Can a step-parent be a de facto parent?

The Supreme Court of Washington ruled last week that a stepparent cannot be a de facto parent. Five years ago, that court acknowledged, in In re L.B., that a nonbiological mother in a lesbian couple was the de facto parent of the child she had raised from birth, for six years, with the biological mother. In last week's case, In re M.F., a six-member majority ruled that a court must decide whether the de facto parentage doctrine applies before applying the factors used to determine if someone is a de facto parent. The court found that it could not apply to a step-parent, at least not when the child already has two legal parents.

In the case, M.F. was born to married parents, Patricia Reiman and Edward Frazier, who separated shortly thereafter and then divorced. The mom had custody and the dad had visitation rights. The mom remarried when M.F. was two years old, and that marriage produced two sons. When that marriage dissolved, the mom and dad, John Corbin, split the time with their two children, but M.F. was usually with the boys when they stayed at their father's. Three years later Corbin petitioned to change the parenting plan with the boys, and the mom stopped sending M.F. when the boys went to their dad's house.

Even though Washington lacks a specific statute on stepparent custody and visitation, the court said there was such a statute (as far as I can gather they meant that there was a third party custody statute which the courts had applied to stepparents). Oddly, the third party custody statute referred to the best interests of the child but the case law said the third party would have to show parental unfitness or actual harm to the child to gain custody.

The majority made two reasonable points. It is different to plan for a child from the beginning. The parents in L.B. would have been parents from the start under the DC parentage statute; they were the functional equivalent of a husband and wife who have a child using donor semen. (The child is born with two parents, even though one parent is not biologically related to the child.) The other reasonable point was that the de facto parent test in L.B. might be satisfied in many, or maybe even most, stepparent situations. In most cases, the parent will foster a parent-child relationship, the family will live in the same house, and the stepparent will function in a parental role. That should not always make the stepparent a person with the same right to custody as the child's legal parent.

But the majority's ruling is really predicated on a notion that is fundamentally flawed -- the idea that a child cannot have more than two parents. The three dissenting judges agreed that the majority was too fixated on the fact that the child already had two parents. That should not be test. It's time for law to recognize the fact of children's lives...that many have more than two functional parents. According to the dissent, M.F.'s father supported the stepfather's efforts to be named a de facto parent. M.F.'s mother is the one who facilitated the development of the parental relationship between the child and Corbin -- who came into the picture, after all, when the child was just over a year old. The dissent notes (and the majority ignores) that M.F.'s therapist believes the Corbin is a de facto father and that losing him would be devastating for the child. (This should meet the actual harm standard the majority presents, but there is no mention of that).

The Northwest Women's Law Center filed a friend of the court brief specifically to urge the court to recognize that a child can have more than two parents. The ACLU also filed a brief on behalf of the stepfather. Both organizations strongly support the rights of parents to raise their children and want to protect those rights against inappropriate incursion. But it is possible to do that through a carefully crafted and applied rule, under which some, but not all, stepparents are recognized as de facto parents.

And the dividing line among stepparents shouldn't depend on whether a child already has two parents. By drawing that line, the Washington Supreme Court is treating a child with one parent (usually a mother) as having less of a family that a child with two parents. Wrong, wrong, wrong. A single mother may have a new partner who should not be considered a de facto parent. A divorced mother may have a new partner who should be considered a de facto parent. This is a court that has stepped up to the plate in several cases to recognize functional families -- both couples and parents. Not here. Here they were blinded by the number two.

It may turn out not to be so bad for this child, who is now 16 years old and who had visitation with her stepfather pursuant to temporary orders during much of the course of this litigation. I hope she will have a lot of say in what kind of relationship they have going forward. But for other children in Washington state, the case establishes an unsurmountable obstacle to recognizing the reality of their lives.

Tomorrow is last day to propose a panel for conference on lesbian lives in the 1970s

The Center for Lesbian and Gay Studies at CUNY (the City University of New York) is hosting a conference October 8-10 entitled, "In Amerika They Call Us Dykes: Lesbian Lives in the 1970s." Tomorrow is the last day to respond to their call for papers. I've submitted a proposal to speak on the emergence of the first legal issue specifically identified as lesbian: the right of a lesbian mother to leave a marriage and maintain custody of her children. I also hope to discuss my co-founding of and work with the DC Feminist Law Collective.

If you lived a lesbian life in the 70s, think about being part of the historical record that this conference will document. If you've studied lesbian life during that period, please come share what you know. Your proposal can be brief (500 words), so you've got time to submit it, even at this late date.

How same-sex couples fill out the 2010 census form -- is it really asking how we think of our relationships?

If thinking of yourself as married to your partner turned you into husband and husband or wife and wife, then we wouldn't need a marriage equality movement, right? So imagine my puzzlement to find gay organizations instructing us to fill out the 2010 census based on how we think of our relationships. The Williams Institute, to whom I turn for all things demographic about gay men and lesbians, offers this advice, which other groups are repeating:

Same-sex couples who have been legally married or consider themselves to be spouses should identify one person as a "husband or wife".

Other same-sex couples may be more comfortable using the term "unmarried partner". In general, this designation is designed to capture couples who are in a "close personal relationship" and are not legally married or do not think of themselves as spouses. (emphasis mine).

Now I understand the census is an imperfect instrument (very) for counting our relationships. If a couple does not live together, they will not be counted, because the census counts households and the relationships of the people in each household. There is also no option for those who are registered as domestic partners or in civil unions. I applauded when the Williams Institute and others won from the Obama administration the right to be counted as same-sex spouses when they were same-sex spouses.

But now it appears that labeling the person you live with your husband or wife is actually not going to measure the number of same-sex married couples but rather the number of couples who consider themselves spouses, whatever that means -- and I truly do not know what it means.

Gary Gates, demographer par excellence at Williams, explained to me that the census does not ask marital status. In other words, it does not ask you to say whether you are single, married, divorced, etc. He's right. But it does seem to me that asking us to choose "husband/wife" or "unmarried partner" actually is asking us to say if we are married. Admittedly, whether we are married can be contingent. Those couples who have married in a state or country that allows same-sex couples to marry are married in some places. I think they should mark the "husband/wife" box. Those who have not married are "unmarried partners." To me that is not a lesser status; it's just a different one.

The Williams Institute materials are clear that you can identify only one adult in your home as a "husband/wife." What about those who consider themselves married to more than one person? If the line isn't legal recognition, what is the limiting principle?

How about those who have entered a civil union or the kind of domestic partnership that confers virtually all the state-based consequences of marriage? This is a challenge. My partner and I have been registered domestic partners for many years. When I look at the census form I gravitate to "unmarried partner" because we are not married (and we don't plan to marry even though DC now allows it). Yet I admit that some couples who enter this status because it's available where they live may well consider each other husband/wife, and since there is no way to accurately capture their legal relationship then I'm okay with selecting whichever designation fits their own understanding.

But here's another puzzle in the advice from Williams. What does it mean to say that we "do not think of ourselves as spouses"? Either "spouse" has a meaning and you either are or are not, or, well, it has no meaning at all. If my partner and I were to marry I am not sure I would think of her as "my spouse" if that means some traditional notion of marriage. I know I would never call her my "wife." But if we marry, am I not supposed to check the "wife" box for her regardless of how we think of ourselves?

I've tried to think of this from a straight person's point of view. What do an engaged couple living together mark? "Fiance" is not an option, and they may never have thought of each other as "unmarried partners," but they know they are not yet husband/wife. What do they check? Or...how about the couple who think they are "common law" married but they aren't, because their state does not recognize common law marriage (only 10 and the District of Columbia do)? They will check "husband/wife" and it won't be accurate.

Gary Gates tells me that the Census Bureau wants all people who are not sure what to check to select the answer that best reflects their household as they understand it. I could not find that advice anywhere on the Census2010 website. But I did call the census "help line" and said I was in a same-sex registered domestic partnership and did not know which box to check. The person I spoke with said it was my "preference," and if I saw her as a "married partner" I should check "husband/wife" and if I saw her as a "unmarried partner" I should check that.

Gates also says, and I suspect he is right on this, that no amount of education by gay organizations would yield an accurate count of legally married same-sex couples given the constraints of the form itself. So what will gay groups say the census has shown once it's tabulated? Will they qualify the number of claimed "married couples" with the caveat that it is couples who think of themselves as married? I'm guessing there will be comparison of the geographical location, income, etc of those who identify as same-sex unmarried partners and those who identify as same-sex husbands/wives, rather than simply an adding together of the two catgories to tell us about same-sex couples in general. But the categories are unstable and I have trouble imagining what legitimate conclusions could be drawn from the raw data.

And here's another tantalizing nugget from Gates. Apparently the American Community Survey forms (they replaced what were once census "long" forms) ask both marital status and the relationship of the people in the household, and more same-sex couples check "husband/wife" than report being married. He's trying to sort out what that means. Fascinating, isn't it? He's going to have lots more sorting to do over the next several years.

Understanding the adoption tax credit for second-parent adoptions

I think everyone knows that marriage affects the amount of taxes we pay; sometimes we pay more as married couples and sometimes less. Tax savings is not a good reason to support same-sex marriage because, among other things, for equal earning couples they will pay more as a married couple than as two single people. (The marriage "bonus" subsidizes families with one high income earner; the marriage "penalty" hurts families with two relatively equal earners).I'd like to see taxation based on individual status not marital status, as many countries do, but that's another story....

Well, if you are doing a second-parent adoption, from a federal tax standpoint it is definitely better not to be married. That's because the adoption tax credit allows a person who adopts a child to claim a credit that can be as high as about $12,000, and this credit greatly reduces the expense of the second-parent adoption because it applies to the cost of both a home study and legal fees. The credit is not available for step-parent adoptions. Since federal law does not recognize a same-sex couple as married, even if they are married under state law, their second-parent adoption is not a step-parent adoption and the adopting parent can claim the credit. The credit is also available if the couple jointly adopts a child that is not the child of either of them. Unfortunately, it is not available for adoptions connected to surrogacy arrangements, so a second-parent adoption by the partner of a man who is a biological father of a child born through surrogacy cannot claim the credit.

There is also no tax credit for obtaining a parentage order. In a jurisdiction that confers parentage on a nonbiological parent through a statute, without an adoption, (like our DC parentage statute), it makes more conceptual sense to obtain an order of parentage from the court; the nonbio mom is already a parent and so the court order confirms that and makes it subject to respect in other states as court judgment. As I say repeatedly, a mother should not have to adopt her own child! When considering your options, however, the fact that a second-parent adoption will be partly subsidized by the adoption tax credit may figure in your thinking, so be sure to discuss it with your lawyer.

Here is an article that explains the rule in great detail and in as close to plain English as you'll likely find in an article about tax law. Plus it's great to see our families explicitly included in the analysis in a very matter of fact way. Thanks to Florida attorney Elizabeth Schwartz for bringing this article to my attention.

Michigan court to weigh in on right of nonbio mom to see her children

It's still the same old story. This time in Michigan. Nonbio mom Renee Harmon has been prevented from seeing her 10-year-old daughter and 7-year-old twin sons by their bio mom Tammy Davis. Harmon and Davis were partners for 19 years until their split up in 2008. According to one news source, Harmon saw the children on a regular basis after the couple split up, but Davis then stopped the contact. Last September, when Harmon entered the home she had once shared with Davis and the children without Davis's permission, Davis got a restraining order against her. Harmon talks about her family in this news clip, complete with pictures of the happy couple and their children at various ages.

Harmon has filed a court action seeking joint custody of the children. There's no appellate court ruling on this issue in Michigan, but more than 20 years ago the court there recognized the doctrine of "equitable parenthood" to confirm the parentage of a husband who was not the biological father of the four-year-old child born to his wife. Unfortunately, the court later refused to extend that doctrine to a man who thought he was the father of two children born to his nonmarital female partner.

In 2008, the Michigan Supreme Court read the state's Defense of Marriage constitutional amendment very broadly as banning employee domestic partner benefits. (Here's my post about it.) And of course all the press coverage about the Harmon case notes that Michigan does not recognize same-sex marriage. But the courts need to separate marriage from legal parentage. A child's bond to a parent does not turn on whether that parent is married to the child's other parent.

In the 1970s and 80s, if custody rights for lesbian mothers defending against their former husbands had turned on whether the court was willing to validate the mother's new same-sex relationship, then many of those mothers would have lost custody of their children. They won when they could convince courts to rule on the child's best interests and not on the mother's lesbian relationship. Fast forward to the 21st century and we need courts to rule on the parent-child relationships created in a family, not on the perception that a ruling to preserve an existing parent-child relationship is a vote for same-sex marriage. Let's hope the Michigan courts can get it right.

Virginia appeals court agains sides with nonbio mom and against Liberty Counsel

At this point the Miller-Jenkins custody dispute is the most heavily publicized and longest running case over custody of a child born of donor insemination to a lesbian couple. I summarized much of the history in a previous post.

Last week the mainstream press covered the Vermont court's issuance of an arrest warrant for Lisa Miller, who has disappeared rather than adhere to any of the court orders granting Janet Jenkins first, visitation, and then, custody, of their daughter, Isabella. But there was another important ruling in the case last week, this time from the Virginia Court of Appeals. That court rebuffed Lisa's most recent attempt, orchestrated by her lawyers at the right-wing Liberty Counsel, to argue that Virginia should not enforce the orders of the Vermont court.

The legal principle in this latest appellate court ruling has nothing to do with lesbian mothers and everything to do with garden variety civil procedure doctrine. For obvious efficiency reasons, litigants are not able to re-raise issues they have previously litigated in the same case. It's called the "law of the case" doctrine.

In Miller's latest effort to thwart the court orders, she argued that even though the Virginia Supreme Court in 2008 ruled that Virginia must register the orders of the Vermont court, that did not mean that Virginia had to enforce those orders. Last week's ruling from the Virginia Court of Appeals affirmed a Virginia trial judge's ruling that the Vermont orders must be enforced.

The court noted that from the beginning of her litigation in Virginia, Lisa has asked that the Vermont orders in the case not be enforced. The Virginia Supreme Court has twice heard appeals in this case, and the rulings it has made govern any future litigation between the parties. In other words, there's nothing new to argue; the Virginia courts have heard it all. Lisa's attempt to parse registration and enforcement is not a new issue, but a re-hashing of the exact same issues she has been arguing for years. She has lost before and she has just lost again.

The most important question at the moment is where Lisa is hiding with Isabella. But I've got another question, triggered by some basic principles of civil litigation that I teach my first year law students. When will a Virginia court censure, and maybe even fine, Liberty Counsel for making frivilous legal arguments?

Catholic Charities chooses worst option for complying with DC law...and pretends it has no choice

The long wait is over. Catholic Charities of Washington, DC has settled upon its response to the District of Columbia's approval of marriage for same-sex couples. Effective tomorrow, its employees will no longer be able to add a spouse to employee health benefit coverage. Spouses who are currently covered will continue to be covered. Catholic Charities describes its response as "necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith."

So let's be clear. This response was not necessary. Catholic Charities had other options. As I noted previously, Catholic Charities could have taken advantage of a complex federal law that would have removed it from local anti-discrimination laws (that's what Catholic Charities of Portland, Maine did so that it would not have to comply with Portland's mandate to cover same-sex couples). Or it could have allowed employees to cover another adult in their household as Georgetown University has done. So the decision to disadvantage married heterosexuals was a choice. And it's a choice invidiously designed to breed resentment towards the agency's gay employees, perhaps disguising the real benefit to the agency -- lowering costs by providing fewer benefits to employees.

Seems to me it's time for a social service provider other than Catholic Charities to lure away the dedicated staff at that agency, apply for contracts with the city, and provide comprehensive health benefits to all staff. Any current employee planning to marry (or remarry) would have strong incentive to leave Catholic Charities, and anyone looking for a job as a new hire will prefer an employer who provides health benefits to spouses.

Meanwhile, I presume Catholic Charities still allows an employee to cover his or her children. Under DC law, a woman married to or in a domestic partnership with a woman who gives birth to a child is a parent of that child.

I predict we have not heard the last of this issue. Catholic Charities should be ashamed of itself. Apparently it is not. But no one should be dissuaded from pointing a finger at them and screaming "Shame!" by their bogus claim of necessity. It just isn't so.