted.  In the future, the financial aid application (FAFSA) will collect income information on both parents.  The new application will also use gender neutral terminology (like "parent 1" and "parent 2").

This makes sense to me.  Although most states end the obligation to support a child at 18, the government assumes for all children that those whose parents have more income should qualify for less financial aid.  That leaves more for those whose parents cannot contribute as much, even if they would like to.  Given that reasoning, all parents should be treated alike.  It is parentage, after all, that creates whatever legal obligations do exist, and it is incoherent to treat student A, whose parents live together and earn $50,000 and $30,000 respectively, differently from student B, whose parents live together and earn $50,000 and $30,000 respectively, simply because student A's parents are married and student B's parents are not.

The new regulations will apply to children with unmarried heterosexual parents and with same-sex parents, married or not.  (Again, the parents must live together.) The press release explains, rightly so, that this new approach does not violate DOMA because it turns on who the child's parents are, not whether those parents are married under federal law.  Years ago, under a Republican administration, the Justice Department found that it is not a violation of DOMA to allow a child to get benefits from Social Security as a result of the disability of the child's nonbiological mother in a Vermont civil union with the child's biological mother.  The significant legal question was whether under state law, the child could inherit from the nonbiological mother under the rules of intestate succession.  The answer to that in Vermont was yes, and that was that.

This FAFSA change will not be wrinkle free for same-sex couples.  I don't think all couples know whether they are both legal parents.  If they have done second-parent adoptions (or gotten parentage judgments), they do.  But in a number of states parentage exists without a second-parent adoption based on statutes concerning children of donor insemination or those based on "holding out" a child as one's child or otherwise functioning as a parent.  How are those parents supposed to understand distinctions that sometimes baffle lawyers? I'm guessing the DOE thinks that if a lesbian couple is married or in a civil union or comprehensive domestic partnership, then both are parents.  But how about the couple who lives in Virginia, where there is no relationship recognition, but married in DC?  Will DOE count them both as parents?  That doesn't exactly seem right, since presumably if a Virginia nonbio mom dies her child does not inherit by intestate succession.

I mean, really, those of us with deep expertise in this area of law sometimes cannot be sure if someone is a child's legal parent. It's unrealistic to think that individual parents will always know this.

Then again, the FAFSA does not reflect legal obligations (since most states end the support obligation at 18), so why will two couples be treated differently depending on whether both people functioning as parents are considered legal parents in their state?  It's odd to think that a child whose family lives in a nonrecognition state where second parent adoption is not allowed (let's take North Carolina) will qualify for more financial aid than a child in whose family has the same exact income but lives in a state where the parents were able to do a second parent adoption (let's take New Jersey).

There is one other point worth considering.  Will there be families who are financially disadvantaged because the couple's marriage is not recognized under federal law who will nonetheless have both incomes counted for their child's financial aid?  When both parents earn the same amount of money the FAFSA will show much more parental income.  But that couple actually does better being unmarried under federal tax law.  When one parent earns almost all the income, the couple would do better filing federal taxes as a married couple, but they also won't have a lot more income to count adding the second parent's income to the FAFSA.

For the moment I am giving a thumbs up to the administration on this.  They are rightly focussing on parentage, not marriage.  Here is the press release.  Proposed regulations will be out this week.  then we'll know more.

Defining parentage under the Indian Child Welfare Act -- why it matters

The Supreme Court will rule in a family law dispute this term, an unusual enough circumstance.  This one is in federal court because of a federal statute -- the 1978 Indian Child Welfare Act.  ICWA is an important statute, designed to reverse the shameful practice of removing Native American children from their families and placing them for adoption with White families.  The most important fact to remember here is that Indian tribes have a type of sovereignty no other sub-group of our population possesses, and for good reason.  We (the United States) did steal their land, and the little bit of sovereignty we allowed them through various treaties is all they have left of what was once theirs.  One of the most important provisions of ICWA says that for children whose parents are domiciled on a reservation, the tribal courts, not state courts, have the authority to decide who adopts a child those parents place for adoption.  That jurisdictional provision of ICWA is not at stake in this case.

Instead, the case is a conflict between the decision of the child's non-Indian birth mother, Christy Maldonado, to place her child for adoption with a couple, the Capobiancos, in South Carolina, and the subsequent claim of the biological father, Dusten Brown, a member of the Cherokee Nation who wants to raise the child himself.  Every state has specific statutes designed to identify those unmarried fathers whose consent to an adoption is required.  Without such statutes, precious time could pass without placing the child in a permanent home while agencies tried to track down anyone who might be the biological father, and men with nothing but a biological connection to the child could undo an adoption on that basis alone after a child was fully embedded within her adoptive family.

The critical fact for this case under South Carolina law is that Dusten did not live with Christy for the six months prior to the child being placed for adoption and did not support the child or pay for any expenses connected to Christy's pregnancy.  If he had met one of those criteria his consent to the adoption would have been required.  But he didn't.  The US Supreme Court has to decide whether a biological father who is enrolled in an Indian tribe need not meet those requirements.  ICWA does indeed define a parent by biology with no qualifications, except that it reads that "it does not include the unwed father where paternity has not been acknowledged or established."  Of course Dusten did acknowledge and establish his paternity, but not until the child was four months old and he realized the child had been placed for adoption.  While Christy was pregnant, Dusten told her in a text message that he would surrender his parental rights rather than pay child support, but he says he thought he was surrendering his parental rights to her, which made sense to him since he was about to deploy for Iraq.  He says he didn't realize the child was going to be adopted until he received papers to that effect when the child was four months old (and had been with the Capobiancos since birth), at which time he got a lawyer to fight the adoption and got the Cherokee Nation involved as well.  He doesn't come off well for implying (or flat out stating) that he didn't want to pay child support, but that won't matter if South Carolina law is inapplicable to Indian fathers.

Here are the things I am keeping in mind about this case.  Dusten is not challenging the South Carolina law.  He is not trying to expand the constitutional rights a man has to raise a child based on biology alone.  This is important.  Lesbian couples often use known donors to have a child.  State laws do vary on this (and in some places there are no laws and no relevant case law precedent), but Supreme Court cases establishing constitutional principles do make clear that biology by itself is not sufficient to create a constitutional right to raise a child.  In an important Kansas case some years ago, the Kansas Supreme Court upheld the constitutionality of a state statute that a semen donor was not a legal parent absent an agreement in writing with the recipient to the contrary.  There is no danger that the current case involving ICWA will produce a constitutional ruling that throws a decision like that into question.

On the other hand, the brief of some law professors I greatly admire, who are supporting the father, includes a sentence that "children deserve to grow up with their biological parents when it is possible and safe for them to do so."  This is precisely the kind of thinking that leads courts to rule against nonbiological mothers and fathers who have raised children with a same-sex partner.  It is also the kind of thinking that can accord a semen donor parental rights over the objection of a lesbian couple who were expecting to have the authority over their child's life. I suspect those lawyers support same-sex couples raising children.  But when I see a sentence like that in support of the father I blanch.

Even outside the context of same-sex couples raising children, I think a woman who bears a child is entitled to maximum flexiblity in making plans for that child. She can, after all, have an abortion.  If she chooses adoption instead, when she has reason to believe she won't get support from the child's biological father or when he's the kind of guy she is pretty sure will not be a good parent, she should be able to effectuate that plan.  Every state gives an unmarried father the right to raise his biological child if he fulfills certain basic requirements.  Dusten was still in the country when this child was born.  He wasn't there.  He thought his text message meant he was surrendering his rights to Christy.  Well, he must have really meant he was walking away since he made no efforts to find out anything about the child after she was born.  Christy wasn't hiding.  Dusten doesn't allege that she was.  There are cases of men who assert they want to raise their child, who make it clear to the pregnant woman that's what they want.  Dusten isn't anywhere close to that category.  The law in South Carolina gave him a fair shot at being a father and he blew it.  His regrets about that shouldn't amount to a basis for disturbing an adoptive placement.

But, I keep in mind that tribal sovereignty is regularly under attack from the right.  ICWA is sometimes characterized as racially discriminatory because it mandates a preference for adoptive placement with a tribal member or a member of another tribe before placement with a non-Indian.  That characterization, however, overlooks the tribal sovereignty issue at the heart of ICWA. You can oppose restrictions on interracial adoption and still understand why the law can prefer placement of Indian children with Indian parents.  In addition, a minority of courts have narrowed the scope of ICWA to find that it only applies to a child already living in an existing Indian family (which this child obviously was not).  The adoptive parents in this case are asking the Supreme Court to interpret ICWA in that narrow way.  That would be wrong.

When I ran the facts of this case by my (not a lawyer) partner, who has a percentage of Indian blood but is not, nor was her mother, an enrolled tribal member, she wanted to know whether the father was actually connected to his tribe.  I realized that I had not flagged that as a relevant issue so I looked more closely at the facts in the South Carolina Supreme Court opinion.  That opinion relates part of the home study done in the case and demonstrates the connections of the father's parents to tribal customs and cultural practies.  That was enough for my partner.  It satisfied her that placement with the father was really going to connect the child to her Cherokee heritage and that this isn't a situation where ICWA amounts to a "loophole" getting rights for a biological father who initially showed no interest in being a parent.  News reports mention the father's miniscule proportion of Indian blood (and so the child has even less), but the Cherokee Nation says he is Cherokee and that has to suffice.  Every tribe has its own definition of who is eligible for enrollment as a tribal member, and it is certainly not the place of anyone outside the tribe to question that.

There are other specific details of what was and wasn't done when this child was an infant concerning the tribe.  For example, the child was born in Oklahoma and the adoptive parents (who were present for the birth) needed paperwork to take the child back to South Carolina with them.  That paperwork did not identify the child as an Indian child.  Had it, the tribe says it would have blocked removal of the child from the state.  Also, the mother did report the father's Indian background but a check with the Cherokee Nation showed him not a tribal member.  Problem is, his first name was spelled incorrectly and his date of birth was incorrect.  Deliberate or accidental?  I don't know.  It does mean everyone acknowledges that rules governing Indian children had to be taken into account in the first instance.

But here is another fact that troubles me.  I feel for the adoptive parents, who had been unable to have biological children.  I'm an adoptive parent.  They knew the father had texted his willingness to surrender parental rights and really didn't think he was going to be a barrier to the family they were creating with their daughter.  But they found out the contrary when she was four months old.  They did have the option of turning her over to Dusten at that point and chose not to.  They made an open adoption arrangement with Christy.  I wonder if they tried this with Dusten.  Were they full of love for this child?  Of course.  Reluctant to put themselves through the pain of giving her up?  Of course. Scared their dreams of a family with children would be dashed forever? Of course.  But now the talk is how the South Carolina Supreme Court ruling took a 27-month-old child away from the only parents she had ever known.  If that's what tips the equities towards the Capobiancos, aren't we encouraging other possible adoptive parents to keep litigating when they should actually minimize the heartbreak all around by returning the child to a biological parent who stands a good chance of winning?

Here it is, almost 1:30 pm on the day of the oral argument, which ended two hours ago. ScotusBLOG has just posted its recap of the argument. I can't find any news reports yet about the argument.   What a constrast to last month's same-sex marriage cases.  It may mean just that the public is less interested in Native Americans than in gay people, but I consider that a sad commentary.  We aren't undoing the warfare and land grab that displaced Indians from their homes, but ICWA takes a shot at undoing the efforts to obliterate tribes by stealing their children.  I take it very seriously.  I hope the Court does also.

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.

Birth certificate? Parentage? -- Iowa Supreme Court to hear case Tuesday -- live streaming available

I've covered Gartner v. Iowa Dept. of Public Health since its inception, with a fair amount of criticism.  This is the case filed by Lambda Legal challenging Iowa's refusal to put the name of a birth mother's same-sex spouse on a child's birth certificate.  The challenge was successful at the trial level (limited to children born of unknown donor insemination, as I discussed in my prior post).  Tomorrow, Tuesday, December 11, oral argument in the case will be heard by the Iowa Supreme Court.  The court live streams its oral arguments, so you can watch it here.  The case is on the docket for 1:00 pm Central time, but it is the second of three arguments scheduled at the time so it may begin later in the afternoon.

The state's briefs make clear that its position is that Melissa Gartner is not the mother of Mackensie, the child born to her same-sex spouse, Heather.  So the case is not just about the birth certificate; it is about parentage.  The state has nothing against same-sex couples raising children; it just believes that Melissa must adopt Mackensie to be her mother.  Now the truth is that LGBT legal groups have been urging married nonbiological mothers to complete second parent adoptions, even if their names appear on their child's birth certificate.  That's because parentage derived from marriage is vulnerable in states that don't recognize those marriages.  (Here's an example from GLAD).  In Gartner, Iowa is using that advice to support its position.  Because Gartner's parentage is vulnerable without an adoption, the state says, it's appropriate to require adoption, as that's the only way to really protect Mackensie.

Iowa argues that placing a husband's name on a birth certificate reflects the likelihood that he is the biological father, something that will be true, it estimates, 95% of the time.  The state claims the birth certificate information is used for various public health purposes and that its purpose is to record biological parentage.  If it is actually true that 5% of Iowa births to married mothers are for children not biologically related to her husband, then there are far more such children than children of lesbian couples.  So the biology argument really does not ring true.  (And Iowa doesn't ask if a mother conceived with a donor egg, so a child may not be the genetic child of the woman who gives birth).

Iowa is the only state allowing same-sex marriage (or DP/civil union) that refuses to place the married/DP'd/CU'd nonbio mom's name on the birth certificate.  But -- and this is the hardest fact for nonlawyers to grasp -- the birth certificate does not prove parentage.  It is evidence, and it generally creates a presumption, but it does not make someone a parent.  Legal parentage is dependent on parentage law, not birth certificates or birth certificate law. So, if a state's law allows a parentage presumption to be rebutted based on biology, a mother's female spouse, even if she is on the birth certificate, may find herself not a parent.

A number of family law professors, myself included, filed a friend of the court brief arguing that Iowa law does not permit automatic rebuttal of the presumption of "paternity" if the husband is not the biological father.  That should entitle a female spouse also to be a presumptive parent.  I joined this brief because equating parentage with biology is the wrong principle, and I oppose the state for taking that position.  But, and this is a big but on my part, and it's what I discuss in my prior posts, a win in this case will help only children of married lesbian couples in Iowa.  It will mean that Iowa joins New York and Massachusetts in discriminating based on the marital status of a child's lesbian parents, something I abhor.

The best law reform for children of LGBT couples tracks something like the Uniform Parentage Act, with certain modifications.  I've written here about how DC does it.  California courts have done a great job of interpreting its older version of the UPA. Functioning as a parent creates a presumption of parentage.  Delaware defines parentage to include de facto parents. These have nothing to do with the marital status of a child's parents.  I wish Lambda had worked with family law practitioners and professors in Iowa on legislative reform not limited to LGBT families, and certainly not limited to children of married lesbian couples.  The legislature may not be LGBT friendly, but that need not get in the way of parentage law reform, something Iowa desperately needs.

Whatever happens in Gartner, I hope that will come next.

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.

What today's US Supreme Court ruling in Astrue v. Capato might mean for children of LGBT parents

In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines "child" for purposes of receiving survivor's benefits when a covered employee dies.  Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert.  The twins were conceived by IVF after Robert's death using semen he had frozen before this death specifically for that purpose.

Karen claimed the children were entitled to benefits because they inherently met the definition of "child" since they were the biological children of married parents.  The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits.  Under the law in Robert's domicile at the time of his death  -- Florida -- children conceived post-death do not inherit without a will, so the twins were not Robert's children for purposes of receiving benefits.

In Astrue v. Capato, the Supreme Court ruled in favor of the SSA.  Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels.  First, Karen's claim was that the children were so obviously Robert's children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition.  Why was this so obvious? Because, Karen argued, they were the biological children of married parents.  I took great pleasure in Justice Ginsburg's criticism of that argument.  Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should "eliminate the intestacy test only for biological children of married parents." (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between "children whose parents were married and children whose parents' liaisons were not blessed by clergy or the State."

I also like that the opinion is clear that neither marriage nor biology is necessary to be the "child" of a deceased worker for purposes of survivor's benefits.  The opinion specifically cites to statutes that say a semen donor is not a parent to illustrate that "a biological parent is not necessarily a child's parent under the law."  As for marriage, the opinion says that "marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child's parentage is uncertain.  An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain."  By explicitly separating the definitions of parent and child from both marriage and biology, the opinion creates space for definitions based on other criteria, including ones that recognize the parentage of children raised by same-sex couples.

The catch is that the SSA will look to the law of each state, and specifically to the state where the deceased worker was domiciled.  Within that state, the SSA will look to intestacy law.  So the patchwork of laws affecting gay and lesbian families will continue to produce dramatically different consequences across state lines.  Of course that's also what happens to other children -- including the twins who were the subject of the Capato case; the opinion cites the statutes of several states that do allow posthumously conceived children to inherit, but Florida -- where Robert was domiciled -- does not.

As for our children, we assume that an adoption decree from one state will get Full Faith and Credit in every state.  But will it mean that in every state that child can inherit from the nonbiological parent in the absence of a will?  Probably yes. Without an adoption, it will be much more of an uphill climb.  When parentage derives from a consent-to-insemination statute in a different state or from a couple's marriage/civil union/domestic partnership elsewhere, the SSA might find that the state would not consider the child to be the deceased's child for intestacy purposes.  In that case, bye bye Social Security survivor's benefits. BUT...this is the time for me to remind everyone that the 2008 amendments to the Uniform Probate Code Section 2-120(f) do grant a child the right to intestate succession from a person -- male or female, married or unmarried -- who consents to a woman's insemination with the intent to be a parent.  And there is an old doctrine of equitable adoption that allows a child to inherit even if there was no actual adoption.  There are some states whose laws are not friendly to same-sex couples and their children, but if those states have the 2008 UPC amendments or a robust doctrine of equitable adoption, a child there may still qualify for SSA benefits.

Also, I want to remind everyone that the SSA has already ruled (and this was in 2007, under the Bush administration) that a child born to a couple in a Vermont civil union is eligible for disability benefits from the nonbiological mother, and the Justice Department has determined that granting those benefits does not run afoul of the Defense of Marriage Act.  Here is the opinion letter.  And the reason is because the child was eligible to inherit by intestate succession in Vermont, where the disabled worker was domiciled.  Period.  But had the family moved elsewhere, it would have been that state's law that SSA would look to.

So that the bad news -- and the good news -- in today's opinion.

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.

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

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

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

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

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

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

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

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

New California statute protects nonbiological parents

Last Friday, California Governor Jerry Brown signed the Protection of Parent-Child Relationships Act. This groundbreaking statute will solve a problem I wrote about last year in this post. Because federal law allows the mother and biological father of a child to sign a Voluntary Acknowledgement of Paternity (VAP) that makes the man a legal parent, the following scenario is possible: Lesbian couple raises child as two moms; under California case law, nonbio mom is presumptive parent because she received the child into her home and held the child out as her own; lesbian couple splits up; bio mom and known semen donor sign VAP, which makes man the legal father and rebuts the nonbio mom's presumption of parentage. That is what Maggie Quayle tried to do to Kim Smith. And she had on her side a 2009 California appeals court ruling that a VAP signed by a biological father trumped the presumptive parentage of a nonbiological father. Kim Smith testified in favor of this law reform effort.

Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.

Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.

Parentage not tied to marriage is better...but how to get lesbian couples to understand this?

The DC Gay and Lesbian Activist Alliance Forum noted last week that a married lesbian couple was told by Sibley Hospital in DC that they would have to present their marriage license to get both of their names on the birth certificate of the child that one of them gave birth to. After alerting members of the DC City Council who enacted parentage reform in 2009 (see here for more info on the law), three members sent a letter to Sibley decrying discrimination against the couple. (link to letter on GLAA Forum website). It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a marriage certificate then they cannot make such a request of a same-sex couple.

But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.

This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.

If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.

A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.

And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.

So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.

The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.

My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.

NY Times highlights family trees complicated by assisted reproduction

It's shaping up to be a banner week for the New York Times attention to LGBT families. Yesterday's paper edition included a front page article, "Who's on the Family Tree? Now It's Complicated."

Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).

Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.

The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.

This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.

One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.

There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).

Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.

Complicated, indeed.

Washington state enacts comprehensive parentage statute

Earlier this month, Washington state enacted a version of the Uniform Parentage Act that will recognize parentage in numerous family situations. The legislation is effective on July 22, 2011 and applies to all causes of actions filed after that date. Proposed legislation on surrogacy was withdrawn from the bill and is therefore not covered in this statute.

The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."

In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.

The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own." A proceeding to adjudicate parentage when a child has a presumed parent must be brought within four years of a child's birth unless the presumed parent did not live with (or have sexual intercourse with)the other parent during the probable time of conception and never held the child out as his/her own (in which case it can be brought at any time).

It is a real thrill to me to see so many provisions of the DC parentage statute adapted to another state. Washington already recognized "de facto" parents under its case law. That status will remain important in instances when this parentage statute does not apply, such as an adopted child. But because this statute applies to any court action filed after its effective date, some nonbio moms who would previously have been "de facto" parents will now be parents under this statute. To the extent that the "de facto" parent status had some ambiguity (like whether it conferred the right to inherit by intestate succession) the new statute assures the existence of a parent-child relationship for all purposes.

Congratulations to the advocates who worked tirelessly on this legislation, especially Seattle lawyer Pat Novotny.

Nonbio mom, Sondra Shineovich, successful on remand from Oregon Court of Appeals

In 2009, I wrote extensively about the Oregon Court of Appeals ruling in Shineovich v. Kemp. The court held that the consent of a biological mother's same-sex partner to her insemination, with the intent to parent the resulting child, made the nonbio mom a legal parent. The court reviewed the state's statute making a husband the parent of a child born to his wife using donor insemination to which he had consented. Then the court found it unconstitutional to deny that status to a woman's same-sex partner.

The appeals court sent the case back to the trial court for a determination of the status of the nonbio mom, Sondra Shineovich. The trial court heard testimony over four dates last November and December and admitted 110 exhibits into evidence. Judge Katherine Tennyson of the Multnomah County Circuit Court made written factual findings, in a letter to counsel dated March 31, 2011, that Sondra and her partner, Sarah Kemp, had a "committed partnership which intended, in addition to financial interdependence, to produce and raise children together." The judge further found that

It is also overwhelming [sic] apparent from all credible evidence on this record, that the parties worked together to achieve the goal of conceiving and raising children. There is no question that Shineovich consented to this process. She contributed with her actions, money and emotions. This goal was a topic of discussion between Shineovich and Kemp and was a joint effort between them. These children were an integral part of their partnership.

Although Kemp told the court that the decision to have the children was "'my process; my children'", the court found that view "not supported by the credible evidence in this case." The evidence included numerous witnesses, including Kemp's aunt, and many "cards, letter, video and documents created contemporaneously with events" that contradicted Kemp's testimony at the trial as to her "memory" of past events. The court also found that the older child, Parker, "viewed Shineovich as his parent in every sense of the word." Kemp was pregnant with the younger child when she moved out of the family home in 2006.

The court ordered the parties to schedule a conference to set a hearing date to determine the issues of custody and parenting time.

Shineovich was represented at trial by Owens, Sneller, Pinzelik and Wood, P.C., who issued a press statement about the ruling.

Focus in Iowa should be children of all lesbian couples -- not just those whose moms have married

Earlier this month, the Des Moines Register began an article as follows: "The next legal battle over gay rights in Iowa could come from a same-sex couple determined to have both their names listed on their child's birth certificate."

Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.

This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).

Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.

For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.

This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.