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.

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.

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.

Massachusetts Appeals Court confirms parentage of same-sex spouse...but marriage shouldn't be the dividing line between a child with two mothers and a child with one mother

In a ruling that could not possibly have come out otherwise, the Appeals Court of Massachusetts ruled last Thursday, in Della Corte v. Ramirez, that the consenting female spouse of a woman who bears a child through anonymous donor insemination is a parent of the child.  This case could not have been decided otherwise because Massachusetts has a statute that a husband who consents to his wife's insemination is a parent.  In a case I have roundly criticized, T.F. v.B.L., the Massachusetts Supreme Court ruled in 2004 that a woman who consented to her partner's insemination was not the child's parent and therefore could walk away with no obligation to support the child.  But the court specifically noted that it would have reached a different result had the couple been married.

Ramirez was "involved in the insemination process and was an integral part of the couple's decision to conceive."  The couple married about two months after conception.  The statute does not require marriage at the time of conception; it refers to a child "born" to a married woman.  Both women's names appear on the child's birth certificate, and when they separated they signed a separation agreement saying Ramirez was a parent and giving her joint legal custody and visitation rights.  Ramirez pays child support.  Della Corte brought an action to modify the joint custody order.  The judge rejected her argument that Ramirez was not a parent because she did not adopt the child, as well as her argument that there had been a substantial and material change in circumstances since the earlier order justifying a change in the custody arrangement.

I don't have any problem with this ruling, as far as it goes.  The problem I have -- and it's a strong one -- is that it solidifies the marital status discrimination of the statute itself.  Without the marriage, Ramirez is still a parent of the child that resulted from the couple's decision that Della Corte would bear a child through donor insemination.  In New Mexico, Washington, and the District of Columbia, a gender and marital-status neutral consent-to-insemination statute would make Ramirez a parent whether or not she and Della Corte married.  In Oregon, she would be a mother by operation of a court ruling that an identical "husband consents to wife's insemination" statute is unconstitutional unless it also applies to a same-sex consenting partner.  In California, Ramirez would be a parent because she received the child into her home and held the child out as her own.  In Delaware, she would qualify as a "de facto" parent under the state's Uniform Parentage Act and would thereby be a legal parent.  None of the mechanisms I've listed depend on whether the couple marries.

I won't jump up and down about parentage law in Massachusetts until there's a marital status-neutral consent-to-insemination statute.  The state that first brought us same-sex marriage should be ashamed to have a distinction between "legitimate" children born to married same-sex couples and "illegitimate" children, deprived of a second parent, if the couple is not married.