By complete coincidence, just after I posted earlier this week about restrictions on the custody and visitation rights of gay and lesbian parents, an example of that very thing hit the national news. Carolyn Compton, the mother of a 10 and a 13 year old, and her partner, Page Price, were ordered to separate in order to comply with a provision in Compton's 2011 divorce decree that no unmarried romantic partner could spend the night when the children were present. The judge gave Price 30 days to move out. If she doesn't, the judge could award Compton's ex-husband custody of the children (although no coverage I have seen mentions that). Here is one report that focused on the potential unconstitutionality of the restriction, saying it was ultimately a question for the US Supreme Court.
But as I wrote in my previous post, the Constitution isn't the issue, and Compton is not going to win going down that route. The issue is how the children are doing and what their relationship with Price is like. According to an article in the Dallas Morning News, a "morality clause" banning unmarried overnight romantic partners is standard in several Texas counties. Some accounts focus on the fact that Price and Compton cannot marry, but, as the article I recently published points out, the marital status of the couple should have no significance whatsoever. The focus should be on the children. If a parent remarries and the presence of the spouse is harmful to the children, the fact of the marriage doesn't solve anything and should not absolve the parent from an assessment of whether that parent's choices are good for the children.
For the record, I do believe restrictions on parents' sexual relationships violate their Constitutional rights, but no court in a custody or visitation case has ever ruled in favor of a gay or lesbian parent on Constitutional grounds. Plenty of courts have ruled for gay and lesbian parents by finding that the parent's relationship was having no adverse impact on the children. A few years back, a Tennessee appeals court struck down an automatic provision against the presence of "paramours" (although the court had to do it twice before the trial court would comply).
In my previous post I pointed out that anything a parent does that harms a child should be considered in determining custody and visitation, and that nothing about having a nonmarital partner should be treated differently from any other decision a parent makes. I wouldn't expect Texas to embrace precisely that principle, but it's not too much to expect that an appeals court might require an inquiry, with actual evidence, into the well-being of the children. The couple has made a statement that Price's move will be disruptive and harmful to the children. I can believe it. I hope an appeals court tells the trial judge he has to make an assessment about this family and these children rather than enforce a blanket provision against the presence of unmarried partners. Even in Texas, I believe that's possible.
Saturday, May 25, 2013
Tuesday, May 21, 2013
Why constitutional arguments don't win for LGBT parents leaving heterosexual marriages
I love the relatively new phenomenon of law reviews creating online editions of short pieces. It means instant accessibility for ideas that don't need 75 pages in a law review and don't need a zillion footnotes. So I'm happy to highlight a piece I contributed to UCLA Discourse on the subject of LGBT parents who wind up in disputes with heterosexual ex-spouses over custody and visitation rights. The piece is called Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles. It is part of a larger "volume" containing pieces submitted by participants in a UCLA symposium earlier this year called Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries. You can read all the submissions here.
My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either. Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification. I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point. A parent's sexual orientation can never harm a child. And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.
The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families. It's not that way everywhere.
My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either. Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification. I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point. A parent's sexual orientation can never harm a child. And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.
The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families. It's not that way everywhere.
Thursday, May 16, 2013
Florida: A sperm donor is not a parent -- so far, so good. But a nonbio mom is not a parent, and that's the real problem
In an opinion rendered yesterday in A.A.B. v. B.O.C., a Florida appeals court has reiterated that a sperm donor is not a parent. That's what the Florida statute says, and that's what a previous appeals court held more than a decade ago. A.A.B. applied that statute to find that the trial court was therefore wrong to rule that B.O.C. was the father of 12-year-old C.D.B. in spite of the oral agreement of the parties that he was merely a donor. The appeals court rightly found no distinction based on the fact that the parties performed the insemination at home and not through a doctor.
That's the so far, so good part. The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).
The real problem, however, is lurking in the facts of the case. B.O.C. is the brother of A.A.B.'s former partner, S.C. S.C. and A.A.B. split up when their child was three. They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child. Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C. In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.
So S.C. could not file for custody, and so she pursued a different legal avenue. Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.
This case reminds me of a different series of all too common cases, not in an LBGT context. Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights. The law makes her relinquishment irreversible. So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption. (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).
As I read all those cases, the real issue is that the mother changed her mind. But some states are so quick to accept irreversible relinquishments that she has no recourse. In my mind, that's the real problem in those instances. I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child. And I say this as an adoptive parent, so it's not that I think adoption is bad for children. Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.
In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse. So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child. And it's that lack of recourse that's the problem in Florida.
Giving B.O.C. parental rights would have been wrong. If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART. But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents. All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.
It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child. But the ruling handed down yesterday doesn't raise that issue, and it should stand.
And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time. They could do it now and that would solidify their family. But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child. Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.
That's the so far, so good part. The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).
The real problem, however, is lurking in the facts of the case. B.O.C. is the brother of A.A.B.'s former partner, S.C. S.C. and A.A.B. split up when their child was three. They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child. Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C. In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.
So S.C. could not file for custody, and so she pursued a different legal avenue. Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.
This case reminds me of a different series of all too common cases, not in an LBGT context. Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights. The law makes her relinquishment irreversible. So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption. (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).
As I read all those cases, the real issue is that the mother changed her mind. But some states are so quick to accept irreversible relinquishments that she has no recourse. In my mind, that's the real problem in those instances. I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child. And I say this as an adoptive parent, so it's not that I think adoption is bad for children. Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.
In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse. So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child. And it's that lack of recourse that's the problem in Florida.
Giving B.O.C. parental rights would have been wrong. If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART. But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents. All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.
It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child. But the ruling handed down yesterday doesn't raise that issue, and it should stand.
And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time. They could do it now and that would solidify their family. But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child. Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.
Monday, May 6, 2013
US Supreme Court will rule on this: Who gets a deceased federal employee's life insurance proceeds, his wife or his designated beneficiary, who happened to be a long-ago divorced ex-wife?
I was plenty busy with the same-sex marriage cases and the Indian Child Welfare Act case, so I'm just now catching up on another case the Supreme Court will resolve by the end of June. It's Hillman v. Maretta, a case raising some very interesting questions, which was argued last month on the last day of this Term.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
Friday, May 3, 2013
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.
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.
Tuesday, April 30, 2013
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.
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.
Tuesday, April 16, 2013
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.
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.
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