Tuesday, March 4, 2014

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

Wednesday, February 26, 2014

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.

Tuesday, November 26, 2013

That was fast! Arkansas Supreme Court rules there is no mandatory ban in custody and visitation cases on the presence of a nonmarital partner

Seems like I just wrote about the case of Moix v. Moix.  Oh....I DID just write about it!  The Arkansas Supreme Court heard oral argument earlier this month, and two weeks later it ruled.  The trial judge was wrong, the court held, in finding that the state has a "blanket ban" on the presence of a romantic partner during visitation.  Instead, the primary consideration in every case is the best interests of the child.  Because it ruled for the father on this state family law ground, it declined to address the constitutional arguments made on the father's behalf.

The court did not provide much analysis other than the best interests test, but its reference to one particular case stands out.  In Taylor v. Taylor, the Arkansas Supreme Court reversed a trial judge who ruled against a mother who was living with a lesbian but was not in a romantic relationship with her.  The mother also testified that she was not herself a lesbian.  The trial judge feared that others would believe there was such a romantic relationship, but on appeal the court said that the outcome of the case could not turn on the false perceptions of others.  It would be easy to read the Taylor case as saying only that a mother can win as long as she isn't really a lesbian.  But the Moix opinion says more than that about Taylor.  It points out, accurately, the Taylor cited cases from other states for the proposition that "there must be concrete proof of likely harm to the children from the parent's living arrangement before a change in custody can be made...'Evidence-based factors must govern,' rather than stereotypical presumptions of future harm."  And those cases (although Moix does not explicitly say this) were cases in which the parent actually was gay or lesbian.  From this, I think it's fair to read Moix as requiring proof of harm before there can be a restriction on a parent's relationship with a same-sex partner.

Unfortunately for Mr. Moix and his son, the court remanded the case for further proceedings.  The trial judge made a factual finding that the partner posed no threat to the health, safety or welfare of the child and that there was nothing else that militated against the overnight visitation, but these findings weren't enough for the Supreme Court to simply remove the restriction.  Rather, the trial court is now to determine whether a restriction is in the child's best interests.  Let's hope the trial judge acts as quickly as the Supreme Court did.

Wednesday, November 13, 2013

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

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

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

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

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

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

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

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

Thursday, November 7, 2013

Indiana appeals court limits nonbio mom to visitation

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

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

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

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

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

Saturday, October 26, 2013

NY Times covers same-sex couples who don't want to marry

Sunday's New York Times article on same-sex couples who aren't marrying adds a dimension usually lost in all the news of marriage equality, especially because it includes -- indeed focuses on -- couples who really don't want to marry.  Especial hats off to historian John D'Emilio, who features in the article and who has been a long-time outspoken critic of marriage.  The theme that most dominates the article, however, is that these couples choose not to marry but are not unhappy that other same-sex couples have made a different choice.

The article really deemphasizes the legal consequences of the choice these couples are making and never asks whether those legal consequences are appropriate.  If two people own a home together, when the first one dies should the other have to pay taxes to retitle the home?  No.   It shouldn't matter if the two people are married.  What matters is that the survivor is remaining in her home and should get to do so without economic penalty.  In many places only a surviving spouse can do that.  The article does point out that some couples will pay higher income taxes if they marry.  And why should that be?  Many countries tax individual earners; it doesn't matter if they are married.  Not us.  We've got a tax scheme adopted to benefit single earner marriages, and we haven't changed it to deal more fairly with today's families.

I could go on.  I did in fact, in my book, Beyond (Straight and Gay) Marriage.  I agree that perhaps the biggest problem with the emphasis on same-sex marriage is that it invalidates the many other ways that people organize their lives to raise children and meet their needs for emotional support and economic security.  But the bright line the law makes between married couples and everyone else reinforces this point.

I also don't think the gay rights advocacy groups have sufficiently considered the needs of same-sex couples who don't marry, and there will be lots of them.  A Pew study from last spring showed that 30% of gay men and 33% of lesbians had not told their mother that they were gay; 47% of gay men and 55% of lesbians had not told their father.  About 1/5 of each group said they did not do so because the parent would not be accepting. So what does this mean for marriage?  Few people marry in secret, and it is the very public nature of the act of marrying that seems to matter so much to same-sex couples who want to marry.  My hypothesis is that people who are not out to the parents are going to be less likely to marry.  Also there is significant research about same-sex couples who live within their larger African-American communities.  Their lives are often an "open secret," not discussed with family members.  Marriage may well be too "in your face" for such couples.

Now no couple like those above is going to show up in a New York Times article about same-sex couples who don't marry.  By definition, they don't want to be public.  But they are at risk of falling off the agenda of the gay rights movement because the emphasis on marriage has turned the legal consequences of their relationships into problems that can -- and should -- be solved by marriage.

Wednesday, October 16, 2013

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.