Beyond (Straight and Gay) Marriage

California appeals court clarifies presumed parent status; it's about the parent-child relationship, not the relationship between the adults

2012-01-23T17:30:00.000-05:00

California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own. Last week came the latest addition to that body of law. California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other. In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.

This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P. J.V. was pregnant when she became good friends with E.C. E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V. J.V. and the child moved in with E.C. when the child was three months old. They began a sexual relationship after they were living together, something they did not tell their families until a year later. Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child. After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.

At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent. J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more. The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes. The court said that "[J.V.] never intended [E.C.] to be another parent. She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."

On appeal, the court held that the trial judge had applied the wrong legal standard to the facts. Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V. Whether the two women had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant. Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so. It's the conduct after conception and birth that matters, ruled the court. (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)

There was much evidence of E.C.'s parental relationship with the child. As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said: "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."

Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard. If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.

The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support. The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.

I'm struck by a number of things in this case. I can't give my complete support to a policy whose goal is find two parents for a child. To me, it comes from the same point of view that in other contexts vilifies single parents. It also suggests that two is some magic number, even when there are more than two. Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.

After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out. At that point it's understandable that J.V. regreted some of her decisions. But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism. J.V. shouldn't be allowed to rewrite her daughter's life.

Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California. It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents. I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.

Let's tell all children that their family structure is equal to all others

2012-01-18T01:24:00.000-05:00

The Tuesday New York Times article on pending same-sex marriage legislation in Washington state highlights the politicians, including Governor Christine Gregoire, who have switched their positions and now support the bill that would authorize same-sex marriage there. So far so good.

The problem lies in how the Governor explained her support. “Let’s tell the children of our same-sex couples," said the Governor in her State of the State address, "that their parents’ relationship is equal to all others in the state.” In a similar vein, State Senator Rosemary McAuliffe, a recent pro-same-sex marriage convert, said this: “I met the families, I met the children of those families, and I had the realization that it is our responsibility to protect all of our citizens against discrimination.”

Now I understand the argument that denying access to marriage to same-sex couples sends a message that our relationships are not as valuable as those of different-sex couples. And I certainly oppose discrimination. But that includes discrimination against the families of children whose parents don't marry -- gay or straight. I want the large percentage of children born to unmarried couples to feel that their family structure is equal to that of their classmates with married parents. And what about the children raised by grandparents or other relatives (including those raised by gay or lesbian grandparents or other relatives)? or by single adoptive parents (plenty of gay and lesbian folks doing that as well)?

If we're talking about validating and affirming the equal value of all families, let's really do that.

Iowa birth certificate case limited to children of unknown donor insemination

2012-01-12T13:19:00.000-05:00

Congratulations to Lambda Legal for its initial success in Gartner v. Newton, the case challenging Iowa's refusal to list Melissa Gartner, wife of Heather Martin Gartner, as a parent on the birth certificate for Mackenzie Gartner, who was born to Heather after she and Melissa married. The state can appeal the ruling if it chooses.

The state's position was that the statute requiring the listing of a husband as the father of a child born to his wife should continue to be read in a gender-specific manner. The state argued that at least 90% of the time this rule produces a birth certificate with the names of the child's two biological parents. Applying such a rule to a same-sex couple, the state argued, would produce a biologically accurate birth certificate 0% of the time.

The trial court ruled that the purpose of the birth certificate is not the creation of a biologically accurate record. I certainly agree with that. In fact, what I like best about this opinion is that it says the presumption that the spouse is the other parent of the child is based on protecting the "integrity of the family" regardless of biological connection.

But there are some troubling aspects to the ruling as well. The court notes that the Varnum opinion (establishing the right of same-sex couples to marry) cited one of the benefits of marriage as the legitimacy of children. Refusing to put Melissa's name on the birth certificate, the court said, frustrated recognition of the child's legitimacy. The court also relied on a 1945 Attorney General's opinion that a married woman's husband must be on the birth certificate even if he was away at war, the mother had an extra-marital affair, and she and the biological father wanted that man's name on the birth certificate. But the denomination of any children as "legitimate" inherently conveys that some children are "illegitimate," and that is unacceptable. Consider this language that the court cites from a 1933 case: "The presumption of paternity 'is founded on decency, morality, and public policy. The child is...safeguarded against future humiliation and shame..." This language makes me cringe; it recalls a time when a nonmarital birth carried life-long stigma for the mother and the child. There is nothing to be happy about when such thinking creeps into reasoning about our families.

And here is the kicker, something that news coverage of the case decision omitted. The ruling is limited to births where conception has occurred through anonymous donor insemination. The court says that explicitly. It won't help couples who conceive with a known donor or where conception occurs through sexual intercourse. Implicitly, the ruling credits Iowa's argument that the state's asserted interest in identifying the biological father could prevail in those forms of conception.

This highlights how little was really at stake in this case. A name on a birth certificate does not prove parentage. It is certainly evidence of parentage, and if no court dispute arises Melissa should be able to use the birth certificate with her name on it to show she is Mackenzie's mother. But this court was unwilling to give even a birth certificate to a lesbian spouse if there might be a man who could assert rights based on biology.

What Iowa needs is a parentage statute that would protect all lesbian couples, without regard to method of conception and without digging into the despicable ideology of "legitimacy" and "illegitimacy" that we are all well rid of.

Florida child of lesbian couple has two moms when one is the birth mother and conception occurred using the other's egg

2011-12-26T18:59:00.000-05:00

A Florida appeals court, in T.M.H. v. D.M.T., has ruled that a child's birth mother and genetic mother are both her legal parents when the couple planned for her together and raised her together for two years. The birth mother, DMT, argued that her partner had been merely an egg donor and that she therefore was not a legal parent. (This in spite of the fact that the child had a last name that was the hyphenated last names of the two women, they sent out an announcement of the birth of "our beautiful daughter," and they told the doctor who handled the assisted reproduction that they intended to raise the child as a couple.)

The trial court thought the law favored DMT and ruled in her favor while finding her actions "morally reprehensible." The appeals court reversed, conceding it was a unique case, and determined that there was no legally valid reason to deprive either woman of parental rights. Although a Florida statute says that a donor has no parental rights, the court ruled that THM was not a "donor" within the meaning of the statute because she always intended to be a mother of the child. There is a sperm donor case in Florida upholding a contractual arrangement between a lesbian mother and a known donor in which he agreed he would not be a parent of the resulting child. (He changed his mind and tried to get parental rights.) The TMH court distinguished that case because here the women actually agreed they would be equal parents and conducted themselves that way after the child was born. The court determined that TMH had a constitutionally protected right to be a parent of her child.

The birth mother argued that Florida's ban on adoption by lesbians and gay men meant that the state disapproves of the reproductive arrangement in this case. The court found no such legislative intent and also noted last year's ruling that the adoption ban violates the state's constitution.

The birth mother also argued that the standard egg donor form TMH signed relinquished any rights she might have to offspring born of her donation. But the appeals court said those provisions in the form clearly did not apply to her, a conclusion bolstered by an affidavit from the doctor at the reproductive center stating that those provisions did not apply to TMH and DMT, who always presented themselves as a couple with plans to raise any child together.

The court made clear that both women were parents and that, if the situations were reversed, TMH also would not be allowed to exclude the birth mother from contact with the child. The court also offered the following somewhat unusual commentary on considering the child's welfare in rulings of this sort:

Yes, I know, as did the able trial judge, that the bestinterests of the child is ordinarily not the test to be applied. Yet, I cannot help but thinkthat it should be. In my view it would be wrong to deprive the child of the benefits -emotional, monetary and supportive - of the relationship to which that childshould be entitled with both the appellant and the appellee. Both of the adult women inthis case are parents to K.T.-H. in the real sense of the term. I think that we need tofind a way to redirect our focus in cases of this kind so that best interests becomes part ofthe decisional matrix.

The same could easily be said of all cases in which a same-sex couple plans for and raises a child together, but the typical case does not give the court a hook to find both parents biologically related to the child.

I need to close by noting that this court, like many before it, stated that it is better for a child to have two parents rather than one. That's true, when a child has actually had two functional parents. I am always disturbed when I read such reasoning, however, about the possibility that it will inappropriately creep into a case where the child really has only one parent. Plenty of lesbians have children as single parents. Their family structure also needs to be protected.

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

2011-12-23T22:34:00.000-05:00

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

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

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

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

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

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

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

Wisconsin first grade teacher sets great example for dealing with gender variance among children

2011-12-21T23:15:00.000-05:00

Thanks to Shannon Minter for alerting me to this heartwarming account of a Jackson County, Wisconsin teacher's experience with a gender variant first grader. Melissa Bollow Tempel, in "It's Okay to be Neither," sets an amazing example of how to deal with gender issues in the classroom, including a girl, Allie, who was often taken as a boy. Equally heartworming, the girl's parents were accepting of their child. When the teacher called home to ask if she should correct children who said Allie was a boy, Allie's mom asked her what she wanted. (She wanted the teacher to tell them she's a girl).

There's a growing number of custody disputes between divorced parents who disagree about how to deal with a gender variant child, including children who meet the diagnostic criteria for GIDC (gender identity disorder - children). Judges are inclined toward the parent who wants to discourage gender variance. I'd like this Wisconsin teacher's approach to gain ground among teachers and all who deal with children, in the hope that judges will catch on.

New Jersey judge awards full custody of twins born through surrogacy to gay father

2011-12-16T17:06:00.000-05:00

The New Jersey case of A.G.R. v. D.R.H. & S.H. is a story of much that can go wrong. At the center of the case are two twin girls, born in October 2006. There has been litigation about their parentage and care since they were five months old. The girls were born to AGR, who was a gestational surrogate for her brother, DRH, and his partner, SH, who is the children's biological father. AGR filed for custody of the children, and two years ago the trial judge ruled that the documents AGR signed agreeing to be a gestational surrogate were unenforceable in New Jersey and that she is the children's legal mother. Twenty years ago, in the famous Baby M. case, the New Jersey Supreme Court voided a traditional surrogacy contract as against public policy. Since then, no one seeking an enforceable surrogacy arrangement would make such arrangements in New Jersey, but that is what these three people did. The men argued that their situation was distinguishable because it was gestational surrogacy, but the judge didn't buy it. For the past two years, the children have gone back and forth between the two homes.

Well this week the same judge awarded full legal and physical custody of the children to SH. He ruled that joint custody was inappropriate because the parents could not agree, communicate, or cooperate. AGR received generous and fairly typical visitation rights -- every other weekend, three hours on a weekday evening, four weeks in the summer.

One of the things I find most interesting about this case is the plan the men always had that the gestational carrier AGR, aka DRH's sister, would play a large role in the children's lives. It reminded me of the scenario that is more typically of lesbian couples who use a known donor to conceive; sometimes they expect him to be involved with the child but not to be a parent with legal rights to challenge their decisions. This is less common among gay male couples using a surrogate, although Judith Stacey's research on gay men in southern California (reported in her most recent book, Unhitched), did uncovered one such family, where the children had relationships with both the gestational surrogate and the egg donor. SH testified that AGR was expected to be a "special aunt."

Some facts emerged in this opinion that were not in the earling ruling. I learned in the third paragraph of this 15 page single spaced opinion that AGR was a lesbian. When she first explored being a surrogate for her brother and his partner in 2004 she was in a four year relationship with a woman that broke up about a year later, shortly before she began the fertility treatments in preparation for the surrogacy. In 2008, however, she returned to her earlier Baptist faith, renounced her lesbianism, and began espousing negative views of both surrogacy and homosexuality. (AGR is represented by the same lawyer who represented the birth mother in Baby M., who is also well known for his litigation and legislative work against abortion; I don't see evidence of Liberty Counsel or Alliance Defense Fund's involvement in this case, but the claims of ex-gay parents are a staple in their dockets.)

The judge was deeply concerned that AGR's negative views would have an adverse impact on the children. AGR was living with her mother (who is of course also SRH's mother), and she, too, had very negative, biblically-based views of homosexuality. AGR said that if she got custody she would enroll the chldren in a Catholic school and take them to a Baptist church. At one point the judge referred to the twins as "special needs" children because of their unusual method of conception and family structure. The judge held that SH always looked at things from the perspective of the children's best interests. On the other hand, he found that it was "inevitable" that the strong views of SH and her mother, including that SRH would burn in hell, would have a damaging effect on the children and would make them feel ashamed of themselves.

The plaintiff and defendants each called an expert witness and there was also a court appointed expert, who supported sole custody for the father and his partner (and said it should happen as quickly as possible). Dr. David Brodzinsky, a well-known expert on adoption who strongly supports LGBT parents, testified for the fathers. I was very disturbed by one thing he said. The judge wrote that he testified that "being genetically related give SH an advantage over plaintiff because children relate better to genetic parents." What?? I'd like to know what he based this on. I've never heard this view espoused in all the cases between bio and nonbio moms, nor has any court relied on it, so it was pretty shocking to read it here...and from an expert well known for his work on adoption.

As for the expert for AGR, the judge did not agree with many of his conclusions, but even he said that AGR should not say homosexuality was a sin in front of the children and that taking them to an anti-gay church would be bad for them. The court appointed expert was deeply disturbed by the impact of AGR's negative views of homosexuality, but he also said something that bothers me -- that SH's two-parent household was better because AGR works during the day (SH was a stay-at-home dad). This reasoning has been improperly used against divorced moms, gay and straight, when their ex-husbands remarry, and I don't want it in custody decisions about our children.

The judge's findings are so detailed that there is no chance they would be reversed on appeal. I do not know if the fathers are planning to appeal the finding that AGR is their mother, or if they even can at this point. When the child at the heart of Baby M. turned 18, she consented to her adoption by her "stepmother" so that her legal parentage could match the family she really had. Perhaps these children will do the same...

California appeals court upholds parentage determination for Colonel in US Air Force Reserves

2011-12-12T18:06:00.000-05:00

On Friday, in S.Y. v. S.B., the California Third Appellate District upheld a trial court order that found S.Y. to be a parent of two children adopted by her partner, S.B. This case is signifcant because S.B. argued that her partner had not "received the children into her home" as required by statute because she maintained a separate residence for almost the entire 13+ years of their relationship. But the reason S.Y. maintained a separate home was because of the potential threat of Don't Ask Don't Tell to her 30 year career in the Air Force. I wrote about this case, and the impact of the end of DADT on same-sex couples with children, in September. The children were 10 and 5 when S.Y. filed a parentage action. It was two months after she and S.B. split up and a month after S.B. denied her access to the children.

S.Y. had a stellar legal team: Eileen Gillis in Sacramento, who won at trial by building a detailed picture of the ways in which S.Y. was the children's mother and did live with them in their family home which was S.B.'s home, and the incomparable Deb Wald who preserved the win on appeal.

Since the victory in the California Supreme Court in 2005 in the Elisa B. case, a mother's partner who receives a child into her home and holds the child out as her own is presumptively a parent of that child. Deb Wald pointed out to me with pleasure that it was the Third Appellate District that got Elisa B. wrong, leading to the appeal that created the current law. Therefore, it's great to see that court in particular look so carefully into the life of this family and completely understand what was going on there.

As often happens, the appeals court had a case involving heterosexuals to build upon in this case. A court in 2003 had found that a man met the "received" test even though the child never lived with him, because the child visited his home regularly and he provided for her financially. In S.Y.'s case, she stayed overnight at S.B.'s home (which the court called the family home) three to four nights a week and stopped by on the other nights. The court described in detail all the parental tasks that S.Y. did and all the financial support she provided. The opinion quotes the trial court's finding that this was not a situation of a person dating the mother who incidentally cared for the mother's children because of that. Rather, the relationship between the women lasted longer than it would have because of S.Y.'s commitment to the children.

The moms split up when the first child was about 3 1/2. The split up last 2 1/2 years, but S.Y. continued parenting all that time (except when S.B. would not allow it), going to S.B.'s home most evenings and every weekend and going on vacations and other family outings together. They were still split up when S.B. decided to adopt another child, and S.Y. did not participate in that decision. But during the adoption process, S.B. asked her to come to Minnesota, where the second child was born, to help take care of the first child while the adoption proceedings there dragged on. And when everyone returned to California, S.Y. continued to go to the home most evenings and every weekend to be with the children, and she did act as a parent to the second child as well. The couple reconciled in November 2005, about a year after the second child's birth, and they split up for the final time in July 2009.

Given this non-standard factual scenario, the court might have ruled against S.Y. because there was no joint decision to adopt the second child. But the court looked at the joint parenting instead. Similarly, and to me this is the most important part of the ruling, the appeals court said as follows: "While S.B. may not have intended for S.Y. to obtain any legal rights to the children, the record is replete with evidence that she not only allowed, but encouraged, S.Y. to co-parent both children from the beginning." This is followed by a long paragraph summarizing all the actions taken by S.B. to make S.Y. a parent.

We talk often of "intended" parents in a way that seems to make intent the touchstone of determining who is a parent. Certainly our cases and scholarship (including mine) are full of references to the importance of intent. I remember Jenni Millbank, Australia's leading scholar of LGBT family law, arguing vehemently that intent can be too subjective and that it is actions that should count. When a woman consents to her partner's insemination, Jenni would say, the consent is the action that makes her a parent. Jenni did not agree that the law should require proof on top of the consent that the partner intended to be a parent.

Well I thought of Jenni when I read this part of the opinion. I have no idea what S.B. intended, but the evidence shows what she did. And what she did made S.Y. a parent of the children she adopted, complete with Mother's Day cards, incorporation into S.Y.'s extended family, and joint care and financial support of the children. That is what the children experienced. The children could not know what was in S.B.'s mind, and it would not have mattered to them if they did. Children learn that actions speak louder than words. And actions certainly speak louder than unsaid words, like whatever was in S.B.'s mind. In the end, this case is important for its ability to see a family home even when one adult had a separate residence; to see consistent parenting in the midst of some instability in the adult couple relationship; and to find facts based on behavior, not thoughts.

Wisconsin courts foil bio mom's attempt to overturn her partner's adoption of the children

2011-12-09T16:02:00.001-05:00

Here is another "lesbian bio mom behaving badly" case, and another court --this time the Wisconsin Court of Appeals -- that does not let her get away with it. (This case was decided in July, but I'm behind on some of my posts and I haven't seen it written about elsewhere).

The case name is Shelly J. v. Leslie W. Lesbian couple, Shelley and Leslie, began their relationship in 1996 and decided to have children together. Shelly gave birth to one child in 2000 and another in 2002, using anonymous donor insemination. The couple raised the children together. Now comes the tricky part. Many years ago, the Wisconsin Supreme Court ruled that Wisconsin adoption statutes did not permit a biological mother to retain her parental rights once the child was adopted by her partner. In other words, it ruled that second-parent adoption was not authorized under Wisconsin law. That case, In re Angel Lace M., did not decide whether two people of the same sex could jointly adoptly a child together.

So...Leslie and Shelly solidified their family as follows: Shelly voluntarily terminated her parental rights, and Shelly and Leslie petitioned to jointly adopt their two children. The court granted the adoptions in 2004. Seven years later, Shelly petitioned to set aside her voluntary termination of parental rights and the joint adoption, so she could go back to being the children's only legal parent. She did this by arguing that the adoptions were not allowed under Wisconsin law. She even argued that the two attorneys and the judge were working to "subvert the existing law to further a political agenda."

Well, the appeals court did not rule on whether this type of joint adoption is permissible in Wisconsin; there is still no appellate court decision on that question. The appeals court told Shelly it was too late to make any such claim. In applying the legal standard for undoing the previous judgments, the court specifically ruled that reopening the proceedings would not be in the children's best interests. The two women had raised the children since birth, and the trial judge had emphasized that custody and visitation rights of both parents should be preserved. Shelly made various arguments about whether the court that granted the adoptions had the power to do so, but the appeals court made clear that circuit courts in the state have subject matter jurisdiction to hear actions of any nature. This of course is in stark contrast to the North Carolina Supreme Court ruling last year that no court in that state ever had subject matter jurisdiction to grant second-parent adoptions. As a result of that ruling every second-parent adoption ever granted in North Carolina became invalid.

I'll note that this is the second time this year that a Wisconsin appeals court has said a bio mom was too late to challenge a proceeding in which she had participated. In the earlier case, which I wrote about here, the court left standing a non-bio mom's parentage order. But that court also ruled that such parentage orders were not permissible under Wisconsin law, cutting off such an avenue for solidifying parent-child relationships when a same-sex couple has a child together. By not ruling one way or the other on the joint adoption proceeding used by Shelly and Leslie, lawyers, judges, and parents in Wisconsin are left in a state of uncertainty. This is unfortunate. The trial judge had upheld the theory that two unmarried individuals can petition to adopt a child when that child's parental rights have been terminated. Courts in other states with similarly-worded statutes have also allowed such joint adoptions. It's a good legal theory that allows for a good result, and I hope trial judges in Wisconsin keep relying on it.

European Court of Human Rights (ECHR) hears another second-parent adoption case

2011-12-06T16:13:00.001-05:00

Last week the European Court of Human Rights (ECHR) heard the case of X. & Others v. Austria, its second case on the availability of second-parent adoption. A webcast of the oral argument in the case -- translated into English -- is available on the ECHR website here. I wrote about the hearing in Gas & Dubois v. France last April; that case has yet to be decided. In Gas & Dubois, the child was conceived through donor insemination and France denied the mother's partner the ability to become a second parent through adoption. In X. & Others, the child was born in the context of a prior heterosexual relationship.

According to Rob Wintemute, leading European expert on LGBT family law, unmarried different-sex couples may adopt each other's children in Austria. If the child's birth mother had been living with a new unmarried male partner, instead of a female partner, the new male partner could apply to adopt the child. The genetic father would have to consent, or the court would have to be persuaded to override his refusal to consent because the step-parent adoption would be in the best interests of the child. Because a step-parent adoption or second parent adoption is legally impossible for a same-sex couple in Austria, the trial court did not reach the question of the genetic father's consent.

The lawyer arguing for Austria pointed out to the ECHR that most European countries do not allow a child to have two mothers or two fathers. She argued that this is relevant to the leeway given to each country (called the "margin of appreciation") in implementing the European Convention on Human Rights provisions on respect for family life.

The petitioners are represented by Helmut Graupner, leading Austrian gay rights attorney. He noted that the Youth Welfare Office found that it would be in the child's best interest for the mother's partner to have legal custody of the child but that this was not permitted under the law. Graupner quoted to the court the opinions of numerous experts on the well-being of children raised by same-sex couples.

Although Europe was way ahead of the US in recognizing same-sex couple relationships, beginning with registered partnership in Denmark in 1989 and same-sex marriage in the Netherlands in 2001, European countries have actually lagged behind the US in recognition of parentage for same-sex couples. It is a relatively recent development that some countries do allow second-parent adoption or parentage for the same-sex partner of a woman who bears a child through donor insemination. Austria not allows same-sex couples to enter registered partnerships, but the law explicitly bans second-parent adoption for registered partners.

Book by psychology professor Abbie Goldberg is most comprehensive yet on children of LGBT parents

2011-11-29T15:58:00.001-05:00

If you want to read one book about the research on children of LGBT parents, the best choice is Lesbian and Gay Parents and Their Children, by Clark University psychology professor Abbie Goldberg. Dr. Goldberg is also a researcher in her own right. She presented her current research on adopted children at a session sponsored by the Williams Institute earlier this month in Washington, DC. There are legends in the field of research on children of LGBT parents -- Charlotte Patterson at the University of Virginia and Susan Golombok at the University of Cambridge in Great Britain, for example. (Both these women also spoke on the Williams Institute panel.) They have been doing this work for decades. Dr. Goldberg joins their ranks as a young researcher and scholar; her Ph.D. dates only to 2005. Yet her publications number in the dozens, and her commitment to researching LGBT parents and their children suggests we have dozens more to look forward to over the course of her career.

As immersed as I am in the legal literature on LGBT parents and their children, I still had managed to miss the quantity and quality of work coming out of the social sciences. The legal lens tends to focus on how the children turn out, with the purpose in mind of convincing law makers and judges that we should not be restricted in our right to raise children. In the all-too-common litigation between a bio and a nonbio parent over custody and visitation, we have not drawn enough on the increasing body of research on such families in making our legal arguments. The half dozen or so studies of what last names lesbian couples choose for their children, discussed in two pages in Goldberg's book, could, for example, help explain to a court what such decisions mean. Ditto for research on how lesbian couples with children divide child care, housework, and paid work.

There continue to be custody and visitation disputes when one parent comes out after the end of a heterosexual marriage. Goldberg's analysis of the research on children's reactions in such situations, and on the harm that secrecy can cause children, could provide a road map for arguing on behalf of the gay or lesbian parent. With courts increasingly saying that it's not the parent's sexual orientation, but the child's reaction to it, that justifies a custody or visitation restriction, the studies Goldberg describes should form a prominent part of a legal strategy. While children understandably show surprise, worry, and concerns about privacy when a parent comes out, the research does not support the notion that lesbian and gay parents place an unfair burden on their children when they comes out or that the children will experience ongoing stress.

Goldberg always keeps in mind the "T" in LGBT. There isn't much research on trans parents, and when there is none Goldberg says so. But when there is any, it's here. Since so much more is needed, and Dr. Goldberg is early in her career, I expect she herself will fill some of this void in the years to come.

Single woman may sue Michigan fertility clinic for denial of IVF services

2011-11-15T18:09:00.001-05:00

The Michigan Court of Appeals has released for publication its September opinion in Moon v. Michigan Reproductive and IVF Center. In that case, Allison Moon sued a fertility clinic because it would not provide services to her as a single woman. Reversing the trial court, the Court of Appeals ruled that the clinic was subject to the state's anti-discrimination law and could not avoid litigation on the basis of a doctor's alleged right to choose his patients.

Under Michigan law,

the opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.

A place of public accommodation includes a "health facility" whose services are "available to the public." Such a facility cannot discriminate on the basis of marital status.

The defendant did not dispute that it was a public accommodation, but it did argue that the law requires a doctor-patient relationship to be consensual and that therefore the doctor could decline to treat anyone. The court ruled that the doctor can decline to treat a patient, but not on one of the grounds identified in the anti-discrimination statute. "A contrary interpretation," the court held, "would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian."

The case is extraordinary for a series of emails between Moon and the doctor at the clinic in which he explained his reason for refusing to treat her. His claim was that he would not treat her because he feared that he could be held liable for child support for the resulting child. Although he claimed that a doctor in Massachusetts had been held liable for child support in such a circumstance, no one I know has ever heard of such a case. This is not a case like the Benitez case in California a few years ago, in which the doctor claimed a religious freedom right to discriminate on the basis of marital status.

When lesbian mothers split up -- latest results from the National Longitudinal Lesbian Family Study

2011-11-03T14:41:00.000-04:00

The December 2011 peer-reviewed journal Family Relations reports the latest findings from the National Longitudinal Lesbian Family Study (NLLFS) on the well-being of children whose mothers split up before they were 17. The NLLFS has been following 85 children of lesbians born through donor insemination beginnning in the 1980's. Information about the study and its earlier published research is all located on the NLLFS website.

Of the 73 two-mother families in the study, 40 couples had split up by the time their child was 17 (over 90% of these occurred before the child was 13). This is a higher rate of separation than the divorce rate for married heterosexuals. 71% of separated couples reported shared custody of the children, a number considerably higher than the rate of shared custody among divorced heterosexuals. 59% of the couples had completed second-parent adoptions, and parents in that group were more likely to share custody. The children whose mothers had completed second parent adoptions were much more likely to report feeling close to both mothers. In 10 families, the birth mother was primary custodial parent. The study reports no families in which there was one primary custodial parent and that parent was the nonbiological mother.

The study's key finding: there was no difference in psychological health or problem behavior between those children whose mothers had completed second parent adoptions and those who had not, or between those whose mothers shared custody and those who did not. The authors note that this lack of association could reflect the small size of each subgroup. (Previous research from the NLLFS, published in Pediatrics, reported no difference in the well-being of children whose moms split up and those whose moms were still together.)

The study includes the information that 80% of the separations occurred before same-sex couples could enter civil unions in Vermont (July 2000), the first status available to same-sex couples that conferred the state-level legal consequences of marriage. Almost all occured before the couple could have entered marriage or its legal equivalent in the state where they lived. The study repeats this fact several times. In a footnote, the authors do note that marriage (or its legal equivalent) is neither necessary nor sufficient to confer legal parentage. Perhaps repetition of the fact of the unavailability of relationship recognition is designed to suggest that there could be variable outcomes for children whose parents marry and those who do not. While that is, of course, possible, if the data reported in this study holds it suggests otherwise. It takes a lot more time, effort, and money to complete a second parent adoption than to marry. A second parent adoption is also a strong statement of commitment to the child, as opposed to marriage which concerns the relationship of the women to each other. So if the children of second parent adoptions are no healthier or better adjusted than the children whose moms did not complete second parent adoptions, my hypothesis would be that the couple's marriage would produce no difference either.

One thing for sure -- there will be lots to research over the coming years, and the data from the NLLFS study will be the point of comparison for all that work.

South Carolina appeals court reverses custody award to father that was based in part on mother's abortion

2011-11-02T19:12:00.000-04:00

Since the mid 1970's, gay rights advocates, and advocates for children, have argued that a judge's view of the morality of a gay or lesbian parent should not influence the judge's decision on custody or visitation. Gay and lesbian parents do continue to lose custody or face vistitation restrictions in some counties and states, but rulings explicitly based on morality are rare. Of course some parents avoid the risk of losing custody altogether by agreeing to keep their partner away from the children, and that tells me that such risk still exists.

A case decided by the South Carolina Court of Appeals last week raises a different issue about morality. In Purser v. Owens, a trial court removed an eight-year-old autistic child from the only home he had ever known, with his mother, and transfered custody to the child's father, who lived in North Carolina, had never lived with him, and had little contact with him for the first six years of his life. The parents were never married. Among the reasons: when she was 35, the mother had a brief affair with a 19-year-old; when she became pregnant, she had an abortion. The trial judge said this:

Other things I'm concerned about is the pregnancy with a 19 year old and abortion. That was an irresponsible decision; two irresponsible decisions. First being involved with a 19 year old when you are 36 or 35. That's irresponsible. And then having an abortion. That's irresponsible. I am concerned about the environment.

Three years later (there is no accounting of how it took three years for this appeal to be resolved), the appeals court reversed the custody decision and sent it back for a decision without considering the mother's abortion, because the abortion had no direct or indirect effect on the child and was therefore not relevant.

Most of the opinion is devoted to whether the father should have had to prove there was a "change of circumstances" to get custody of the child. The majority ruled that since it was the first legal determination of the child's custody, the father did not have that burden. A vigorous dissent disagreed, reasoning that the father approved the custody arrangement with the mother by never trying to change it and should have to meet a higher burden to change custody after such a long time.

I'm afraid that this ruling, as good as it is for the principle that a mother should not be penalized because she had an abortion, will be of little help to Angela Owens, the mom in this case. There's nothing about the trial judge's ruling being stayed pending appeal, so it is likely that the child has been living with his father for three years. If that placement is going well enough, a judge may be reluctant to disturb it.

Two other notable things about this case. The father was married. The trial court might well have preferred a married couple home over the mom's single parent family. And the mother alleged that the father filed for custody after she went after him for child support. If that's true, it's not the first time, and such a sequence of events should suggest some real bad faith on the father's part.

Finally, given the discretion accorded judges in deciding custody, this ruling might have been affirmed if the judge had not mentioned the abortion. Certainly there are recent court decisions involving gay fathers and lesbian mothers where the judge says that sexual orientation is playing no role in the decision. An appeals court will usually take a judge at his or her word in that regard. This judge could have said he was not considering the abortion, or he could have not mentioned it. But he did, and at least the case stands for the proposition that he should not have.

IRS nods towards surprising interpretation of civil union/domestic partnership...you may be "married" for tax law purposes

2011-10-28T12:33:00.002-04:00

Pat Cain, tax law expert extraordinaire, shared an astonishing piece of news on her blog yesterday. The IRS Office of Chief Counsel has written a letter indicating that a different-sex couple in an Illinois civil union is considered married for purposes of filing a tax return at the federal level. The letter says nothing about same-sex couples, presumably because DOMA blocks treating a same-sex couple as married under federal law. (I've wondered sometimes if the federal government could recognize a civil union or domestic partnership because it isn't a marriage, which is what DOMA addresses. But I'll leave that aside for now...)

Here is what's astonishing about this. One of the reasons different-sex couples enter such a status instead of getting married is to avoid the federal consequences of marriage. For example, a divorced woman collecting social security retirement benefits on the basis of her former marriage loses those benefits if she remarries. Presumably this is the reason that some of the states that allow different sex couples into DPs limit it to couples where one person is at least 62 (the minimum age for a nondisabled person to collect social security retirement benefits). But some states (Illinois, Hawaii, Nevada) as well as DC allow all different sex couples into the status. And DC allows two people who live together "in a committed, familial relationship" to register as DPs.

As Pat Cain notes, this one letter is not "the law." And it only applies to filing status. If it does become the policy of the IRS it is hard to see how it could apply to filing status and not to other tax code provisions, and then it is hard to see how the IRS could consider a couple married without the Social Security Administration doing the same, which is where retirement and death benefits come in.

If this does become "the law" it has a special significance for me. I'm in a DC registered domestic partnership and, as anyone who reads this blog or hears me speak knows, I do not want to get married. But I would benefit from filing my federal tax return as "married." So...if DOMA is repealed, a ruling consistent with this recent IRS letter would mean I could stay in my DP and still file my federal taxes as married. Cool! It would also allow others to choose "civil union" or "domestic partnership" as an alternative to marriage without federal penalty. That might make it too good to be true...So I'm not holding my breath!

Application for social security card recognizes possibility of same-sex parents, but...

2011-10-27T11:29:00.000-04:00

A same-sex couple will no longer have to puzzle over filling out an application for a child's social security card. Where it used to call for "mother" and "father," it now asks about "mother/parent" and "father/parent." But there is a catch. The "mother/parent" space asks for name AT BIRTH, while the "father/parent" space does not. Would it be so hard to ask for the name at birth of both parents? Husbands do sometimes change their names when they marry. A student of mine last year wrote a paper on this issue as a result of difficulty he had effectuating a name change when he took his wife's name at marriage. (If you are curious why he did this, well, her name had great meaning to her within her culture, and he was fine changing his name to hers and giving that name to their children.) And since women do not always change their names, those who have not changed their names will not feel singled out for a reminder that most women do. And...with 40% of births to unmarried women, a lot of mothers apply for a social security card for a child without a second parent. The "name at birth" instruction to women only surely reminds them that they were supposed to be married (and change their name) before the child was born. And, finally, same-sex couples as well as straight couples, sometimes take a new name for themselves and their child. Then each had a different name at birth.

I want all these parental possibilities to appear equally appropriate on our government forms. Too much to ask?

New report on LBGT families with children a must-read

2011-10-25T10:00:00.001-04:00

Today the Movement Advancement Project, Center for American Progress, and Family Equality Council released the report, “All Children Matter: How Legal and Social Inequalities Hurt LGBT Families.” This is not just one more report on children of LGBT parents. It is, instead, the gold standard against which every other assessment of the needs of children of LGBT parents will be measured for well into the future. The report identifies three goals, each one of which receives lengthy treatment in a separate section: Goal 1: Securing stable, loving homes for children; Goal 2: Ensuring economic security for children; Goal 3: Ensuring health and well-being for children. The conclusion presents detailed recommendations designed to achieve these goals.

I have often complained in my blog posts about all the reports, press releases, speeches, testimony, etc that attribute the problems facing LGBT families, including the children in those families, to the unavailability of marriage to same-sex couples. This report does not make this mistake.

Beginning with the introduction, the report situates LGBT families within the context of other disfavored families. Noting that only 22% of households are married heterosexual couples raising their biological children and that only 59% of children live with their two married biological parents, the introduction notes that “unequal laws and social stigma harm not just the two million American children with LGBT parents, but also children in other family configurations, such as those with unmarried heterosexual parents.” It also criticizes government safety net programs that fail to support and protect children not living with a married mother and father. So from the beginning of the report, it is clear that the authors do not identify lack of access to marriage as either the primary problem or the primary solution.

In addition, after describing the number of same-sex couples raising children who are disadvantaged by their race, economic disadvantage, and bi-national status, the report makes clear that the needs of those families cannot be met only by looking at the LGBT angle of their lives. For example, in addition to LGBT-related immigration reforms, the report recommends a pathway to permanent residency and citizens for all undocumented immigrants living in the US.

Another strength of the report is its level of detail. I would almost call it mind-numbing detail, to the extent that it is difficult to absorb the volume of factual information and accompanying analysis in the report’s 115+ pages. (The authors prepared an abridged version, but it’s worth slogging through the full report). But anyone truly trying to understand the large number of public programs affecting “parents, “children,” and “families” – terms defined in maddeningly different ways – the report gathers everything in one place, from the school lunch program to public housing to various tax credits.

The section of the report on securing stable, loving homes for children does not address parenting in general terms, but separates five distinct pathways to parenthood – traditional conception, adoption and fostering, blended and stepfamilies, assisted reproduction, and surrogacy. For each, it discusses laws and policies that either block or facilitate establishing and maintaining parent-child relationships. This is the area of law I know the most about, and I did find a few technical errors or misleading statements, but a report of this magnitude that tries to present nuances rather than generalizations is bound to have small mistakes. For the most part, I was enormously grateful for the nuances; a decision from a state’s intermediate appellate court, for example, is not the last word on the state’s law, even if for the moment all trial courts are following it. It’s very hard to convey that when drawing a color-coded map.

Something I love and deeply appreciate about the report is its emphasis on defining family in functional ways. It makes numerous recommendations for basing economic policies, from eligibility for programs to ability to sue for wrongful death, on the functional parent-child relationship. Other strengths include acknowledging the significance of racial disparities and identifying what should be done to overcome them and naming the distinctive circumstances facing transgender individuals who are or want to be parents.

No single post can do this report justice. So consider this the first in a series.

Evan Donaldson Adoption Institute report identifies best practices in adoption...but supports same-sex marriage for the wrong reason

2011-10-23T01:48:00.002-04:00

The Evan B. Donaldson Adoption Institute issued a new report this week on Research-Based Best Practices in Adoption by Gays and Lesbians. It includes the results of a survey of 158 adoptive parents. What the researchers learned from those parents, combined with information from other sources about LGBT adoption, produced a series of recommendations. These includes creating an atmosphere welcoming and respectful of LGBT prospective adoptive parents; promoting sensitivity and competence among agency staff; providing pre- and post-adoption support to LGBT families; providing pre-adoption support and education for birth families and older children; and supporting research on adoption and parenting. After three previous reports on LGBT adoption: on the number of agencies working with LGBT clients; on the research finding no child-centered reason to oppose LGBT adoption; and on eliminating barriers to LGBT adoption of children from foster care; it's terrific to read a report focused not on whether LGBT individuals and couples should be able to adopt but on how to make those adoptions work better for everyone.

But I do have a quarrel with one recommendation: advocate for the passage of gay marriage laws. If the researchers had stopped with saying that denial of access to marriage stigmatizes same-sex relationships and that's not good for the children they raise or for creating a climate in which more gay people want to adopt, well, I'd be fine with that. But this is what they said:

Marriage promotes relationship stability for heterosexual adults compared to cohabitation, and consequently leads to healthier long-term psychological adjustment for children.

On this point, they should know better. The causal link between marriage and better child outcomes is highly contested. Those who make this claim generally oppose policies that respect and promote family diversity. I think the reference to "relationship stability" refers to the length of time the relationship lasts. Yet the one longitudinal study (peer-reviewed, published in the prestigious journal, Pediatrics) of children of lesbian couples that has studied the children when they were 17 years old found no difference in the well-being of those children whose mothers had split up and those who were still together.

But it get worse. The next sentence reads:

If the well-being of children is to be paramount, then there is reason to expect that the marriage of their parents -- including when they are gay or lesbian -- will further the same objective.

Now this is the same organization that, along with every other highly regarded national child welfare organization, asserts that a substantial body of research demonstrates that children of LGBT parents suffer no psychological detriment when compared to children raised by heterosexuals. And those were unmarried LGBT parents. In other words, children have done fine living with LGBT parents who could not marry each other, so what is this assertion that marriage of those parents will produce healthier children?

I appreciate that the researchers support marriage equality. But they should know better than to do so in the name of producing better-adjusted children. It gives too much credit to arguments that are used inappropriately when discussing heterosexuals, and it disregards the well-being of the children LGBT parents have been raising for decades.

Gay rights lawyer Beth Robinson appointed to Vermont Supreme Court -- becomes 4th lesbian high court judge in the last 12 months

2011-10-19T18:09:00.004-04:00

Yesterday, Vermont governor Peter Shumlin appointed gay rights lawyer and marriage equality advocate Beth Robinson to the Vermont Supreme Court. That brings to four the number of open lesbians appointed to state supreme courts in the last twelve months. The other three are, in chronological order, Monica Marquez, appointed December 2010 to the Colorado Supreme Court; Sabrina McKenna, appointed February 20011 to the Hawaii Supreme Court; and Barbara Lenk, appointed May 2011 to the Massachusetts Supreme Judicial Court. Before December 2010, there was only one openly lesbian state supreme court judge, Virginia Linder, appointed in 2007 to the Oregon Supreme Court.

State courts are hugely influential in determining family law disputes, including those that involve same-sex couples and LGBT parents. Four of these five judges are serving in states that have marriage (Vermont and Massachusetts) or comprehensive recognition (Oregon-domestic partnership and Hawaii-civil union) for same-sex couples. Issues will arise in those states not only for same-sex couples who marry but for those who don't.

Beth Robinson, who has been deeply involved in marriage equality efforts for most of the last two decades, knows my critique of making marriage the dividing line between relationships that count under the law and those that don't. She has been focused on the equality aspect of access to marriage. I hope in her new position, having achieved the equality she fought hard to obtain, she will focus on doing justice for all LGBT parents and their children in Vermont, whether the couples marry or don't.

But that's all in the future. For today, a big congratulations to Beth! And props to the governor who selected her.

Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple

2011-10-12T19:44:00.007-04:00

On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")

The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).

Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.

That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.

Supreme Court denies cert in Adar v. Smith, leaves child without accurate birth certificate

2011-10-11T10:06:00.003-04:00

This morning the US Supreme Court declined to review Adar v. Smith, the ruling from the Fifth Circuit Court of Appeals (en banc) that Louisiana need not issue an amended birth certificate naming as the child's parents an unmarried couple who adopted the child in another state. A gay male couple had adopted the child in New York.

I have written about the case extensively here, including the massive effort by Lambda Legal to gain Supreme Court review.

A denial of certiorari is not a seal of approval for a lower court's ruling, so it does not make the law worse than it already is. (As opposed to a loss in the Supreme Court, which has nationwide ramifications). That said, the ruling that stands is very bad. It is the crack in the door that other states, and their courts, may walk through to deny recognition to same-sex couples raising children in a variety of contexts. Its differential treatment of children with married parents and those with unmarried parents is also deeply disturbing.

Paula Ettelbrick dies after a life of service to LGBT rights; NY Times obit emphasizes her skepticism about marriage

2011-10-07T11:51:00.008-04:00

After battling cancer for over a year, Paula Ettelbrick died this morning in New York. She was 56.

I met Paula when she joined Lambda Legal in the 1980's. In the group of gay rights lawyers from around the country that met regularly at the time, we both opposed prioritizing marriage. She and I shared an expansive definition of family and a broad vision of social justice. I remember when she called me to discuss an essay she was writing defending her (our) position on marriage. It was to appear in (the now defunct) Out/Look magazine in tandem with a piece by Tom Stoddard, Lambda's executive director, who held the opposing view. Little did we know that the Stoddard/Ettelbrick debate on marriage would become the iconic articulation of the different visions about the proper place of marriage within our movement.

Tom died of AIDS in 1997, also at far too young an age.

The Stoddard/Ettelbrick essays have been reprinted in many textbooks and essay collections.

While at Lambda, Paula also represented Alison D., a nonbiological mother who was denied access to the child she had raised with her partner. In spite of her superb advocacy, the New York Court of Appeals ruled that Alison D. was nothing more than a stranger to her child and could not obtain court-ordered visitation. The same court, two years earlier, had expansively defined family to allow the partner of a deceased New York City tenant to remain in the rent-controlled apartment the couple had lived in together, even though only the deceased partner's name was on the lease. Paula told me she thought the court wasn't willing to deliver a second gay rights win in such a short period of time. Unfortunately, and to Paula's deep dismay, the same court upheld Alison D. in a 2010 case.

Paula was a deeply engaged, optimistic, and loving person. After Lambda, she held other important positions in gay rights organizations. When she was executive director of the International Gay and Lesbian Human Rights Commission, she told me how great it felt to work on sexual liberation in countries around the world.

After her diagnosis last year, Paula wrote many people, including me, described her status, and told us that what she wanted was to see us. Over brunch last November, she was as full of life and positive as ever. She will be honored later this month by SAGE. I'm sorry she did not live to receive the award in person.

May her memory be a blessing.

I'm amending this post to link to the New York Times obituary on October 8. The obituary highlights her family -- a partner, two children by a former partner (gay rights law professor Suzanne Goldberg), and a life that included Suzanne and her new partner. It also highlights her skepticism about marriage equality and quotes from the essay I referred to above.

El Paso has inclusive definition of domestic partners; Mayor and council members face recall

2011-10-04T16:11:00.010-04:00

I've got a special connection to El Paso, given that my partner and I have a residence across the New Mexico border in Las Cruces. El Paso is our local airport. It's also a city hard hit by the Mexican drug wars across the border in Juarez, something we were following as a local story for years before the national press picked up on it.

Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.

The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.

The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.

Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.

This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)

Arkansas law on same-sex couples raising children is...complicated

2011-10-02T17:48:00.003-04:00

Same-sex couples have a constitutional right to carry on a sexual relationship in their home. So do different-sex couples. That's what the Arkansas Supreme Court said in Cole v. Arkansas, the case striking down the ban on adoption and foster parenting by anyone living with a nonmarital partner. The court's ruling was based on the Arkansas constitution. (For more about the case, read here).

So how can an Arkansas court repeat the following: "It is true that unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided"? I can't explain it, but that quote comes directly from a custody case decided in September in which a lesbian mother received custody of her two children but was ordered not to have her partner spend the night when the children were with her. The case, Bamburg v. Bamburg, comes from the Arkansas appeals court and does not mention the Cole case. The quote in turn cites to an Arkansas Supreme Court case from 2001.

Bob appealed the custody awarded to his ex-wife, Lisa, but Lisa did not appeal the restriction placed on her partner's presence. She may have been grateful to get custody at all, especially given the fact that she and her partner lied about their relationship at a temporary custody hearing. The judge's restriction does not allow either parent to have a nonmarital partner present, but it does not appear that Bob has a nonmarital partner. What disturbs me about this is not its unequal burden. It is accurate that Bob can marry under Arkansas law and Lisa cannot, but no parent should be required to marry to have a life that includes his/her children and his/her partner. And you would think that would be clear in Arkansas after the Cole case.

Cole itself said that child custody principles and striking down the foster parent/adoption ban were not in conflict because foster and adoptive parents are individually scrutinized. But in a custody case a parent's partner is also individually scrutinized. Think how odd is the result in the Bamburg case: Lisa and her partner, Mary Alice, must be allowed to adopt a child if they are found suitable, even while living together. But by this ruling they are not allowed to live together with Lisa's biological children. And that is so even though the daughter, who was 15 years old at the time of the trial, stated that she wanted to live with her mother, had a good relationship with Mary Alice, had no problem with their relationship, and did not like that she had been unable to see her while the divorce was pending.

It amounts to this: the state cannot object to Lisa and Mary Alice's home, but Lisa's ex-husband can. And if he does, a court will be more than happy -- with no individualized justification at all -- to send a message to Lisa's children that there is something wrong with being a lesbian mother. Shame on him. And shame on the state for validating his discrimination which the state itself cannot practice.

End of DADT improves life for the children of same-sex couples

2011-09-21T01:38:00.006-04:00

In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received littled notice: children with a gay servicemember nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.

It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.

A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple was not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.

After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.

S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.

From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.

Protecting Families: Standards for LGBT Families available online

2011-09-15T14:33:00.005-04:00

At a plenary session of this year's Lavender Law conference, attorneys Bill Singer (New Jersey) and Joyce Kauffman (Cambridge, MA) unveiled an aspirational document designed to safeguard the parental relationships formed in same-sex couple families. Protecting Families: Standards for LGBT Families aims to keep families out of court by honoring the child's relationship with parental figures even when the relationship of the adults has disintegrated. You can now read and download the entire document here.

The document urges advance planning through obtaining legal protections for parental relationships, but in some states this can't be done, and in any state there are lots of people who don't have the money or don't make the time to make this happen. The legal system is so foreign to many non-lawyers. Or I'm reminded of the New Jersey couple who several years ago had one child and intended to have another, after which they planned to do second-parent adoptions of both children; they were waiting because it would be less expensive to do one proceeding for both children than to do two separate proceedings. But before there ever was a second child the nonbiological mother died, and the lack of a legal parental relationship meant that the child lost out on years of social security child benefits. It's precisely for situations like that that I advocate statutes establishing parentage at birth without the need for an adoption. See our DC statutes.

The standards are most important when the parents split up and there are no protections in place for a nonbiological or otherwise legally unrecognized parent. At this point the standards are aimed at the parent(s) with the legal power, and they make clear that honoring existing relationships is critical; that a voluntary resolution is best; and that homophobic arguments should never be used.

At the Lavender Law session where these standards were presented, an audience member asked whether the standards could be enforced on lawyers, whether a lawyer could be disciplined for not following them. The answer, of course, was no; no state bar is going to say a lawyer can't make an argument that is legal to make, even if it is unethical by these standards. But when lawyers refuse to represent a client who insists on a position contrary to these standards, it does send a message about what's right. Unfortunately, there are plenty of other lawyers the client can find.

There aspirational standards have value even if there is no enforcement mechanism. I personally thank Bill and Joyce for the hours they spent developing this important document.

National LGBT Bar Association gives 2011 Dan Bradley Award to...me

2011-09-09T18:46:00.004-04:00

And here is what I had to say about receiving this honor.

When I was a child, as my brother Stan who is here with me today can attest, I wanted to be an actress. And here I am. In Hollywood. Accepting an award. And so I would like to thank the Academy…I mean the Board of the National LGBT Bar Association…for recognizing the lifetime of work it has been my privilege to pursue.

I’m proud to be in the company of the previous honorees, from Nan Hunter, who received the inaugural Dan Bradley award, through Jon Davidson, last year’s recipient. I will forever cherish my place among them.

I am not the only Dan Bradley honoree this year. For almost 20 years, the Access to Justice Committee of the Georgia State Bar has conferred a Dan Bradley award. This year it went to Phil Bond, who for 15 years has been the managing attorney for Georgia Legal Services in Macon, Georgia. Mercer Law School, Dan’s alma mater, awards two of its students Dan Bradley internships every year. And the Legal Aid Association of California annually grants two Dan Bradley law student fellowships.

So who was Dan Bradley, that from coast-to-coast organizations keep his memory alive? On the National LGBT Bar website, he is remembered as the first chair of the ABA Section of Individual Rights and Responsibilities’ Committee on the Rights of Gay People. Here is a little more about him.

Dan was raised from age 5 in a Baptist orphanage in Georgia, separated from his five brothers and sisters. He worked his way through college and law school, and upon graduation in 1967 he joined legal services to work on behalf of migrant farm workers in Florida. He devoted himself to legal work for poor people with no access to civil justice, and when the Legal Services Corporation was founded in 1975 he was named the first San Francisco regional director. The next year he took a leave of absence to work on Jimmy Carter’s campaign. He was asked to play a role in the Carter administration, but he declined, concluding that he needed to keep a low profile. Dan Bradley was a closeted gay man.

Nonetheless, in 1979, he accepted the position as the second president of the Legal Services Corporation. In an interview with the New York Times three years later, after he stepped down and came out, Bradley described the double life he had led. It was filled with what he called “sheer, unmitigated fear.” Every day of it, he told the reporter, was “a terrible agony.”

Ronald Reagan had a plan to dismantle the Legal Services Corporation. Dan Bradley had a plan to stop him. Dan prevailed. Although Dan was personally ready to come out a year before he left public service, he didn’t. He feared it would help LSC enemies in their effort to abolish his agency.

Once he left government, Dan did come out, and he used his public stature to become a prominent gay rights advocate. He served on the boards of national gay organizations and became chair of the new ABA gay rights committee. Dan called on the ABA, at its 1983 annual meeting, to pass a resolution opposing discrimination on the basis of sexual orientation. Abby Rubenfeld remembers walking past the ballroom where the House of Delegates was meeting and hearing delegates laughing at what they considered the preposterousness of Dan’s proposal.

In 1985, Dan was diagnosed with AIDS. In June, 1987, he led a group of demonstrators who were arrested at the White House protesting Reagan’s inaction in combating the disease. In October 1987, he was a leader of the National March on Washington. Three months later, he was dead --- of AIDS-related complications. He was 47 years old.

Dan didn’t live to see the ABA adopt the resolution he had urged. That happened in 1989. Although there is still no federal protection against discrimination in employment on the basis of sexual orientation, something Dan actively pursued, he would undoubtedly be impressed with the advances in achieving LGBT rights of the last 20+ years.

But he would also know that right now, in his Georgia home town and elsewhere, there are men and women living the same double life he once led, afraid of losing their jobs, or their children, or their lives.

The Legal Services Corporation Dan fought so hard to save lives on, hampered by restrictions he would have hated. It also has, in inflation-adjusted dollars, less than half the funding it did when he was president. State funding and some private funding now provide 70% of the cost of civil legal assistance to the poor. LSC funds are distributed according to census data on where poor people live, but other funding sources are not, causing great disparities in the availability of lawyers. The lowest funded states are in the Rocky Mountains and the south, Dan’s home region, where funding is as low as 1/10th that available in the highest funded states. That’s a lot of poor people without access to civil justice.

I know that Dan would feel a special kinship with those of you here today who work in legal services offices representing poor LGBT clients.

I’ve made family law the focus of my work, with two specific emphases: protecting the ability of LGBT parents to raise their children and not making marriage the legal dividing line between relationships that count and those that don’t. These two passions come together in my opposition to the shocking phenomenon that in some states a child born to a lesbian couple has two mothers if the couple is married, or in a functionally equivalent legal status, but only one mother if the couple is not. Reinvigorating the discredited distinction between “legitimate” and illegitimate children, this time in the context of same-sex couples, is, to say the least, unacceptable.

And speaking of the field of LGBT family law, I would like to give a special shout out to the members of the National Center for Lesbian Rights National Family Law Advisory Council on which it is my privilege to serve. NFLAC consists of family law practitioners from around the country, in friendly states and hostile states, who represent LGBT clients in the formation and dissolution of their families. I have been so enriched by NFLAC members, from whom I hear stories of how LGBT people are actually arranging their family lives, sometimes in ways I could never have imagined. And to law students, if you want to do challenging work that makes a difference, LGBT family law is a growing field. I would like all the members of NFLAC to please stand to be acknowledged.

I wish I had the time to say something about each NFLAC member, but I do want to mention just a few people. Deb Wald from San Francisco, our chair, does more than conceptualize and organize our meetings. She spent much of the last few months organizing the pioneering parents luncheon held yesterday that honored a dozen clients who fought through the appellate courts of their states for the right to raise their children. Bill Singer, from New Jersey, takes the lead every year in organizing the day-long Family Law Institute, which was also held yesterday, that allows over 100 LGBT family law practitioners from around the country to discuss the issues they have in common. Alison Mendel. You are the only person I have ever nominated for the Dan Bradley award – before there was NFLAC, when I felt the work of individual family law practitioners went completely unacknowledged. Contrary to what is written in some publications, NCLR did not do the first second-parent adoption in the country, and it didn’t happen in California. In 1985, Alison Mendel, practicing family law in Anchorage, Alaska, got a judge to sign the first lesbian second parent adoption in the country. Alison still does LGBT family law, and other LGBT rights cases, in Alaska, and she’s looking to hire a new law graduate. Finally, Joyce Kauffman in Cambridge, MA. I have to mention you by name because you were my lawyer. When my ex and I wanted to do a second parent adoption of our daughter but we had long before split up, you made it happen. Thank you.

I’d like to close by acknowledging the members of my family who are with me – my partner Cheryl, my brother Stan and his partner, Brian. Thank you for your love, which turns out to matter more than anything else. Other family members are with me in spirit: My chosen family in Washington DC, and my daughter Lainey, who couldn’t take time off from her job in Boston. My father would have been here, but he died in 1998 at the age of 91. His journey from distaste and despair over my sexual orientation to acceptance of me and acknowledgement of the importance of gay civil rights is a testament to both his love and to the capacity of everyone to change and grow.

The closet almost destroyed Dan Bradley. On leaving the government, he told the New York Times, “I think I helped save Legal Services. Now I have to try to save myself.” Until not a single gay or trans person feels that way, and until HIV no longer infects 20% of men who have sex with men, there’s a lot of work to do.

Let’s do it!

LGBT family law practitioners honor clients who are "pioneering parents"

2011-09-08T22:49:00.006-04:00

At a luncheon today that was part of the Family Law Institute associated with the National LGBT Bar Association, twelve clients were honored for pursuing their right to raise their children through the appellate courts of states around the country. No one sets out to be a test case. But each of these clients was threatened with losing his or her child, and each kept going at great emotonal and financial cost, determined to keep that from happening.

The circumstances of the cases varied. Some won and some lost. And, as it turned out, some parents who lost in court nonetheless were able to remain actively involved parents. Some who won established great law for those who followed but did not get what they hope with respect to their own children.

For example, Michael Kantaras is a transgender man who married a woman who knew he was transgender. He adopted the child she was pregnant with when they married. And he consented as a husband to her insemination by donor semen and raised that child as well as his own. When the marriage ended, she argued that they did not have a valid marriage because he was legally a woman and therefore he was not the legal parent of the children. Although he won at the trial court, the appeals court ruled that, indeed, Michael was a woman and the marriage was not valid. The appeals court did not make a decision about the children, but Florida law made it unlikely he would obtain any ability to raise them. But Michael's story had a happy ending. Dr. Phil offered to provide the couple a family mediator, and through mediation they agreed to share raising the children.

On the other hand, in 1985, lesbian mother Sara Eaton won a stunning victory in the Alaska Supreme Court, which ruled that the trial judge was wrong to change custody of her son to her ex-husband. The court ruled that it was improper to rely on any real or imagined stigma that might come from the biases of others towards lesbian mothers. Language from that case has been cited in numerous other court rulings in the last 25 years. Well, Sara won on appeal, but when the case went back to the trial court the child had been living with his father for quite some time, and, on "best interests" grounds, the trial judge left the child there and gave Sara visitation rights. Sara appeared at the luncheon today with her son -- now 30 years old.

Several of the clients honored were nonbiological moms whose former partners tried to keep them from seeing the children they had planned for and raised together.

Credit for the luncheon goes to Deb Wald, chair of the National Center for Lesbian Rights National Family Law Advisory Council, for doing the lion's share of the work to make it happen.

Primetime My (Extra)Ordinary Family sends mixed transgender message

2011-09-05T00:29:00.005-04:00

I was all excited about the ABC Primetime program last week on transgender children. Especially excited because in my class this coming week I am teaching a court opinion in a dispute between divorced parents over custody of their son who wants to dress like a girl. The court sides with the father, who insists the child's gender variance should be discouraged. The case is as painful to read as those in which a trans parent loses his or her child after transitioning -- including having parental rights terminated, the most extreme measure the state can take against a parent.

Just a couple of years ago, Barbara Walters did an extraordinary job covering trans kids on a 20/20 special. Same network. I figured it would be just as good.

Well some of it was. The journey of a couple to understand their son who always knew he was a girl...including their decision to allow him to start a new school year, at age 10, as a girl. (The child's older sister goes into the classroom first to explain to the situation to the other students. Priceless.) The mom who wrote a book, "Princess Boy," because her son said that's what he was. Even the 19-yr-old MTF who finances her surgical procedures by earning money as a sex worker. That was hard to watch but it felt real.

But there was a catch. A big catch. Let's call him the repentant transexual. A man who decided in his 30's to transition to a woman who later regreted it and had surgery to revert to being a male. What was the point of this segment? If I have to ask the old Sesame Street question -- which of these things is not like the other? --this segment wins and it's not because he regreted his choice. It's because he was never a transgender child. That's right. A show about trans children -- young people, some very young, who know they are not the gender that matches their bodies -- with one segment about a man who never thought he was a different gender as a child and who makes his later journey sound like it was about fitting in with the trans friends he had later in life.

Maybe the producer of the show thought this added some kind of "balance;" maybe someone at the network thought such balance was necessary. But this wasn't balance. It was an adult describing a life trajectory completely different from everyone else's. All it will do is fuel the fire of those who are convinced there is no such thing as a transgender person, young or old.

Shame on you, ABC.

Nebraska Supreme Court rules nonbio mom entitled to hearing on custody and visitation

2011-08-29T11:26:00.013-04:00

The facts are sad but common. Lesbian couple, Teri Latham and Susan Rae Schwerdtfeger, were together for 20 years and had a child born to Susan using donor semen about 15 years into their relationship, in 2001. They cared for the child as co-parents. In 2006 they split up. The child stayed with Susan but Teri claimed that she continued to see her son three to five times a week and to support him financially. According to Teri, in 2007, Susan began to cut down on her visitation time, and, in December 2009, Teri filed a petition for custody and visitation.

Although the trial judge initially gave her 30 minutes of visitation three times a week, six months later the judge dismissed Teri's case without a trial (although it appears the judge talked to the child in chambers), ruling that the doctrine of in loco parentis did not apply to her case. Teri appealed, and last Friday the Nebraska Supreme Court ruled in her favor. Teri now has the right to a trial.

The court determined that no statute gave Teri standing to bring her action but that the common law doctrine of in loco parentis did give her standing. Previous Nebraska court rulings had used that doctrine to order both visitation and child support for a stepparent and to grant a grandparent custody. "The Legislature did not intend that statutory authority be the exclusive basis of obtaining court-ordered visitation," the Latham court held. "If Latham can establish that she has met the standard...for granting relief to one who stands in loco parentis, there is no reason to exclude this case from the benefits of the doctrine afforded to stepparents and grandparents who have created similar relationships with a minor." The court cited rulings in lesbian split-up custody cases from numerous other states, including Pennsylvania, Wisconsin, Kentucky, Arkansas, and Washington; it did not acknowledge the states that have denied nonbio moms the ability to obtain custody or visitation.

The court continued:

The primary determination in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship. Application of the doctrine protects the family from allowing intervention by individuals who have not established an intimate relationship with the child while at the same time affording rights to a person who has established an intimate parent-like relationship with a child, the termination of which would not be in the best interests of the child.

Susan disputed a number of facts that Teri asserted, primarily after the couple split up. The case, therefore, returns to the lower court for a trial. And here the Nebraska Supreme Court opinion gets a bit murky. Although there is lots of talk about determining whether it is in the child's best interests for Teri to receive visitation, the court also acknowledges the factual dispute about the time Teri spend with the child after the couple split up and the nature of Teri's relationship with the child. This makes it seems as though the trial judge could believe Susan's version of the facts and determine that after the break up there was no in loco parentis relationship and then not consider whether visitation is in the child's best interests. But the court also notes that the diminished visitation in the two years before the case was filed reflected Susan's decision, not a lack of desire on Teri's part to be in the child's life. Presumably this means the trial court has to take into account Susan's obstruction of Teri's relationship with the child.

Even on a pure "best interests" basis, Teri faces a problem when the case returns to the lower court. There is no evidence she has seen her child for more than a year. There was little contact for some time before that. What's in this child's best interests at this moment will look different from the way it would have looked when the couple first split up. To that extent, Teri may fare less well than will future nonbio moms in Nebraska. But Teri will always be one of those "pioneering parents" whose contribution to LGBT family law is being honored at this year's Lavender Law conference.

One other comment, which I've made before. So-called "gay friendly" states are not necessarily good states for respecting the families formed by same-sex couples having children. And so-called "not gay friendly" states can get it just right. For other examples, compare New York and Kentucky.

Tonight's episode of "The Closer" has faulty legal premise

2011-08-23T01:51:00.003-04:00

If you DVR'ed The Closer tonight, this is a spoiler alert. You do not want to read this post until you've watched it.

I hate when tv shows depend upon an absolutely incorrect legal premise. That's what happened on tonight's Closer. The murderer is motivated to have the victim killed because the victim shows up and says she is the biological half-sister of the murderer who was adopted as an infant. The murderer has her killed so she cannot claim a share of her biological father's estate.

But the adoption severed her legal relationship with her birth parents, so she does not stand to inherit as a child. Now if the murderer thought this but the police managed to say among themselves that the murderer was mistaken and need not have killed the victim, that would be fine with me. The problem is that the police talk about the possible inheritance as though it was a real motive -- something that would cost the murderer millions of dollars.

It did used to be true that adoption did not change inheritance laws, and the adoptee could not inherit from adoptive parents and continued to be able to inherit through biological parents. It took decades for the law to treat adopted children as the full legal children of their adoptive parents.

But it's been settled for a long time now, and suggesting otherwise on a popular tv show spreads misinformation. All the folks in Hollywood needed to do was talk to a lawyer who deals with estates or families. It's too bad they didn't.

Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services

2011-08-19T15:29:00.004-04:00

An Illinois state trial judge has thrown out the law suit filed by Catholic Charities of Illinois. The state of Illinois refused to renew the agency's contract to provide adoption and foster placement services because Catholic Charities said it would not place children with unmarried couples, including same-sex couples in civil unions. The agency sued.

Normally we think such lawsuits are about some religious freedom claim to discriminate. But in the first instance this suit was about whether Catholic Charities had a right to have its contract renewed. The agency claimed that because it had been renewed for 40 years, the state could not refuse to renew it this time without providing Due Process of law, which would include the right to present their point of view to a neutral decisionmaker.

The trial judge disagreed. He had previously granted an injunction against the contract termination in order to preserve the status quo. The injunction was granted on July 12. He heard argument on Wednesday and ruled yesterday. His short opinion concluded that "no citizen has a recognized legal right to a contract with the government."

Government attorneys argued on behalf of the state, but the ACLU of Illinois represented intervenors -- a lesbian couple wishing to become foster parents and a representative of all foster children in the state. The ACLU memoranda argued that since the state could not discriminate then a state contractor could not discriminate either.

The Thomas More Society, the "pro-life law center" representing Catholic Charities, has not decided what their next step will be.

British article on co-parenting by friends (or by people who meet on websites designed to match co-parents) ignores legal issues

2011-08-19T01:06:00.003-04:00

The British newspaper, The Telegraph, recently ran a story about people not in intimate relationships choosing to parent together. The lead family started as a single lesbian and a gay man chatting on an online fertility forum and is now a lesbian couple and a gay man. The coparents are not all gay. The article links to three different websites where people looking for such a co-parenting relationship can meet.

Britain regulates sperm banks, but there is no law governing how people meet who might decide to have a biological child together. The man and woman can do self-insemination or what the article calls "natural insemination (NI) – a euphemism in fertility forums for full sex."

Although I have written several posts about lesbians conceiving through sexual intercourse, I had never seen an actual term for the pratice, nor did I know that people discuss the practice explicitly in online chat rooms. The article does not discuss the legal consequences of picking one form of conception over another. The few US cases in which a man and a woman have sex explicitly so the woman can have a child alone have all had those agreements thrown out in a court case about the child's parentage. All the parents in the article are happy...for now. And since they are intending to coparent, maybe they expect to face a court if they have unresolvable conflicts later on.

But I have to wonder about the partner of the bio mom in the lead family in the story. She and the bio mom are the child's primary parents. But to be a legal parent she would have to complete a second parent adoption. A lesbian couple in Britain who conceive through the services of a medical facility can be parents without an adoption. So I am guessing she has no legal rights. There have been a couple of cases here recently of a bio mom teaming up with an uninvolved semen donor to try to get rid of a nonbio mom.

Like I said, all the parents in the article are happy...for now.

Maps of relationship non-recognition laws often obscure non-recognition of different-sex unmarried couples.

2011-08-16T13:09:00.003-04:00

In the process of planning one of my law school classes, I was perusing the websites with maps of the United States showing the status of relationship recognition or non-recognition across the country. There are so many different types of laws that it's a challenge to accurately portray each state with all its nuances. HRC and NGLTF each have useful, easy-to-print one-page non-recognition maps. The Movement Advancement Project has interactive maps more suitable to getting a quick online snapshot of each state's LGBT-related laws.

Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.

So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.

This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.

But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.

I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.

Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.

Numerous organizations and scholars join Lambda Legal in asking the US Supreme Court to hear Adar v. Smith

2011-08-12T00:14:00.002-04:00

Six friend of the court briefs were filed this week asking the US Supreme Court to hear Adar v. Smith, the case of the gay male couple denied an accurate revised birth certificate for the Louisiana-born child they adopted in New York. Lambda Legal represents the couple and filed a cert petition on their behalf last month.

Lambda's press release Thursday summarizes and links to the six briefs.

It is never an easy decision to ask the Supreme Court to hear a gay rights case. There is always the possibility of losing, thereby making bad law for the entire country. But the Fifth Circuit en banc ruling in Adar, which I wrote about here, has the potential to make mischief beyond the states that are bound by it (Texas, Louisiana, and Mississippi).

Lambda deserves huge credit for their representation of this couple and their coordination of the friend of the court briefs filed in support of the cert petition. I am one of the more than two dozen family law professors named as amici in one of the briefs, and I want to give a special shout out to Joan Hollinger at UC Berkeley and Courtney Joslin at UC Davis, as well as the National Center for Lesbian Rights, for their work on this brief. As I reviewed the list of fellow family law profs on this brief -- most heterosexual and without a primary focus in their work on LGBT families -- I am also grateful that so many highly respected scholars care enough about our families and the children we raise to lend their considerable prestige to this case.

We won't hear back from the Supreme Court until October.

New California statute protects nonbiological parents

2011-08-09T17:20:00.006-04:00

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

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

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

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

2011-08-03T00:54:00.006-04:00

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

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

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

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

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

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

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

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

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

New government report tells us how many employees can include same AND different-sex domestic partners on their health benefits

2011-07-28T00:38:00.007-04:00

This week, the Bureau of Labor Statistics released a report on benefits offered employees in the public and private sphere in March 2011. For the first time, the data include the percentage of employees eligible for health benefits that cover domestic partners. The report includes separate statistics for how many employees can cover same-sex partners and and how many can cover different-sex partners. (The report uses the term "opposite sex." Several years ago some trans folks raised my consciousness about the term "opposite," and ever since I have used "different.")

While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).

The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.

I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?

Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.

In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.

The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.

I stand corrected...sort of...about marrying a second time in New York

2011-07-25T18:58:00.007-04:00

So it turns out that New York law does explicitly allow a married couple to marry each other again. It's strange, but it's true, and no one seems to know why. Lambda Legal has put out an FAQ publication on marrying in New York which you can download here. What they say on this subject is as follows:

If for some reason you are still interested in re-marrying your spouse in New York, the marriage laws permit this, but you would be well advised to consult a private attorney or contact Lambda Legal's Help Desk before you take this step to determine if it could carry legal complications for your family.

I wonder if Lambda could be more helpful, perhaps by enumerating some of the possible "complications." The date of a marriage determines many things, including eligibility for certain benefits and accrual of marital property. The house in one spouse's name bought after the first date but before the second? It's marital property if the first date counts, but if the first date counts then what is the second date? Will someone argue (one of the spouses, even, when things turn ugly) that the first date was somehow symbolic but not legal? Assume the couple lived in New York before New York officially recognized same-sex marriages from elsewhere. It is clear the couple's marriage is now recognized, and that means it is recognized as of the date the couple married. If they marry again, one partner may later argue that the first marriage was, indeed, symbolic, some kind of political act never intended to have legal meaning, and that the later marriage in New York shows the couple intended only from that date on to be legally married.

And if years from now they divorce and mention only the New York marriage date, are they divorced? The possibilities give me a headache.

I've yet to find an LGBT family lawyer in New York who is advising her clients that it's fine to marry again. Yet all the discouraging is not dissuading those couples who really want to do this, and since the state allows it there is nothing to stop them. It's asking for trouble down the road.

Why is New York City telling married couples they can marry again?

2011-07-21T13:28:00.004-04:00

As the date of the first same-sex weddings in New York approaches, consider this. On the website for the Clerk's Office for New York City, there are questions and answers for same-sex couples. Scroll down and find the following: "Can my spouse and I get married in New York City if we already were married in another state or country?" The answer: Yes. The page goes on to say that New York recognizes same-sex marriages from elsewhere, and it says to talk to a lawyer about whether to marry again if you have questions about it. But it has just answered the basic question with a "yes," so who would have a question other than that?

Here's what's wrong with this answer. The couple is married. New York recognizes their marriage. Any state that would recognize a New York marriage would also recognize the coupe's marriage from Connecticut, or Massachusetts, or anywhere. Married couples don't marry again. They may renew vows, but this is not marrying again. The first marriage was a real marriage. To marry again suggests otherwise. It also confuses the heck out of WHEN this couple got married. If they divorce and don't mention both marriage dates, will they still be married because they didn't dissolve one of their unions? For government benefits, what date will count? For accumulation of property, what date will count?

New York LGBT family lawyers have been getting calls from clients since the moment the law was signed. They all say the same thing. You are married. Don't marry again. So why ask for all this trouble? I'm assuming that those who want to marry again are couples who live in New York who resent that they had to go elsewhere to marry and who want the validation of marrying at home. Maybe their friends and families could not attend the first wedding because of distance and they want to do it the way they always wished to.

I understand those feelings. But frankly it reminds me of another thing I hear from LGBT family lawyers: When a couple marries and they live in a state that does not recognize their marriage, sometimes one or both thinks they do not have to divorce. Why divorce, asks the married lesbian in Arizona, when Arizona already says I am not married? In other words, they act as though the marriage was not real. That, too, can have bad consequences. These circumstances are similar because in each instance someone who went somewhere to legally marry thinks it appropriate to act as though they are not legally married.

So my advice to married same-sex couples in New York: Don't. And my question for New York City remains. Why this advice? Is it to collect those marriage license fees? If so, balance your budget some other way and don't lead New York residents down a path that suggests their marriages are not real and that spells trouble later.

Ohio Supreme Court rules against nonbio mom

2011-07-14T12:57:00.005-04:00

Over the scathing dissent of a single judge, the Ohio Supreme Court this week ruled that a bio mom, Kelly Mullen, revoked her co-parenting agreement with her ex-partner Michele Hobbs,and that therefore Hobbs could not obtain a hearing on whether she should have joint custody of her now six year old daughter, Lucy. I wrote about the oral argument in the case here.

Ohio does allow a nonbio parent to obtain custody. The legal test is whether the "parent, by her conduct with a nonparent [sic], entered into an agreement through which the parent permanently relinquished sole custody of the parent's child in favor of shared custody with the nonparent." Although Mullen and Hobbs had numerous documents in which Mullen said that she considered Hobbs her child's "co-parent in every way," the court held that the documents were revocable and that Mullen revoked them.

The court reiterated the rule that no written agreement was required to meet the test, yet every nonbio mom in Ohio can count on retaining her status only if she in fact has a written agreement and it contains some magic words that the bio mom is permanently relinquishing sole custody. I say this because the documents in this case appear to do just that but did not have such magic words and somehow the court found them revocable.

The court did not rely on the status of the semen donor in reaching its result, but it did note some things about the semen donor that are worth mentioning because they are atypical (although by no means unheard of). There was a donor agreement between Mullen and the donor, Scott Liming, who was a friend of Hobbs. Hobbs was not a party to the agreement (note to Ohio nonbio moms: be a party to any written donor agreement!). The agreement said Liming's name would be on the birth certificate but that he would have no parental rights and so would have no custody rights and no obligation to pay child support (note to all in Ohio: it was not an issue here, but if everyone agrees the donor is not a parent, keep his name off the birth certificate!). During the litigation, Mullen and Liming revoked their donor agreement. In my earlier post, I wrote about Liming's support for getting rid of Hobbs as a parent. By the way, there was as separate ceremonial birth certificate listing Hobbs and Mullen as Lucy's parents, which the court disregarded along with all the other written documents indicating Hobbs's parental status.

The Ohio Supreme Court repeatedly commented upon Mullen's refusal to sign a shared custody agreement with Hobbs. But, as the dissent points out, the issue of signing such an agreement arose AFTER the relationship between the couple started to fail. Mullen did sign numerous documents before the child was born, and did create a two parent family, and did have the child call Hobbs "Momma," and did go to a lawyer who drew up all those documents precisely to protect Hobbs's relationship with the child. To the fact that the documents referred to Hobbs as a "co-parent," the court said that term was "not synonymous with an agreement to permanently relinquish sole custody in favor of shared legal parenting." The court continued: "'Coparenting' can have many different meanings and can refer to many different arrangements and degrees of permanency."

As I wrote those last words I found myself in pain and furious. It is completely clear what this couple did. They planned for a child together. They had a child and raised her as two moms for more than two years. They wrote documents to protect Hobbs's relationship as the child's parent. The lawyer who wrote those documents testified that he wrote the documents "to protect the rights of the co-parent to be a full co-parent." When they split up, Mullen made an argument that the court bought that removed Hobbs from Lucy's life. "Coparent" may mean different things in different circumstances, but in this case its meaning was clear and the court disregarded it.

I do find myself wondering if the presence of a "father" for the child influenced some on the court. As I wrote about here, Mullen and Liming gave a tv interview in which they said they really wanted Lucy to have one mom and one dad so she would not be confused. Add to that the fact that the Alliance Defense Fund and Liberty Counsel both supported Mullen's position, and you can see this erasure of Hobbs for the rewriting of history that it is.

In some states, a nonbio mom can't even get her foot in the door. (That's you, New York, unless the nonbio mom was married to or in a civil union with the bio mom, or adopted the child). Ohio does let a nonbio mom in the door, but this case suggests that what she has to prove will make it much harder than it should be to protect the child's parental relationships.

The dissent ends with the following: "Mullen taught her daughter to call another woman "Momma" and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough. It shouldn't be." Lots of parents wish they had not had children with a former spouse/partner. That's a common feeling when the couple's relationship deteriorates and one parent wishes she could raise the child without ever interacting with the other parent. But creating a child together has consequences, and it does tie parents to each other long after their relationship fails. That's the rule for different-sex couples and it should be the same rule for same-sex couples. I'm sorry the Ohio Supreme Court disagrees.

Lambda Legal requests US Supreme Court review of Louisiana birth certificate case

2011-07-13T16:41:00.007-04:00

This week, Lambda Legal filed a petition for certiorari in the US Supreme Court, asking the Court to hear an appeal of Adar v. Smith. That case, which I have written about since the first court ruling almost a year and a half ago, challenged Lousiana's refusal to grant an accurate amended birth certificate to a child born in Louisiana and then adopted in New York by a same-sex couple.

In February, the Fifth Circuit, sitting en banc,issued an outrageous opinion upholding Louisiana's position. Although states must give Full Faith and Credit to court judgments from other states (which an adoption decree is), the 5th Circuit said that the couple had no right to sue that state to force its compliance with the Full Faith and Credit clause of the US Constitution. The cert petition points out that other Circuit Courts have ruled differently, and a "Circuit split" is one reason the Supreme Court hears cases.

Louisiana justified its policy by saying that it does not allow unmarried couples to adopt, even though denying this child an accurate amended birth certificate has no impact on what adoptions the courts in Louisiana grant. (And has no impact on the fact that this child has two unmarried, same-sex parents). The Lambda cert petition does a great job of demonstrating the long line of cases in which the Supreme Court has ruled that a child should not suffer because of the choices made by his/her parents, including many about children of unmarried parents.

The Supreme Court hears few cases. I hope it takes this one. It's scary to think of losing there, but the 5th Circuit opinion could do a lot of damage if other courts follow its scurrilous reasoning.

New York employers ending domestic partner benefits

2011-07-09T12:47:00.005-04:00

And so it begins. New York allows same-sex couples to marry, and some employers are now eliminating domestic partner benefits. So the New York Times reported yesterday. This is exactly what Katherine Franke feared in her Times op-ed, published the morning that turned out to be the day (night,really) marriage equality came to New York. And these are large employers, whose policies affect thousands of people...Corning, IBM, Raytheon.

Every gay rights advocate quoted in the Times article opposes dropping DP benefits. But none of their organizations have made it a priority to say that no one should have to marry a partner to provide for their economic and emotional well-being. Case in point: Lambda Legal represents Arizona public employees with same-sex partners who don't want to lose their domestic partner benefits. Employees with different-sex partners are also losing their benefits, but Lambda takes the position that they aren't really losing their benefits because they can obtain them by marrying, which is not available to same-sex couples in Arizona. I decried their approach in this post precisely because it makes marriage mandatory for different-sex couples and suggests that it would be fine to have it mandatory for same-sex couples as well if they could marry.

It's worth remembering that domestic partner benefits started (in 1982) as an alternative to marriage and were always available to both same-sex and different-sex partners. The first employers to establish same-sex only policies were software developer Lotus in Massachusetts and Montefiore Medical Center in New York in 1991. They explicitly said their policies were based on the exclusion of same-sex couples from marriage. The next year, Levi Strauss became the first Fortune 500 company to provide DP benefits, and it chose to cover both same- and different-sex partners. There's been a split among employers ever since. The Times piece yesterday says Eastman Kodak, which covers both gay and straight couples, has no plans to require marriage of anyone.

Finally, as I wrote last fall, my employer, American University, has gone from covering only same-sex couples to covering both same- and different-sex couples. They were nudged in part by the fact that, even though DC allows same-sex couples to marry, DC also has registered domestic partnership which is open to different-sex, as well as same-sex, couples. Insurance policies that cover spouses must also cover domestic partners. American University now has a functional test for those who are not married or registered as domestic partners. The NY Times even published my letter to the editor about it. Scroll to the end of this page to read it. I hope some employers in New York follow.

Ohio Supreme Court reinstates nonbio mom visitation

2011-07-07T22:50:00.003-04:00

The Ohio Supreme Court today stayed the order of an appeals court that halted visitation between nonbio mom, Julie Rowell, and the child she raised with her former partner, Julie Smith. I wrote about the appeals court ruling here last month. Today's order, signed by Ohio Chief Justice Maureen O'Connor, explicitly reinstates the visitation ordered by the trial judge who heard the case.

The issue in the appeal is whether a trial judge has the authority to order temporary visitation during the time it takes for a nonbio mom's custody petition to go to trial. Without such an order, the child's relationship with the nonbio mom is completely disrupted for the months -- or longer -- it can take for the case to be resolved. Lack of contact over that period of time is bound to have an impact on the child and could affect the judge's final decision about what custody arrangement is in the child's best interest.

I hope this stay is an indication that the Ohio Supreme Court knows the appeals court was way off base.

NY Times highlights family trees complicated by assisted reproduction

2011-07-05T21:01:00.005-04:00

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

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

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

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

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

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

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

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

Complicated, indeed.

Same-sex marriage and polygamy in the same breath? Two (plus one) New York Times debaters think so

2011-07-04T21:49:00.003-04:00

Yesterday's "Room for Debate" in the New York Times is about "Marriage: The Next Chapter." I found it interesting that two of the six commentators used the opportunity to mention polygamy. Philosophy professor John Corvino notes that opponents of same-sex marriage "continue to predict a slippery slope to polygamy, polyamory and other “untested, experimental” family forms." He continues: "The grain of truth in their prediction is this: recent progress reminds us that marriage is an evolving institution and that not everyone fits in the neat boxes that existing tradition offers." (That's before remarking that polygamy is actually quite traditional). Law professor Rick Banks predicts that "over time, our moral assessments of [polygamy and incest] will shift, just as they have with interracial marriage and same sex marriage."

Advocates of marriage equality typically distance themselves as far as possible from polygamy. Those most averse to a discussion that includes both ideas in the same conversation may be troubled by the latest book from a third of the New York Times debaters, sociologist and long time gay rights ally Judith Stacey. Her comment in the Times debate does not mention polygamy at all; it's about the unfairness of privileging marriage and the importance of family policies that respond to the needs of all the ways people live (with a special shout-out to me that I deeply appreciate).

But Stacey's new book, Unhitched: Love, Marriage, and Family Values from West Hollywood to Western China, places the connection between gay couples and polygamous families front and center. Stacey's research on gay men in Los Angeles occupies the first part of the book, presenting pictures of the complex lives of 50 men born between 1958 and 1973 and those connected to them. She conducted the first interviews between 1999 and 2003 and then followed up in 2008 with the 29 men she could still locate. I am especially appreciative of Stacey's attention to the men raising children (about half of them) including those in what she calls poly-parent families.

The next part of the book presents the field research Stacey conducted of polygamous families in South Africa. The women Stacey describes agree to a family structure of one husband and more than one wife, not as their first choice, but as the best choice among their available options. Their options were pretty bad, and the picture Stacey paints is not an attractive one. Yet she strongly opposes criminalization of polygamy and believes that legal recognition in the US would make it easier to regulate abuses (underage marriage, rape) and could "nudge" polygamy towards gender equality. She also hopes her book will make it easier for feminists to both "fathom and countenance" polygyny. While that might be too much to expect, Stacey's arguments against criminalizing polygamy are strong. And her two fellow New York Times debaters also resist separating entirely the legal claims for marriage equality and polygamy.

Judith Stacey has been an expert witness for marriage equality and a tireless supporter of the ability of gay and lesbian parents to raise healthy children. The legal rights of gay and lesbian families are farther along today because of her work than they would have been without it. But like all those who tell the truth about families, she does not simplify what is complex. In the process, she has publicly articulated views that make gay rights advocates uncomfortable.

She wrote in 2001 that there were differences -- not deficits, but differences -- between children raised by lesbian mothers and those raised by heterosexuals. This confounded those whose legal strategy had been dependent upon arguing that lesbians should not be denied parental rights because there were no such differences. Unhitched makes the case that legalizing same-sex marriage is not a demand completely divorced from the legal status of polygamous unions. From the looks of yesterday's New York Times debate, she's not the only gay rights supporter willing to say this out loud.

NY Times op-ed weighs in for a "beyond marriage" approach

2011-06-24T14:53:00.002-04:00

Columbia Law prof Katherine Franke got a prime placement today in the New York Times for a tempered view of what comes with marriage equality for same-sex couples. The piece is well-timed as everyone watches the cliffhanger in the New York Senate. Among Katherine's excellent points -- that the availability of marriage has made domestic partner benefits disappear and that neither same-sex nor different-sex couples should be forced to marry to provide for the health of their partners. Katherine fears she could be in this position if New York allows same-sex couples to marry.

I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.

To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.

If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.

Wisconsin trial court upholds domestic partner registry

2011-06-21T17:22:00.004-04:00

Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.

Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.

Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.

Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.

Let the maps begin! Williams Institute releases first data from Census 2010

2011-06-16T17:39:00.002-04:00

Long before I met the incomparable Gary Gates, I admired his work. While at the Urban Institute, Gates co-authored The Gay and Lesbian Atlas, a book with color-coded maps, by state and county, of the numbers of same-sex couples in the entire United States. It is the book that proved the old adage that "we are everywhere." Literally. The data in Atlas came from the 2000 Census. It was quite a revelation that we could learn so much from that source.

Well, Gary Gates is now at the (also incomparable) Williams Institute at UCLA, and today he released the first state maps (again color-coded) with data from Census 2010. Turns out there are 11,259 same-sex couples in Alabama, 27% of whom are raising children. There are 4,248 same-sex couples in Hawaii, 23% of whom are raising children.

Gates has also prepared an explanation of his methodology. The FAQ's are here, with a link to a longer and more technical brief. Next week, Williams will release reports on California, Delaware, Pennsylvania, and Wyoming. Census data by state will be released weekly over the course of the summer.

I've had the pleasure of seeing the glee on Gary Gates's face as data about LGBT people come across his computer screen. How lucky for the rest of us that he can tell us so much about ourselves. Yes, it is very limited. Most especially by the fact that the census counts only same-sex couples, and only couples who live together. There are some data sets that ask directly about sexual orientation, but not the census. Still, no other data set can give us maps like this.

Lucky for me that I will be at UCLA beginning in the middle of July, as the Visiting McDonald/Wright Chair in Law and Faculty Chair of the Williams Institute. That means many chances to see Gary's glee in person!

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

2011-06-14T17:46:00.002-04:00

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell's petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court's order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell's attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child's life and who has teamed up with the bio mom can negate a nonbio mom's claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn't get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child's second mother by the sheer passage of time.

Center for American Progress highlights ending poverty and protecting all families

2011-06-08T09:31:00.004-04:00

Family structure too often is the fall guy for everything bad in society -- violence, illegal drugs, homelessness, illiteracy, and, of course, poverty. The right wing loves to tell us that the root of all social problems is the decline of life-long heterosexual marriage and that the solution is ... life-long heterosexual marriage.

This time of year -- the approach of Father's Day -- is prime time for such messages. Not only do these ideas disrespect families headed by lesbians and gay men, they let off the hook all the social and economic policies that keep poor and low income people where they are and let the rich get richer. If the solution is marriage, then the fault lies with the individuals who don't marry, not with the entrenched interests of the rich.

The Center for American Progress has long been my idol on how to really end poverty. Their 2007 report, From Poverty to Prosperity: A National Strategy to Cut Poverty in Half, is still an excellent road map.

I also highly recommend the program they are hosting tomorrow, June 9, Strengthening Families: Developing a Progressive Agenda that Promotes Family Stability and Cuts Poverty. Here is the description:

A progressive view of the role of government supports the notion that governments should act affirmatively to create and protect the conditions necessary for all families and children to thrive. Developing policies to support and stabilize families should go beyond a narrow focus on marriage promotion and unmarried childbearing; policies should reflect the fact that decisions related to family structure, relationships and parenting are inherently personal, and are made complex by one’s life and economic circumstances. Progressive policies must recognize and address the reality of today’s complex family dynamics.

I couldn't say it better myself. If you can't attend the program in person (here are the details), you can stream it live. The speakers have impeccable credentials. They want to end poverty without blaming those who live in families other than married mother/father form. It doesn't get better or smarter than that.

Wyoming Supreme Court allows married same-sex couple to divorce

2011-06-07T12:32:00.006-04:00

The five justices on the Wyoming Supreme Court ruled unanimously yesterday that a lesbian couple married in Canada could divorce in Wyoming. The opinion in Christiansen v. Christiansen reverses a lower court ruling that the couple could not divorce because Wyoming law prohibits same-sex marriages.

Paula and Victoria Lee Christiansen were married in Canada in 2008. Paula filed for divorce in February 2010. Wyoming has a statute defining marriage as between a man and a woman. The court defined the issue as "whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding." The court pointed out that Wyoming also has a statute saying marriages validly entered into in another country are valid in Wyoming. That rule, the court said, is not absolute because the state can find a marriage invalid if it is "contrary to the law of nature" or if it is a marriage "which the legislature of the state has declared shall not be allowed any validity." (Those quotes from an earlier court opinion.)

The court reconciled this "public policy" exception to recognizing foreign marriages by saying the following: "Recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship." The court specifically noted that the couple was not trying to live as a married couple in Wyoming or "enforce any right incident to the status of being married."

This is a very interesting ruling. The appellant's brief says that the couple acquired real and personal property and debts during the marriage and asked the trial court to resolve those issues. Property division (and spousal support) are "incident to the status of being married." Also, the reasoning of the court could apply equally to any consequence of one spouse dying. So intestate succession, workers comp survivors benefits, and other benefits conferred on widows would also not involve "recognition of a marriage as an ongoing relationship."

Some Wyoming legislators tried to file a friend of the court brief in the appeal, with representation by the Alliance Defense Fund. The court denied, twice, motions to permit ADF lawyers to appear and to file the amicus brief. The pleadings, motions, and orders are available on the court's website and make for an interesting read. The court did not say why it denied leave to file the amicus brief, but the objection filed by the appellant's lawyers noted that the legislators and ADF were pursuing a "political agenda" that did not belong in the court. Given the interest that some legislators have taken in this issue, it is bound to come up again. Wyoming does not now have a constitutional amendment banning same-sex marriage or recognition of same-sex marriages from elsewhere.

NCLR attorney Maya Rupert ties marriage equality to support for all families

2011-06-06T00:11:00.002-04:00

The National Center for Lesbian Rights Federal Policy Director, Maya Rupert, wrote a terrific blog post that appeared on the Huffington Post yesterday. "The fight for marriage equality is about fighting for equal recognition of all families," Rupert writes. "It's about combating the assumption that someone else can tell us what our families should look like." The piece highlights the common interest shared by both LGBT families and black families in protecting all family forms. Highly recommended read!

Civil unions in Illinois good news for same-sex couples there who need to divorce

2011-06-05T01:49:00.005-04:00

It's a growing problem that will only grow more. Same-sex couples from around the country, who have travelled to places that allow them to marry, go home, later split up, and find out they cannot divorce. Family law practitioners specializing in LGBT families are working on creative solutions that allow those couples to go their separate ways without further legal entanglement.

When Illinois joined the ranks of states allowing civil unions this week, it also became a state in which couples can end their marriages, domestic partnerships, or civil unions from elsewhere. That's because Illinois now recognizes those relationships as Illinois civil unions, and therefore they can be dissolved in the same way that Illinois civil unions are dissolved. Chicago attorney Richard Wilson, who was instrumental in the drafting of the new law, reports that as couples flocked to the County Clerk's office on June 1 to get their civil union licenses, he headed off to Circuit Court Clerk's office to file several Petitions for Dissolution of Civil Union.

The difficulty couples face is a result of the fact that states don't require residency to marry (think destination weddings or Las Vegas wedding chapels), but they do require residency to divorce. So the couples who married in Massachusetts, DC, etc, cannot divorce if they live in a state that won't recognize their marriage, at least for purposes of getting divorced. Some couples think this means they can just go their separate ways, but it's not that simple. They are still married in states that recognize same-sex marriage. And if what they have is a civil union, say from Vermont which was the first place to allow them, they are still in a legal relationship in those states that recognize civil unions from other states, even if they don't recognize marriages.

And a couple's status in their home state can change. Here's what happened in Illinois. Before June 1, a couple in an Iowa marriage had no legal relationship in Illinois. Likewise a couple registered as domestic partners in DC. Those couples might have split up already without doing anything to adjust their legal status, thinking they had no status in Illinois. Well, as of June 1, 2011, both those couples are in civil unions in Illinois. Rights of inheritance and other potentially weighty matters turn on marital status, so those couples need to dissolve their relationships. Now they can...and they must.

Bottom line: Anyone who entered a formal status with a same-sex partner, in any state, needs to talk to a lawyer if that relationship ends.

Boston Review program on the future of marriage available online

2011-05-24T14:13:00.003-04:00

In March, I spoke on a panel sponsored by Boston Review. It is now available online here. Harvard historian Nancy Cott, known for her expert testimony in the California litigation challenging the constitutionality of Prop 8, was the primary speaker. (You can read the transcript of her testimony in the Perry litigation by going to this website and clicking on days 1 and 2 of the transcript). If you have not followed her assessment of the history of marriage and why allowing same-sex couples to marry is consistent with that history, this talk is a concise summary of her work. Other speakers were Mary Bonauto of GLAD, Michael Bronski, and an opponent of marriage equality.

It was especially interesting to me that more than one audience member challenged the panelists to think about arrangements other than couples. Audience questions and our responses are included on the video.

California appeals court rejects possibility of three parents in dependency action

2011-05-23T15:35:00.016-04:00

Same-sex couples are no worse than heterosexual couples when it comes to raising children. This we know and insist upon regularly when challenged in court cases, in legislatures, or at the ballot box. Well occasionally a case comes along as a reminder that we are no better, either. So it is with In re M.C., decided earlier this month by the Second Appellate District of the California Court of Appeal (from the Los Angeles area).

M.C. came into state custody when her biological mother, Melissa, was arrested as an accessory to the attempted murder of Melissa's wife, Irene. Here is a summary of the details: Melissa and Irene got together in 2006, registered as domestic partners in February 2008, and separated in May 2008. Melissa began a relationship with a man, Jesus, became pregnant by him, and lived with him for the first few months of the pregnancy. In July, 2008, Melissa filed to dissolve the domestic partnership and also obtained a restraining order against Irene arising from over a year of incidents of physical violence. Melissa went back to Irene in September 2008 and the couple married in October, 2008, during that period when same-sex marriages were legal in California. Melissa did not tell Jesus where she was living, and he did not try to contact her.

MC was born in March 2009 and given the surname that Melissa and Irene shared, although Melissa was the only parent listed on the birth certificate. Melissa moved out with M.C. a few weeks later, and Irene filed for joint custody in June. In that same action, Melissa obtained a restraining order against Irene. Melissa resumed contact with Jesus, who had moved to Oklahoma. Jesus sent her a little money, and she regularly took MC to visit Jesus's family. At Melissa's request, Jesus also submitted a declaration of paternity in the divorce proceeding in an effort to defeat Irene's custody request.

In September 2009, Melissa's new boyfriend stabbed Irene in the neck and back, causing severe injuries. Irene saw the assailant run from the scene and get into Melissa's car. This is what resulted in Melissa's arrest and incarceration. The dependency petition for M.C. said that the juvenile court had jurisdiction over the child because of Melissa's incarceration and history of drug abuse and Irene and Melissa's history of domestic violence.

The opinion goes through the history of violence, drug use, lack of suitable living situation, etc with respect to both Irene and Melissa. The Department of Child and Family Services (DCFS) contacted Jesus in Oklahoma and interviewed him by phone. He asked to have the child placed with him, and he returned to California to visit M.C. and attend meetings and court hearings. At some point there was agreement that M.C. should live with Melissa's grandparents, although at the last minute DCFS recommended that Jesus receive sole physical custody, Jesus and Melissa receive joint legal custody, and Melissa and Irene receive supervised visitation.

The trial judge found that Melissa was M.C.'s biological mother and that both Jesus and Irene were presumed parents, Jesus because of his biological status and relationship with the child, and Irene because she was married to Melissa when the child was born. The court placed M.C. with the Melissa's grandparents, subject to unsupervised visitation by Jesus and his mother and supervised visitation with both Irene and Melissa (Melissa's, of course, would have to take place where she was incarcerated....). All three parents appealed. Interestingly, Melissa and Irene both challenged the court's ruling that Jesus was a presumed father. Jesus challenged only the court's refusal to place M.C. with him.

The issue on appeal was the propriety of the trial court's finding (which the appeals court calls "novel") that M.C. has three presumed parents. Presumed parents have a right to participate in dependency proceedings, have appointed counsel, and receive reunification services. And here is where the Court of Appeal delivers the disturbing legal conclusion that a child cannot have two mothers or fathers if such recognition would result in the child having three parents. The California cases cited by the court for that proposition, however, do not need to be read that way. The appeals court remands the case to the trial court to determine which presumption to honor, using the statutory standard that when there are conflicting presumptions "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."

One judge (of the three hearing the appeal) went further and concluded that the presumptions should have been resolved in favor of Jesus and custody placed with him immediately.

Here are the troubling aspects of the court's ruling. (As opposed to the troubling aspects of M.C.'s life, which are, of course, numerous). I'm chronicling these because the reasoning of this case may hold sway when there is a known biological father in what are the more common circumstances of a same-sex couple who are both fit parents.

The law must be able to recognize that a child can have three parents. The categorical statement in this opinion to the contrary is wrong on California law and as a matter of policy. California trial courts are already allowing a bio mom's partner to adopt a child without terminating the rights of a semen donor who is functioning as a father. A nonbio mom in California becomes a legal parent through holding the child out as her own or through being married to or in a domestic partnership with the bio mom. That should not be jeopardized by the existence of an identifiable genetic father. The Children's Advocacy Institute at the University of San Diego School of Law filed a friend of the court brief advocating that M.C. had three parents.

Jesus may be the best candidate of these three people to raise M.C., but he should not have qualified as a presumed father under California law (for reasons that involve more analysis of appellate opinions than I can discuss here and that should make for a terrific law review note for some current law student). Melissa wasn't in hiding after she left him, and Jesus could and should have shown some interest in raising M.C. from the beginning if he wanted to claim parental rights. This case makes it too easy for a bio mom to enlist a bio dad in doing away with a nonbio mom's rights.

The appeals court says Irene "likely" had a superficial attachment to M.C. because the couple and child lived together for only three weeks. Well, a couple of years ago a different California appeals court rejected the argument that a period of time was necessary before a nonbio mom could be considered a parent. (See my post about Charisma R. v. Kristina S. here.) This court reveals its hostility to nonbio moms in another place -- a completely unnecessary footnote in which it suggests that the purpose of "paternity" determinations is providing genetic history for a child and that those provisions should not be interpreted to facilitate "parentage" determinations for nonbiological parents. Fortunately, the California Supreme Court has ruled otherwise, going back to 2005.

I've written elsewhere that we are likely to see increasing instances of a child conceived through sexual intercourse born to a woman who has a same-sex partner or spouse. I am deeply troubled by the idea that method of conception determines legal parental status, although I begrudgingly admit that seems to be the current state of the law.

Taking the facts in this opinion as true, I would also conclude that M.C. belongs with Jesus. It is possible to reach that conclusion without unnecessary pronouncements limiting the number of parents a child may have to two or privileging biological connections. My lawyer friends in California tell me this opinion might be ripe for depublication, which would limit its impact. I'm banking on that.

Washington state enacts comprehensive parentage statute

2011-05-20T18:12:00.010-04:00

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

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

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

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

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

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

Timo Miller website raising funds for defense of man who helped Lisa Miller evade court order to transfer custody

2011-05-14T22:12:00.003-04:00

Timo Miller, the Christian missionary and Mennonite pastor arrested last month (details here)for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller, has set up a website telling his side of the story and seeking funds for his defense.

A Vermont court ordered a change of custody after Lisa repeatedly defied the court orders providing for visitation between Isabella and her other parent, Janet Jenkins. After the last hearing in the case, but before the court issued its ruling, Lisa fled the country, allegedly with Timo Miller's help. She and Isabella remain in Nicaragua.

The Timo Miller website compares Lisa to a mother goose who will "fight to the death to protect her young." It describes same-sex couples raising children as follows:

Since God has not intended for two men or two women to raise children as a family unit, they can’t produce children on their own. This creates a problem in their agenda to create the perception that homosexual behavior is normal. Thus they resort to adopting children or using artificial insemination from a male donor in the case of a lesbian relationship. Can you imagine being a child growing up in the middle of such an environment?

According to the version of events on the website, Lisa "realized the emptiness of her lesbian lifestyle" and "the danger that lifestyle posed for her young daughter." So she "repented of her immoral ways" and sought to make a new life. "Unfortunately for little Isabella," the website continues, "the lesbian activists decided the situation was an opportunity to further their agenda. They filed lawsuits on behalf of Janet Jenkins (the former lesbian partner) to force visitation rights and eventually gain custody of Isabella in an attempt to prove that their “civil unions” have parental rights."

One of the many things wrong with this version is that Lisa herself filed to dissolve the couple's civil union and requested custody, with visitation rights to Janet. The website describes Lisa's losses in the Virginia appellate courts as those courts "wash[ing] their hands of the situation because of some legal technicalities." Those "technicalities" are the laws explicitly designed to prevent parental kidnapping by giving control over custody litigation to the state that issues the initial court orders. When Lisa filed in Vermont, she gave that court the power to decide Isabella's custody and visitation. That's not a "technicality."

The website puts references to Janet's parental rights in quotes (i.e., "parental") and then says the accusations against Timo Miller beg the question of how "a biologically unrelated individual who has not gone through the adoption process" can even have parental rights. "Most states have specific prohibitions banning homosexual marriage," it continues, "helping to prevent a situation like this from occurring." If this turns out to be his defense, it will get him nowhere. In numerous situations, legal parentage does not require biology or adoption. And laws banning access to marriage for same-sex couples have never been interpreted to prohibit parenting by same-sex couples. (Some states do not allow both partners to be legal parents of their children -- see my recent post about Arizona for an example -- but that's entirely separate from whether they can marry.)

The case summary page on the website concludes: "Will you stand beside Timo as he faces the accusations against him? Will you pray for him and his family? Has God blessed you with the ability to help financially?"

Miller won't be able to build a defense around his religious convictions, but it looks like that's what her's going to try.

Adoption news: federal anti-discrimination bill reintroduced; Catholic Charities threatens Illinois; Evangelicals cut ethical corners and worse

2011-05-07T22:36:00.014-04:00

California Rep. Pete Stark this week reintroduced the Every Child Deserves a Family Act. The bill prohibits discrimination on the basis of sexual orientation, marital status, and gender identity by an entity that receives federal funding for adoption services or contracts with an entity that receives such federal funding. Meanwhile, with Illinois authorizing civil unions as of June 1, Catholic Charities there this week urged passage of legislation that would allow them to (continue to) discriminate against same-sex couples. Catholic Charities is sounding an alarm that it might have to stop providing adoption and foster care services in Illinois. Well, the Every Child Deserves a Family Act would override any such legislation (not that Illinois seems inclined to go in that direction). The federal statute would mean that no agency under contract to a state could discriminate on any of the named bases.

I'm proud of the state legislators (and those in my home town of the District of Columbia, which should be a state but isn't...that's another story) who stand up to Catholic Charities and let them know that others can provide the services they now provide if they wish to discriminate. Illinois Catholic Charities wants to get away with saying that they will refer same-sex couples to other agencies, as though that makes their own discrimination okay.

Meanwhile, thanks to Mombian blogger Dana Rudolph, who also writes for Keen News Service, for alerting me to an adoption story I missed last month. The Department of Health and Human Services (HHS) issued a memo urging child welfare agencies to better serve the needs of LGBTQ youth. As Rudolph describes in this story, HHS administrator Bryan Samuels also said that “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

Same-sex couples and LGBT individuals who want to become adoptive parents have fewer opportunities of adopting from overseas than were available previously. That's not about being gay; it's about the overall decrease in international adoptions. Last year international adoptions were down 50% from the all-time high in 2004. Last year's total was the lowest since 1994. (Read some of the statistics here.) As this post points out, fewer is better if the larger numbers resulted from corruption and baby stealing. In March, Ethiopia, which had had a rising number of overseas adoptions, announced a massive slow down in the processing of international adoptions because of the problems there.

Finally, if you were not aware of the Christian evangelical international adoption crusade -- folks who do far worse than just cut corners to "rescue" children for God --, you won't want to miss Kathryn Joyce's chilling piece in last week's Nation magazine. These people are pushing for increases in international adoption, including advocating legislation that would give financial incentives to developing countries that cooperate in sending their children for adoption to the United States. Because of the drastic decrease in international adoptions, there is a danger that secular agencies will join with these Christian evangelicals. Joyce reports that the Christian adoption crusade has friends on Capitol Hill poised to introduced legislation that might look benign but is actually designed to foster practices that are unethical -- except in the minds of those who proclaim, as Joyce reports, that they are following God's law, not man's laws.

A common anti-gay trope is that our desire for children is adult-centered, not child-centered, and that we want to recruit. I have never read anything about adopting children that was less child-centered and more about recruiting than this terrifying piece of investigative journalism.

Arizona couple and their twelve children get seven-page spread in Phoenix newspaper

2011-05-03T14:10:00.007-04:00

This is a story that must be read, about Roger and Steven Ham, a gay male couple in Arizona (Roger changed his last name to Steven's in 2007, and all the children have the same last name), and their 12 adopted children. That's right, 12. First there was one child, who missed his four younger siblings. The five had been split into three foster homes when they were taken from their mother. Sibling groups are almost impossible to place in foster homes or with adoptive parents. Roger and Steven took all five. Then they took the children's 11 year old cousin. Then, as foster parents, they took any child the caseworker placed in their home (42 over 10 years -- some arriving with no notice), and eventually they adopted six more children, some with special needs. Roger is the youngest of 12 siblings; Steven the youngest of 14.

The Arizona Republic ran a seven-page spread about the family this past Sunday. I'm sure I have never read a more glowing review of foster/adoptive parents. Even Gov. Jan Brewer thought they were outstanding when she signed an award they received from the Arizona Association for Foster and Adoptive Parents in 2009. The award commended them for their secure and loving home, and for working so hard to keep siblings together.

But that didn't stop Brewer from signing into law last month a preference for placing children with married parents, a topic I posted about here.

The article points out that in Arizona only one of the men can be the children's legal parent. That's Steven. Two of the twelve were adopted from the Washington state foster care system, and both men are legal parents of those two. Roger is a school bus driver and the family's primary breadwinner. If he dies or becomes disabled while the children are minors, only the two who are legally his will get Social Security child benefits. Although the couple has signed all the legal documents they could, the lack of legal parentage leaves the children vulnerable in numerous situations. Nothing makes less sense.

I have to commend the Arizona Republic for running this story and giving it prominence. If it doesn't change some hearts and minds, I'd be surprised. I'll also be surprised if you can get through the whole article without tears in your eyes.

British gay activists urge both marriage for same-sex couples and civil partnerships for different-sex couples

2011-04-26T14:22:00.008-04:00

Gay activists in Britain are urging William and Kate to announce their support for marriage for same-sex couples. But at the same time they are advocating access to civil partnership for different-sex couples. At the moment, only same-sex couples can enter civil partnerships. Truncated news coverage has described the marriage equality plea without noting that advocates also back different-sex civil partnerships.

Although recent civil union legislation in Illinois and Hawaii both allow access for different-sex partners, Delaware's bill, which awaits the governor's signature, extends civil union status to same-sex couples only. Newspaper coverage noted than an effort to add different-sex couples was seen as an attempt to "undermine" the bill. That's a way of thinking that I do not follow. What civil union for different-sex couples undermines is the preservation of marriage as the one and only way straight people can announce their commitment. We are more likely to get to a greater recognition of the many ways that people form relationships that matter if we knock marriage off its pedestal. Given straight people options other than marriage is one step in that direction.

FBI arrests Timothy David Miller for aiding in the international kidnapping of Isabella Miller-Jenkins

2011-04-22T09:58:00.004-04:00

The FBI has arrested Timothy David Miller for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller. (For background on the long-running litigation between Lisa, who became an evangelical Christian, and her former civil union partner, Janet Jenkins, declared Isabella's parent by the courts in Vermont, click here and scroll down to earlier posts). Lisa and Isabella appear to be in Nicaragua.

Gay and Lesbian Advocates and Defenders (GLAD), which has represented Janet Jenkins in the Vermont Supreme Court proceedings in this case, released a statement this morning.

A criminal complaint against Lisa Miller for international kidnapping was lodged on April 27, 2010, after the FBI learned that Lisa had crossed into Canada via the Rainbow Bridge at Buffalo, NY, with another passenger, thought to be a minor, on September 22, 2009. Just to put that date in context, Lisa failed to comply with numerous court orders awarding Janet visitation with Isabella. She did not appear at a Vermont hearing on August 21, 2009, concerning Janet's motion for custody of Isabella. The court ruled on November 20, 2009, that Lisa should surrender custody of Isabella to Janet on January 1, 2010. It is now clear Lisa and Isabella left the country after the hearing and before the court's ruling. Lisa's lawyers unsuccessfully appealed the transfer of custody and unsuccessfully sought review by the US Supreme Court.

The affidavit in support of the criminal complaint against Timothy Miller (no relationship to Lisa Miller has been established), which was issued on April 1, 2011, reveals that the FBI determined that Lisa and Isabella flew from Toronto to Managua, Nicaragua (via Mexico City and San Salvador) on September 22-23, 2009. Search warrants for Timothy Miller's email and phone records revealed that he is associated with Christian Aid Ministries (CAM) in Managua, and that he was involved in planning for Lisa to "escape" to Nicaragua, including approving the travel itinerary for Lisa and Isabella. The airfare was paid by a credit card in the name of Elaine and Jesse Cooper. The affidavit says that Elaine Cooper is the mother of Joanna Miller, Timothy's wife.

Lisa Miller was represented by Liberty Counsel, specifically Rena Lindevaldsen. Although Liberty Counsel lawyers informed the Vermont court that they did not know where their client was, the FBI affidavit establishes a connection between Liberty School of Law, where Lindevaldsen teaches, and Lisa Miller's presence in Nicaragua. The father of Victoria Hyden, an administrative assistant at Liberty School of Law, owns a home in Nicaragua. His name is Philip Zodhiates and he is connected to an entity that describes itself as a source of mailing lists for conservative and Chirstian mailers and telemarketers. One of Janet Jenkins's lawyers notified the FBI of a telephone call in June 2010 reporting that Zodhiates had asked Hyden to disseminate a request for supplies for Lisa.

Timothy Miller's emails contained a strand of communication between Zodhiates and another man named John Collmus concerning delivery of personal belongings for "Sarah" (believed by the FBI to be the code name for Lisa Miller) to Nicaragua. The emails said that Timothy Miller would meet Collmus at the airport in Managua and identified "Sarah" as working with Christian Aid Ministries in Managua.

You can read the criminal complaints and affidavits against both Timothy Miller and Lisa Miller here. Timothy Miller will be arraigned in Vermont on Monday.

The FBI has done a great job so far. I hope it continues to investigate any involvement of Liberty Counsel, anyone associated with Lisa's lawyers, and any other connections to right-wing Evangelical organizations. It's hard to take the moral high ground while actively disobeying the rule of law, and certainly any lawyer who aided -- or asked others to aid -- Lisa Miller in any way should face severe professional sanctions as well as criminal prosecution.

European Court of Human Rights hears appeal of lesbian couple denied second-parent adoption in France

2011-04-21T21:44:00.024-04:00

A French lesbian couple, denied a second-parent adoption of the daughter born to one of them using donor insemination, has taken their case to the European Court of Human Rights (ECHR). The couple, Nathalie Dubois and Valerie Gas, began living together in 1989, and their daughter, Alexandra, was born in 2000. Alexandra was conceived in Belgium because assisted reproduction is not available to a lesbian couple in France. The hearing before the ECHR last week is available (with simultaneous English translation) on line.

The European Convention on Human Rights prohibits discrimination under Article 8 and protects family life under Article 14. The two articles together have been the basis for previous challenges. In 2008, the ECHR, in E.B. v. France, ruled in favor of a single lesbian who had been denied the ability to adopt because of her sexual orientation.

Arguing on behalf of the couple, attorney Caroline Mecary presented numerous legal consequences denied Alexandra because Valerie could not adopt her. She contrasted Alexandra's position to that which would be available had her mother had a male, rather than a female, partner. Under French law, an unmarried different-sex couple can both be the parents of a child born to the woman using donor insemination. (European countries, in general, are more likely than the US to treat unmarried and married heterosexual couples equally). Furthermore, French courts do recognize second-parent adoptions granted in other countries.

The attorney for the French government argued that the European Convention on Human Rights does not grant a right to adopt. She tried to reassure the court that Alexandra would be protected under various other French laws, including the fact that Valerie will be allowed to adopt once Alexandra becomes an adult, as French law allows adult adoption that adds a parent for a child.

She argued for distinguishing the E.B. ruling, but then never said how it could be distinguished. She also argued that marriage is the most protective environment for raising children. Lest we think that groups opposing gay and lesbian parenting exist only in the United States, an organization called the European Centre for Law and Justice, affiliated with its American counterpart, commented in a press release that this case is "the latest in a long series of attempts to attack the European common heritage, by introducing new anthropological, moral and social views." Some of France's arguments track precisely arguments here against same-sex marriage, notwithstanding the fact that this case concerns parentage not marriage.

Rob Wintemute, law professor at King's College, University of London, presented argument on behalf of the European region of International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and other organizations. He presented the ECHR information on the many countries/states that do permit a child to have two parents of the same sex. Most eloquently, he began his remarks as follows: "The strongest and most persistent prejudice against the lesbian and gay minority in Europe, is that they represent a threat to the welfare of children." He also urged the court not to adhere to a rigid one-mother/one-father model of family life.

The judges of the ECHR do not ask questions during argument but do ask them after all the lawyers complete argument. (The judges ask all their questions at once and then the lawyers respond.)

New Arizona adoption statute prefers married heterosexual parents

2011-04-20T08:48:00.004-04:00

Leave it to the Arizona legislature to enact another bad piece of legislation that reflects extreme right wing views. On Monday, Gov. Jan Brewer signed SB 1188 which creates a preference that a child be adopted by "a married man and woman." The act applies to anyone licensed to place children for adoption.

A single individual can be an adoptive parent if one of the following conditions exists: a married couple is not available; the single person is the child's legal relative; the child would otherwise be in extended foster care; there is an established "meaningful and healthy relationship" between the child and the single person; the birth parent(s) places the child with the single person; or the child's best interests require adoption by the single person.

This is different from other adoption statutes. Most statutes are silent about marital status and base adoption on a child's best interests. The Arkansas statute struck down recently (see my post here), as well as the one in place in Utah, ban adoption by a single individual living with an unmarried partner. Arizona's new statute is less restrictive than that because it is not an outright ban on such an adoption. On the other hand, with a preference for a married couple in every case, there is no telling how that will impact a lesbian or gay man -- or a single heterosexual -- seeking to adopt a child. It does suggest that if an agency has a married couple approved to adopt -- or even in the pipeline -- they must choose such a placement over anyone else. It may mean that married heterosexuals get their choice of child while an unmarried person gets the children such couples reject.

The exceptions to the married couple preference show a somewhat sophisticated understanding of the common circumstances cited by opponents of adoption restrictions, such as a birth parent's choice or a person with an established relationship with the child. And since best interests itself can be the basis for an exception, there is enough flexibility to permit placements to continue. The statute requires the judge to make written best interests findings for every adoption. It remains to be seen whether judges will require some proof of the unavailability of a married couple unless one of the enumerated exceptions other than best interests applies.

One more thing: The consistent use of "single person" in contrast to a married couple makes clear that two unmarried persons cannot adopt together. So much for the best interests of children.

Tennessee adoption ruling bodes ill for same-sex couple second parent adoption

2011-04-19T10:36:00.010-04:00

Court rulings that affect same-sex couples raising children often come in the context of heterosexual families. When you think about it, that's inevitable, since there are so many more heterosexuals and they, too, live in a variety of family forms. Well, a decision from the Tennessee Court of Appeals last month, In re Shleby L.B., falls into this category, and the news is not good. (For a Colorado ruling involving heterosexuals that bodes very well for same-sex couples there, read this post from last April).

A child, Shelby L.B., was born to a married heterosexual couple in 1999. When the couple divorced two years later, the child went with her mother and the father had no visitation rights but could petition for them in the future after completing alcohol and drug rehab. The mother later became friends with a 42-year-old man, J.E.N, who began acting as a father to the child when she was five years old. In 2008, the mother and J.E.N. filed a joint petition to terminate the parental rights of the father and allow J.E.N. to adopt the child. The petition alleged that the child called J.E.N., "Dad," and that he supported her financially and spent a substantial amount of time with her forming a parent-child bond. Shortly thereafter, the mother and J.E.N. filed an amended complaint including the fact that J.E.N. had exercised physical custody of the child for substantial times and that the child was presently living with him during the school week. There is no indication that the mother and J.E.N. ever lived together or that they had a romantic relationship.

The father hired a lawyer, opposed the petition, and asked for visitation with the child. Subsequently, he filed a motion to dismiss the petition, arguing that the parental rights of both parents must be terminated before anyone other than a stepparent can adopt a child. The trial court ruled in the father's favor, and the Court of Appeals affirmed.

Here are the Tennessee laws that doomed the petition filed in this case. A biological parent cannot file a petition to terminate the rights of another parent, so the mother could not file to terminate the father's rights. That left J.E.N. He could file an adoption petition, but according to the court's interpretation of the Tennessee statute, he could only do so if he were seeking to terminate the rights of the mother as well as the father. The only exception in the statute is for a stepparent adoption, and since the mother and J.E.N. were not married, he was not the child's stepparent.

This ruling likely dooms any second parent adoption. That's because, of course, the biological parent seeks to retain, not surrender, her parental rights when her partner adopts. The only remaining possibility might be a joint petition by a same-sex couple in which the bio mom gives up her rights as a bio parent but simultaneously gets them back as an adoptive parent. A single person may adopt in Tennessee, but it is not certain that the court would say this means two single persons may adopt together.

I wish we knew more about these people. I am curious about the relationship between the mother and J.E.N. There are plenty of examples of LGBT co-parenting arrangements between other than romantic partners. Since adoption requires individualized assessment of a child's best interests, I believe these arrangements should be able to be formalized through adoption. Plus I realize that I cannot even be certain the adults in this case are heterosexual. I know the mother was once married to a man, and I know there is nothing about her sexual orientation that is reported in the opinion, but it's not impossible that her friendship with J.E.N. is not sexual because one or both of them is gay. (It is also possible the two have a sexual relationship; all we know is that they are not married to each other and they appear not to live together). So I am curious, but in the end the issue should be whether the adoption is in the child's best interests, and that is what the court refuses to address because it says such an adoption is impossible.

This case is also a reminder that when we lose second-parent adoption it is not inherently an anti-gay ruling; it may simply be a narrow reading of an adoption statute. Since adoption customarily does terminate the rights of the existing parents, statutes were written in a way that produces that result automatically. When a court reads such a statute to prohibit a parent retaining rights while adding a second parent, that may simply be reluctance to construe a statute beyond its literal wording. Of course many state courts have read their adoption statutes broadly enough to encompass second parent adoption without terminating the first parent's rights. Thank goodness for that.

Illinois rejects adoption restrictions

2011-04-15T14:25:00.003-04:00

It's become commonplace for religiously affiliated adoption agencies to object to same-sex marriage or civil union bills on the ground that they will be forced to place children in homes with same-sex couples. Of course, if you ask them whether they will support same-sex marriage or civil union if they receive an exemption for adoption placements, they will still say "no." So, really, it becomes a disingenuous way to fight recognition of same-sex couples.

With Illinois about to allow civil unions, such agencies attempted to obtain legislation permitting them to decline to place children with a person in a civil union. Earlier this week, the bill failed in committee by one vote. The Illinois ACLU took the lead in opposing the bill. Its position paper against the bill is very forceful. Read it here. It points out that there is no child welfare basis for such a law and that it amounts to unconstitutional discrimination. One of its other arguments, which I love, is that such a law would send a "cruel and harmful message to gay and lesbian foster children: When you grow up, the agency that provides your care, would never let you take care of other kids."

Almost 15 years ago I wrote an article about the benefit to gay and lesbian children in foster care of openly licensing gay and lesbian foster parents. I don't usually hear that argument made in the political context. Kudos to the Illinois ACLU for making it here.

Adar v. Smith continued...why two gay dads still have no birth certificate for their son

2011-04-13T23:41:00.012-04:00

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarried biological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

Fifth Circuit en banc ruling in Adar v. Smith denies birth certificate to child adopted by two men

2011-04-12T23:07:00.003-04:00

Late today, the Fifth Circuit Court of Appeals issued an en banc ruling in Adar v. Smith. As I noted in several earlier posts about this case, Oren Adar and Mickey Smith jointly adopted a child in New York. The child was born in Louisiana, and the couple sought an amended birth certificate listing both of them as parents. Louisiana refused to issue the birth certificate, citing its own law prohibiting an unmarried couple from jointly adopting a child. The couple is represented by Lambda Legal, whose senior staff attorney Ken Upton argued the case in January. The couple won in the trial court and in a Fifth Circuit panel opinion. This loss comes after rehearing by the entire Fifth Circuit.

Tomorrow I will write more about the court's ruling that the couple could not sue the state for violating the Full Faith and Credit Clause. Tonight I will just note that the court ruled against the argument that the state is denying the child equal protection of the law by refusing to issue a birth certificate based on the marital status of his parents.

Citing the despicable 11th Circuit Lofton ruling upholding Florida's ban on adoption by gay men and lesbians, the majority said that Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." It then cited one 2002 report for the principle that marriage is associated with better child outcomes than cohabitation because it is more likely to provide stability. Because this provides a rational basis for denying unmarried couples the opportunity to adopt, it therefore is sufficient support for denying a child adopted by an unmarried couple a birth certificate with two names. Both the logic and the sentiment here are appalling. This reasoning (or lack thereof) stands in sharp contrast to that of the Arkansas Supreme Court, which just last week ruled that the state's ban on adoption by anyone living with an unmarried partner was unconstitutional. The Adar v. Smith Fifth Circuit ruling also dismissed almost out of hand the argument that the state is violating the constitutional prohibition on discrimination against nonmarital children by denying a child with unmarried parents a birth certificate reflecting his legal parentage -- something granted routinely to children with married parents.

There's a strong dissent. And there is a contrary case from the 10th circuit five years ago, also argued by Lambda Legal. I hope Lambda asks for review by the US Supreme Court. The "circuit split" raises the odds that the Court would hear the case.

Arkansas Supreme Court strikes down adoption and foster parenting ban

2011-04-07T20:24:00.015-04:00

As I predicted after watching the oral argument, the Arkansas Supreme Court today struck down Act 1, the initative banning anyone living with an unmarried partner from being a foster or adoptive parent. There was no dissent in the case, Arkansas Dept. of Human Services v. Cole. The court held that the ban violates the fundamental right of the plaintiffs to sexual intimacy in their home.

Because the ban burdens a fundamental right, it could survive only if the state could show a compelling interest and that the ban was the "least restrictive method" of achieving that state interest. Protecting the best interests of children is, of course, a compelling state interest. The court noted that Act 1 says that "the people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." But, the court noted, numerous employees of the state's child welfare agency, including the John Selig, director of the Department of Human Services, testified that the categorical ban was not in the best interests of children. Selig also testified that "it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home."

The ruling notes that all the arguments for a categorical ban based on generalizations about cohabiting couples could be addressed through the individual screening process to which all foster and adoptive parents are subject. "We have no doubt," the court stated, "that this individual assessment process is a thorough and effective means to screen out unsuitable applicants." You may recall from my earlier post that the lawyers for both the state and Family Council Action Committee argued that the categorical ban was necessary because the screening process makes mistakes. Really. Bet the state social workers loved that one...

The court's faith in the screening process allowed it to differentiate a 2005 custody case between two parents in which the court had stated that extramarital cohabitation is not condoned, does not promote stability for children, and can be a basis for changing custody. A nonmarital partner in a custody case, the court noted, is a "third party stranger" who has not gone through the rigorous screening applicable in the adoption or foster parent setting. Although I get the court's point, and it works to distinguish the prior case, custody cases are also handled individually by a trial judge determining a child's best interests. I'm disturbed that a parent's nonmarital sexual relationship could result in a change in custody. It's true this factor is not a categorical ban to post-divorce custody, but I would have been happier if the court had just said that custody cases are scrutinized individually and so adoption/foster parenting situations should be handled in the same way.

A few other thoughts. The court found a fundamental right to have a sexual relationship. I love that. It found that denying someone the opportunity to adopt or foster a child for that reason burdened the exercise of that fundamental right. I love that too. But because this triggered "strict scrutiny," the court did not have to decide if the ban would survive the rational basis test. The lower court essentially said the ban was rationally related to achieving the best interests of children but that the state could not meet the higher burden of showing that the ban was necessary. So although I love this articulation of a fundamental right, it should have been unnecessary. The ban should fail the rational basis test. Individual screening means a categorical ban does not serve the interests of children. Period.

Issues related to lesbians and gay men raising children, and unmarried heterosexual couples as well, are ill suited to the ballot box, or even the legislature. The political process allows gross misstatements to reverberate unchecked. It allows prejudice, stereotype, myth, and fear to substitute for reason. In spite of many notable defeats, lesbian and gay parents have fared better in court. Judges care about the well-being of the individual children in front of them. Courts must give real reasons for their rulings. True, state and federal courts upheld the Florida gay adoption ban for decades, and lesbian and gay parents have been denied custody of their children. But lesbian mothers also won custody in some courts 40 years ago, and second-parent adoptions began almost 30 years ago because judges wanted to do right by children. The Arkansas Supreme Court opinion is in that vein.

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

2011-04-06T12:34:00.009-04:00

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

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

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

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

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

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

Lesbian couple's marriage changes nothing about their ownership of previoiusly purchased property...and a thought about marital name changes

2011-04-01T09:58:00.007-04:00

An otherwise unremarkable ruling from a New York trial court last month highlights a circumstance bound to impact many same-sex couples in the future. Jane Taylor and Diane Taylor (see my comment below about their names)bought a home as tenants in common in July 2008. A tenancy in common means each person owns her own share, the shares need not be equal, either owner can sell her share through a court action known as partition, and if one dies the other does not inherit the property.

They married in Connecticut a few months later, and before that they wrote a "pre-nup" agreeing that their separately owned property from before the marriage would remain separate and the home they bought would, if sold, result in each person getting what she put into the home with the profit divided equally.

When they split up last year, Jane filed a partition action. Diane tried to stop the action, claiming that division of the property could only take place as part of a divorce. She lost because the property was purchased before the marriage and therefore not a marital asset.

This last point is the one that matters. This couple jointly owned the home before their marriage. But what this case illustrates is that if one person buys a home and then later marries the home is not a marital asset. No matter how long the couple lives in the home, its value will not be divided upon divorce according to "equitable distribution" principles. Of course if the non-owning spouse put money into improving the value of the home there may be a property claim, and if there is a contract there may be a breach of contract claim, but those are very different from equitably dividing assets at divorce.

Given that same-sex couples are marrying now, often after having been together for many years, this could work a real hardship on the person whose name is not on the deed to the house. The rule applies equally to heterosexual couples, but since marriage has only recently become available to same-sex couples, many of those couples will have lived together for a long time before marrying.

This illustrates the arbitrariness of the rule that rigidly divides property into "marital" and "nonmarital" and allows division of only the former, yet that is the rule in the vast majority of states. Washington state is an exception. The courts there treat couples who live together without marrying the same as married couples when it comes to the accumulation and division of community property. I like that rule.

But there is another way to achieve a similar result for a couple who does, ultimately, marry. A few states look at all the property owned separately or together by the two spouses and allow divison of all of it according to equitable principles. This is called the "hotchpot" approach. The current version of the Uniform Marriage and Divorce Act contains this approach, but few states have adopted it. Most maintain a rigid distinction and do not allow a judge to allocate the pre-marital property of one spouse to the other.

We are seeing only the tip of the iceberg of divorces of same-sex couples, but I predict this issue will loom large. Even if some judges will be persuaded that they can divide the family home even if it is titled in the name of only one spouse and was purchased before they married, that will not help the couples who do not marry. For them, the rule in Washington state is the only fair answer, but I don't see the law moving in that direction.

Meanwhile, about their names. Each spouse has a "formerly known as" and a different name listed in the caption of the case. So it looks like they both changed their names to a common name at some point. I hope someone is studying whether there are distinct characteristics of same-sex couples who do this. The tradition of a wife assuming the name of her husband once served as a visible expression of her loss of identity in marriage. A couple who takes an entirely new name obviously is not making this statement, but is still saying something about their desire to be seen as a unit.

This issue surfaced in South Dakota in the last couple of months, with lesbians married in Iowa unable to use their marriage certificates as a basis for a name change on their drivers' licenses because the state does not recognize same-sex marriage. The ACLU represented a couple, Jessica Dybing and Andrea Jorgenson, denied the ability to get new licenses in their hyphenated name; in the other instance, one woman, Amy Muston, wanted to adopt the last name of her spouse, Ashley Stabe. The women were granted the name changes by a judge last month, in a routine name-change proceeding. Generally, a judge will grant any name change petition as long as the reason for the change is not fraudulent. Of course this still does not answer my question about why two women feel they need the same last name.

Marquette University to offer domestic partner benefits...to those who register with the state in a registry that is the subject of court challenge.

2011-03-29T16:04:00.010-04:00

Going on two years ago, Wisconsin adopted a domestic partner registry in spite of the fact that it has a "super-DOMA" constitutional amendment. Almost immediately, the registry was challenged as unconstitutional, as I wrote about here. Well, the past week has seen two items of related news.

The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.

Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.

While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.

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

2011-03-22T21:17:00.003-04:00

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

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

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

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

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

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

Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children

2011-03-17T11:11:00.016-04:00

It's always risky to predict the outcome of a case based on oral argument. Nonetheless, I'll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state's ban on adoption and fostering by anyone living with a nonmarital partner violates the state's constitution. The ban was enacted by voters in 2008. You can watch the argument on the court's website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.

Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.

If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.

When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.

In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.

So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.

The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.

One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.

And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.

Arkansas adoption ban oral argument tomorrow morning -- watch it live

2011-03-16T13:50:00.002-04:00

The Arkansas Supreme Court hears oral argument tomorrow at 8:58 am CDT in Arkansas Dept of Human Services v. Cole, the ACLU's challenge to the constitutionality of the initiative enacted by voters in 2008 prohibiting adoption by anyone living with a nonmarital partner. It will stream here. For background on the case, check out the ACLU website. For one analysis of what went wrong in the election campaign, read this.

I'll post about it later in the day tomorrow.

Health benefits for family of Michigan state workers in doubt

2011-03-16T12:46:00.002-04:00

Last month I lauded the recently granted "plus one" benefit scheme implemented for 35,000 Michigan state employees. Well, those benefits are in grave danger. The state senate has already overturned the decision to award these benefits. My thanks to the Alternatives to Marriage Project for alerting me to this grave situation. ATMP is urging everyone to contact the Michigan House before it's too late. No one is surprised that Gov. Rick Snyder takes a decidedly different approach than that of his predecessor, Jennifer Granholm. Let's hope he can be stopped.

Delaware Supreme Court upholds de facto parent statute and upholds joint custody award

2011-03-15T09:37:00.015-04:00

Two years ago, in an opinion I criticized extensively, the Delaware Supreme Court ruled that a woman whose partner was a child's only legal parent (through adoption) lacked standing to obtain custody or visitation when the couple split up. In response to that decision, the Delaware legislature amended its definition of "parent" to include de facto parents, a move I praised as extensively as I had criticized the previous court ruling.

A de facto parent in Delaware is one who:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child [as defined elsewhere to include meeting the child's physical, mental, and emotional needs]; and
(3) Has acted in a parental role for a length of time sufficient to haveestablished a bonded and dependent relationship with the child that is parental in nature.

The legislature made the amendment retroactive so that the mother whose loss prompted the statutory reform could refile for custody, which she did. The trial court ruled earlier this year that Carol Guest (a pseudonym) was the de facto parent of the child, A.N.S, and it awarded her joint custody. The adoptive mother, Lynn Smith (also a pseudonym), appealed.

In a ruling released this morning under the name Smith v. Guest, the Delaware Supreme Court upheld the joint custody award. Smith had appealed on several grounds and lost on all of them. Of greatest significance, she challenged the constitutionality of the statute, alleging that it violated her right to raise her child as set out in the US Supreme Court case of Troxel v. Granville. The Delaware court got it exactly right when it disposed of Smith's argument as follows:

The issue here is not whether the Family Court has infringed Smith’s fundamental parental right to control who has access to ANS by awarding Guest co-equal parental status. Rather, the issue is whether Guest is a legal “parent” of ANS who would also have parental rights to ANS—rights that are co-equal to Smith’s. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child’s grandparents) seeks visitation rights. Guest is not “any third party.” Rather, she is a (claimed) de facto parent who (if her claim is established, as the Family Court found it was) would also be a legal “parent” of ANS. Because Guest, as a legal parent, would have a co-equal “fundamental parental interest” in raising ANS, allowing Guest to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe Smith’s due process rights. In short, Smith’s due process claim fails for lack of a valid premise.

I could not have said it better myself. I hope this reasoning resonates throughout the country and provides an alternate narrative to the one that has prevailed in some states that take a cramped view -- and certainly not a child's view -- of what makes a parent.

Film chronicles the birth of a group just for children with gay parents

2011-03-11T14:40:00.005-05:00

COLAGE, the organization for "people with a lesbian gay bisexual transgender or queer parent," now has a staff of eight. But the film Family Time, which you can watch on the COLAGE website, chronicles the history of the group and shows that its founders did not even know eight people with an LGBTQ parent when they were growing up.

The film shows how the fight for marriage equality made children with gay parents more visible than ever. Happily, from my point of view, the group values all family forms, and its 2004 newsletter focusing on marriage contains many voices on the subject.

The group also has a larger social justice mission. Yesterday its website posted "5 Reasons We Stand For Workers' Rights." Awesome.

Watch the film and marvel.

MD Delegate Tiffany Alston had a good idea for a bad reason

2011-03-06T20:51:00.006-05:00

When I first heard that Maryland Delegate Tiffany Alston wanted to replace marriage with civil unions for all I was hopeful she had a principled reason and that it was an idea that might catch on. I'm still waiting for a state to change the name of the status it grants couples, leaving "marriage" as a religious term or a generic term couples use for themselves. But it soon became clear Del. Alston was not really looking for a way to get the state out of the marriage business. She was just looking for a way to avoid voting for same-sex marriage.

I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.

So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.

Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.

Who are the parents of Viva Katherine Wainwright Cohen?

2011-03-01T14:12:00.012-05:00

Viva Katherine Wainwright Cohen (d.o.b. 2/2/11) is the heir to folk music royalty. As the granddaughter of Loudon Wainwright III, Kate McGarrigle, and Leonard Cohen, she starts off life with songs -- and poetry -- in her blood. (By the way, I'm old enough to think of Rufus as the son of Loudon, rather than Loudon as the father of Rufus. As a folk music DJ in the early 1970's, I came of age listening to Loudon's early albums).

But who are her parents?

The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."

But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.

Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.

California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.

I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.

The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).

To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.

Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about

2011-02-24T16:02:00.004-05:00

The New York Supreme Court Appellate Division, First Department, ruled today that the marriage between a decedent and his surviving partner in Canada is entitled to be recognized in New York. (To read the opinion, In re Estate of Ranftle, you need to click here and scroll down to page 8). The couple, J. Craig Leiby and H. Kenneth Ranftle, married in Canada in June 2008, and in August 2008, Ranftle wrote a will. After Ranftle died, Leiby sought to probate the will as his surviving spouse and was opposed by the decedent's brother. The trial court found the marriage subject to recognition in New York, and in this opinion the appeals court affirms.

This opinion is a timely reminder of what yeseterday's Obama administration announcement does not mean. DOJ will no longer defend the constitutionality of DOMA Section 3, the section that denies federal recognition to validly married same-sex couples. Section 2 of DOMA says that states are not required to recognize same-sex marriages from elsewhere. The DOJ announcement is silent on Section 2, because it is not an issue in the pending cases that prompted the DOJ announcement.

Any family law scholar will tell you that DOMA Section 2 was unnecessary, because the rule of law even without it is that a marriage valid where performed will be recognized in a state unless it violates the strong public policy of the state.

In the Rantfle case, the opinion simply recites that rule, notes that New York does not have a specific statute (as the vast majority of states do) refusing to recognizing same-sex marriages from elsewhere, and then concludes that it is not against "natural law" to recognize such marriages. Short and sweet.

In states with statutes refusing recognition to same-sex marriages from elsewhere (here is a chart), a court would not treat Leiby as Ranftle's surviving spouse. Nothing in yesterday's DOJ announcement changes that. At some point there will be a constitutional challenge to such non-recognition. One way the United States could be a party is that a couple could marry, go home to a state that does not recognize them, and then try to get some federal benefit. The federal government goes by state law to determine if you are married, and the couple could claim that by not treating them as married the state they live in is violating the constitution. The administration would have to take some stand on the matter.

But it's more likely that the couple will seek some recognition in their state, in which case the United States won't be a party at all, and we would expect most state courts to uphold the state DOMA. All this will be interesting litigation to come. Meanwhile, New Yorker get one more piece of support for the validity of the marriages they enter outside New York.

Obama administration will no longer defend section 3 of DOMA...what now?

2011-02-23T12:58:00.007-05:00

The Justice Department has just announced that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). That's the section that defines a married couple for federal law purposes as a man and a woman. The announcement comes in the context of cases pending in the Second US Circuit Court of Appeals brought by GLAD and the ACLU.

Nothing will change right away. The administration will continue to enforce DOMA as written. And it will do everything possible to facilitate the ability of Members of Congress to enter the litigation for the purpose of defending the statute. I am certain they will do so. The administration will wait until a final judicial ruling in the cases (or repeal by Congress) to change its approach to married same-sex couples.

The reasoning behind the decision is as important as the decision itself. DOJ and the President have concluded that sexual orientation should be considered a "suspect classification" under the Equal Protection Clause of the Constitution. That means that all distinctions between gay and straight people would have to be justified as "necessary" to achieve a "compelling state interest." (That's hard to do.) But the US Supreme Court has the final word on Equal Protection analysis, and NYU law prof Kenji Yoshino has a recent article in the Harvard Law Review explaining why the Court is unlikely to expand at all the list of groups entitled to suspect class status.

DOJ released its statement as I was putting the final touches on a short commentary I've written as part of a colloquium of the Harvard Civil Rights-Civil Liberties Law Review centered around a piece by Northeastern law prof Libby Adler critiquing the "equal rights" framework for its limitations in meeting the needs of LGBT people. My commentary focuses specifically on the DOMA litigation that is the subject of this DOJ opinion. (How timely of me!)

Basically, I explain that treating married same-sex couples as married under federal law will help some couples but it will hurt others. That's because not all marriages are equal under federal law. Marriages that are based on the single breadwinner, stay-at-home mom model make out like bandits. They pay less in federal income tax and they get much more in social security benefits than marriages in which the two spouses are closer-to-equal earners. In fact, with respect to social security, all of us, including equal earning spouses, heavily subsidize the white family form of 1939 that lawmakers had in mind when they created social security spousal benefits. Eliminate DOMA and all of us, including same-sex married couples with two close-to-equal earning spouses, will continue to subsidize that 1939 model; but now the model will encompass same-sex couples with one high income earner. The close-to-equal earners will also get socked with the marriage penalty when they pay their income taxes; the traditionally gendered model will get a huge marriage bonus.

I understand that this is the consequence of an equal rights framework. Same-sex married couples get what different-sex married couples have. That doesn't make it just. Imagine a world in which our tax and benefit structure did not privilege single high wage earner married couples. Apparently that is harder to achieve than federal recognition of same-sex marriages. But if we care about real world impact on the lives of lesbians and gay men, we should be looking for justice, since most of us are not married couples with a single high wage earner.

There will be much rejoicing today. From a gay civil rights perspective there's much to be happy about. But economic justice and fair family policies are another matter, and I won't throw a victory party til we have those.

Gov. Abercrombie to sign civil union bill at 7pm Eastern tonight; different-sex couples included

2011-02-23T10:07:00.007-05:00

The modern era of the movement for access to marriage for same-sex couples began in Hawaii in 1993. Of that there is no doubt. That year the Hawaii Supreme Court ruled that the state's ban on same-sex marriage was unconstitutional sex discrimination under the Hawaii state constitution. The court sent the case back to the trial court and instructed the state to justify the exclusion by proving that it was "necessary" to protect a "compelling state interest." Although the people of Hawaii cut short the process begun by that court ruling by passing a constitutional amendment, the ruling served the purpose of demonstrating that is was possible to bring a court challenge and succeed. The rest is history, and of course it is history still in the making.

Well today Hawaii Governor Neil Abercrombie signs a bill creating civil unions. The status confers all the state based consequences of marriage. Both same-sex and different-sex couples can enter civil unions. You can watch the signing live, at 7 pm Eastern time, here. Lambda Legal has prepared a terrific explanation of the new law which you can read here.

The most recent three states to create such a comprehensive status are Hawaii, Illinois (civil union - 2011), and Nevada (domestic partnership - 2009). All three are open to different-sex couples. I hope this marks a trend that will continue. California and Washington allow different-sex couples to enter domestic partnerships if one person is at least 62 years old. (When a divorced person who was married more than 10 years turns 62, that person becomes eligible for social security based on the work record of his or her ex-spouse. Remarriage destroys that eligibility, but domestic partnership or civil union status does not.)

I hope that someday the official name of the civil status that all couples can choose will be something other than marriage. (I describe my views in more detail here.) I like civil partnership, but I'll take civil union.

My favorite place in the world is Kauai. I can highly recommend it for those wishing to formalize their relationships in, well, paradise.

Then again the Arkansas nonbio mom ruling falls short...

2011-02-22T16:43:00.004-05:00

I was pretty excited when I wrote last week about Bethany v. Jones, the Arkansas case that recognized the right of a nonbio mom to continued visitation rights with the child she raised. The court relied on the doctrine of in loco parentis, which means that Emily Jones functioned as a parent to the child she raised with her ex-partner.

Then I thought about it a bit more and realized I became too excited too soon. Jones is the child's parent. She planned for the child, raised the child as a stay-at-home mother for three years, and the child called her "mommy." A parent has an equal right to custody and is not relegated to a second class status. The court compared Jones to a stepparent, but she isn't a stepparent. A stepparent does not plan for a child to be born. A child does not bear the last name of a stepparent from birth, yet the child in this case had the last name of Jones. Parentage also protects a child in other ways, such as the right to survivors benefits. This child doesn't get that.

In DC, Jones would have been the child's parent. In California, Jones would have been the child's parent. That the Arkansas case did not turn out as badly as it might have shouldn't blind us to the fact that it falls short of fully recognizing this child's family.

Arkansas Supreme Court approves visitation rights for non-bio mom

2011-02-18T18:29:00.005-05:00

In a 5-2 decision, the Arkansas Supreme Court yesterday affirmed a trial court ruling granting visitation rights to a nonbiological mother The case, Bethany v. Jones, has a familiar fact pattern. Alicia Bethany and Emily Jones had been together for five years when Bethany gave birth to a child that she and Jones planned for together. They gave the child Jones as a last name and also gave her a middle name for Jones's grandmother. (Bethany changed the child's name after the break-up). Jones was the child's primary caretaker as a stay-at-home mother for three years. The child called Jones "mommy" and Bethany "mama." She also called Jones's parents, "Grammy" and "Poppy."

The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.

Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.

Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.

Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)

Ninth Circuit hears case on Arizona domestic partner benefits...but only for same-sex couples who say they would marry

2011-02-14T12:32:00.003-05:00

In 2008, by administrative regulation, Arizona made available to state employees health benefits for their domestic partners, defined by at least a year of living together and a set of criteria demonstrating financial interdependence. Same-sex and different-sex partners were eligible. In August 2009, the Arizona legislature rescinded these benefits through a statute limiting state employee health benefits to spouses. Before the rescission could take effect, Lambda Legal challenged the constitutionality of the legislation, but only on behalf of those state employees with same-sex partners. They won in the District Court, and the Ninth Circuit Court of Appeals hears the state's appeal today, in the case of Collins v Brewer.

This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.

Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.

The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.

It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.

The press will likely report this case the way Lambda is portraying it...as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.

Two moms on Maryland birth certificates...not the victory it might sound like

2011-02-13T19:08:00.006-05:00

Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.

Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.

Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.

And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.

In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.

While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.

If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.

This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.

In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.

Law prof. Art Leonard summarizes 2010 legal developments

2011-02-11T15:48:00.002-05:00

New York Law School professor Art Leonard, founder and editor of Lesbian/Gay Law Notes, has prepared a summary of the major legal developments of 2010 affecting LGBT people, and he has posted it online here. His monthly Law Notes publication is the single best way to keep abreast of the legal news that matters to the lives of LGBT people.

Ohio Supreme Court hears argument in claim by nonbio mom

2011-02-03T12:40:00.006-05:00

Last year about this time I wrote about three cases in which a bio mom was teaming up with the sperm donor to force a nonbio mom out of a child's life. One of those cases, In re L.K.M., was argued yesterday before the Ohio Supreme Court. Lambda Legal represents Michelle Hobbs, and Lambda Senior Staff Attorney Christopher Clark did a terrific job on her behalf. You don't have to take my word for it; you can watch the oral argument here. You can also read all the briefs filed in the case here, something that is rare in state appeals courts. (And so this is where you can see that this case involves yet another bio mom who accepted help from the virulently anti-gay Alliance Defense Fund and Liberty Counsel, each of whom filed a separate friend of court brief on her behalf.)

The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.

Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).

Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.

Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.

Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.

19-year-old son of lesbian couple gives moving testimony in Iowa hearings

2011-02-02T19:59:00.003-05:00

Iowa is holding hearings on same-sex marriage. We know to expect to hear lots of comments about how bad it is for children to be raised by gay or lesbian parents. Well, listen here to the testimony of Zach Wahls, the 19-year-old son of a Iowa lesbian couple. It's a show-stopper.

35,000 Michigan state employees to gain "plus one" health benefits

2011-02-01T15:36:00.006-05:00

Almost three years ago, the Michigan Supreme Court ruled that granting health benefits to same-sex domestic partners of government employees was a violation of the state's "defense of marriage" constitutional amendment approved by the voters in 2004.

Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.

The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.

I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.

I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.

As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.

Illinois civil union law signed today -- more equality yet more injustice

2011-01-31T12:38:00.006-05:00

Illinois will become the 12th jurisdiction in the country to provide formal recognition of same-sex couples in a status that confers the state-based rights and responsibilities of marriage. Governor Quinn signs the bill into law later today, and it becomes effective June 1. (To recap -- marriage is available in Connecticut, DC, Iowa, Massachusetts, New Hampshire, and Vermont; civil union is available in Illinois and New Jersey; domestic partnership is available in California, Nevada, Oregon, and Washington -- and also in DC).

That's good news. And adding to the good news, Illinois joins Nevada and DC in making the status available to all different-sex as well as same-sex couples. (California and Washington include different-sex couples if one partner is 62 or older). The bill's sponsor, Rep. Greg Harris, has said it is wrong to write a law that discriminates. I couldn't agree more.

The law will also treat same-sex couples married elsewhere as members of a civil union in Illinois. This is an important provision. Without it, the state's DOMA might leave such a couple with no legal status. The existence of that DOMA, of course, is its own injustice, as it perpetuates the notion that same-sex couples are not good enough for marriage.

But I've got another complaint with Illinois. The state is shameful in its legal treatment of unmarried couples. Under a dreadful 1979 Illinois Supreme Court ruling, the state will not enforce agreements between unmarried couples or allow one partner to have any claim to property owned by the other. That ruling will remain the law for couples who do not enter civil unions. While only Washington state treats property acquired by unmarried partners as "community" property, allowing for a just distribution when the couple splits up (the result I favor), most states do allow one partner to prevail if s/he can prove that there was an agreement to share assets or provide support. It's hard to prove such an agreement, but Illinois goes the additional step and refuses to enforce such agreements even when they can be proven.

Even worse, Illinois does not allow a nonbio mom to file for custody or visitation rights with the child born to her same-sex partner, even if they planned for and raised the child together as two parents. While it may turn out that civil union partners will both be legal parents of a child born to one of them if a doctor performs the insemination and both civil union partners give written consent, a child whose parents do not enter a civil union will have only one parent and will risk losing that parent if the couple splits up.

These two inequities can be remedied only by additional statutes, and I won't wholeheartedly join the celebration in Illinois until neither marriage nor civil union forms such a bright line between whose families count and whose don't.

Thanks to Chicago lawyer Richard Wilson, for keeping me posted on Illinois developments and sharing my concerns.

Some law reviews are bringing academic thought to the wider (on-line) world; Penn Law Review hosts debate on arguing for marriage

2011-01-26T19:05:00.006-05:00

I've written my share of law review articles. I wouldn't have tenure if I hadn't. And although that is the customary venue for legal scholarship, I've been increasingly frustrated with its limitations. Who reads law reviews? Well, other law professors do. Law students writing papers and their own articles do. And. And. Hmmm. That is really it. Lawyers handling cases raising new or controversial legal issues may cite law review articles in their briefs, and judges do sometimes cite them in opinions. (I love it when a judge cites one of my articles!) But lawyers don't regularly read law reviews for intellectual sustenance, and if you're not a lawyer, well, there's an access problem. Although there are notable exceptions, law reviews don't generally post their articles on line. And even if they did, if the typical article is a dense 50-70 pages, who even has the time except other academics?

Well something is new in legal academia, and I applaud it. Some journals are posting relatively short pieces on line in novel formats. Harvard Civil Rights-Civil Liberties Law Review is holding a colloquium based on a short on-line article, Gay Rights and Lefts, by Northeastern Law Professor Libby Adler. Adler's piece will appear on February 1, and one month later the journal will post short responses (up to 1000 words) from a couple of dozen lawyers and law profs (including me). It's public intellectual discussion that can engage an audience far greater than the readership of law reviews.

Last month the online site of the University of Pennsylvania Law Review hosted a debate on "The Argument for Same-Sex Marriage." (The site is named PENNumbra, a cute name that a law student or lawyer would recognize as a play on the "penumbras" of various constitutional amendments in the Bill of Rights.) It's worth reading. Two law profs, Debroah Widiss and Nelson Tebbe, argue that lawyers should not argue that marriage is a fundamental right. It's not like childbearing or abortion, something you can do without the state. Rather it is a state-conferred status, and the state could abolish marriage for everyone, which it could not do if it was a fundamental right. (I agree completely.) Then they argue that typical equal protection arguments are unlikely to succeed in the Supreme Court, even though they have won in some lower courts. The argument they settle on is what they call an "equal access" argument -- that once the state creates marriage (like once it holds elections, or allows parties to appeal a trial court decision) it cannot selectively exclude people from the important institution it created.

The more interested read in the debate, however, is from Wake Forest law prof Shannon Gilreath, who argues against arguing for marriage. He criticizes the enormous amount of money spent litigating in California over the word "marriage" (since same-sex couples already had the rights under the term domestic partnership). He then critiques marriage from a gay liberation perspective. This isn't new, but he cites many legal scholars whose work is mostly available in law review articles, and so the benefit of this format shines through; you can get a taste of the larger critique in this user-friendly format.

Then he makes a more unusual point. He argues that the home is violent for women and the necessity of divorce to end a marriage creates a dangerous situation. He then discusses violence in same-sex relationships and argues we should not make them more difficult to exit. He also argues that the private family exemplified by marriage is less safe than a more communitarian idea of family. Here I think he misses a lot. Laws that protect against intimate violence extend almost everywhere to same-sex couples, as well as unmarried heterosexual couples. Those laws were once available only to married couples, and so it's an area of law that has actually expanded its reach to address the needs of real people in violent situations, married or not. He doesn't convince me that marriage creates more violence. And economic and emotional dependence can make it hard to leave an unmarried relationship. He did not convince me that the availability of marriage would make gay men and lesbians less safe in the home.

But I do love his last line: I fear that when the history of the Gay movement itself is written it will read more as epitaph than epilogue: Once upon a time there was a Movement... then there was Marriage.

While I'm pointing out critiques of the movement for marriage equality available on line, check out this one by Yale English/American Studies prof Michael Warner (author of The Trouble with Normal), that appeared as an essay in the California Law Review, but is, amazingly, available in full on line. It's longer than the new format of law review websites, but it's worth reading. He argues that gay rights advocates go after marriage because it symbolizes obtaining the dignity and respect of straight people. "To argue for gay marriage on these grounds," he writes, "is to despair that respect can be compelled on any other terms." I couldn't have said it better.

Adar v. Smith oral argument focuses on procedure

2011-01-25T10:01:00.009-05:00

I thought there would be numerous press accounts of the oral arguments last week in Adar v. Smith. After all, it's a case that exemplifies a significant "culture war" between states that fully respect the ability of same-sex couples to raise children, including adopted children, and states that wish to signal their disapproval of childrearing by same-sex couples in every way they can. In addition, it was an en banc 5th Circuit argument, meaning that all 16 judges on a court that sits just below the US Supreme Court heard the case. This is not an everyday occurence. (The court's website says that requests for en banc hearings are granted less than 3% of the time).

But I've listened to the oral argument online now (click here and look for Oren Adar v. Darlene Smith), and I realize that probably 95% of the time was taken up by legal issues so technical that I had to listen to it twice before even writing this account. So it's no wonder the argument was not covered in a single newspaper or other mainstream media source.

The Louisiana Attorney General's office hopes the 5th Circuit never discusses adoption by a same-sex couple when it rules in the case. It wants the case dismissed on the basis that the federal court lacks subject matter jurisdiction (meaning the legal authorization) to hear the case. It thinks the Full Faith and Credit Clause is a command to courts and cannot be the basis of a lawsuit against a state registrar to issue a new birth certificate. Don't even try to understand that if you have taken a law school course in both Civil Procedure and Federal Courts. Some of the judges appeared to think the couple needed to take the case to state court.

Then the state argued that the couple lacks standing to challenge the refusal of the state to issue a birth certificate because nothing bad has happened to them. Since there is supposedly no evidence that anyone has failed to recognize both men as parents, there is nothing for the court to decide. If that happens, the state argues, then the couple could go to state court and make an argument there.

Well there have been some problems faced by the couple, but, in any event, argued Ken Upton from Lambda Legal on behalf of the couple, not having a birth certificate is an injury. This caused a judge to ask whether a state could refuse to issue new birth certificates at all for any children after they were adopted. That would be an injury without a remedy, Upton answered (because there is no constitutional right to have a birth certificate changed). And therein lies the heart of the case: the state does issue new birth certificates, but only for children adopted by a single individual or a married couple. That is the equal protection claim in the case, and it's the dispute about that claim that was so absent in the oral argument.

Anyway, from the Louisiana Attorney General's office, Kyle Duncan argued that the Full Faith and Credit Clause binds the parties only, so neither Dad could challenge the adoption in Louisiana (and the birth parents could not relitigate their consent to the adoption). He said that Louisiana might, and I want to emphasize might, have to recognize both men as parents should it come up in such context as the right to recover for the wrongful death of a parent. But he argued that Louisiana does not have to issue a new birth certificate. One state's adoption decree cannot require another state to change its public records, he said. That "might" drove me nearly insane as I listened to it. The state is not even conceding that the child actually has two legal parents of the same sex. This is very scary stuff.

The state argued that its DOMA requires Louisiana to interpret all its statutes to negate recognition of marriage by same-sex couples. This couple isn't asking for recognition as a married couple at all, so that argument is out of line. But because there is a plausible question under state law about whether, in fact, the registrar is applying the law properly by considering the state DOMA in refusing to issue a birth certificate, some judges seemed to want the case heard in state court so that a state court could decide what the state law requires.

There is a bottom line here. Whatever the Full Faith and Credit Clause means, the Equal Protection Clause prohibits a state from distinguishing between children of married parents and children of unmarried parents unless doing so is substantially related to an important governmental objective. Even if the court judged the case on a "rational basis" standard, the state would have to say that the distinction between those to whom it gives new birth certificates and those to whom it does not is rationally related to a legitimate state interest. Here the state says that its birth certificate policy is in keeping with its adoption law that only married couples can adopt in Louisiana. The state argues as though the plaintiffs cannot win unless the court rules it is unconstitutional to deny unmarried couples the ability to adopt children. Here's the quote from the state's brief (although, again, this did not come up in the oral argument):

Louisiana’s birth certificate policy, like the adoption laws undergirding it, enacts a simple intuition: a marriage recognized by law and a common culture provides a better basis for raising children than other relationships. We have not yet reached the point where federal courts will declare, by their own power, that such judgments are nothing more than bigotry.

Maybe so. But this is not what the plaintiffs seek.

So here is where I am left after digesting the oral argument and the briefs in this case. The District Court and the panel of the 5th Circuit that ruled for the plaintiffs ducked the Equal Protection claim by ruling on the Full Faith and Credit claim. If the en banc court disagrees about the merits of the Full Faith and Credit claim, then I don't see how it can duck the Equal Protection claim. A win on that ground would be sweet, and a loss devastating.

Fifth Circuit hears argument en banc tomorrow on case testing interstate recognition of adoption decrees

2011-01-18T10:14:00.004-05:00

Early last year, a panel of the Fifth US Circuit Court of Appeals ruled in Adar v. Smith that Louisiana was required to issue a new birth certificate naming two men as the parents of a child born in Louisiana, after the couple adopted the child together in New York. The Louisiana registrar of vital records refused to issue the birth certificate with both fathers' names because unmarried couples are not permitted to adopt in Louisiana.

Well, the court granted the state's motion for rehearing en banc, and tomorrow all the judges on the 5th Circuit will hear oral argument in the case. The state is making an insidious argument that threatens the validity of all second-parent adoptions across state lines. While conceding that the adoptions are valid in the states where they were issued and bind the parties who litigated in all states, Louisiana is arguing that the Full Faith and Credit Clause of the Constitution does not require it to enforce an adoption decree that is against its public policy.

The Full Faith and Credit Clause requires states to enforce judgments from the courts of other states, without regard to their own public policies. A state is not required, however, to give Full Faith and Credit to another state's laws. An adoption decree is a judgment, but Louisiana is saying that the law that allowed a gay male couple to adopt in New York is what is really at issue and it is not required to give Full Faith and Credit to that, at least when it comes to enforcement through issuing a birth certificate that could not be issued under Louisiana's laws.

It's an argument that should lose. The 10th Circuit ruled four years ago in Finstuen v. Crutcher that an Oklahoma statute refusing to recognize adoptions from other states by same-sex couples and provide new birth certificates was unconstitutional. In the pending case, Louisiana tries to distinguish that opinion, but also argues that it was just plain wrong. If the 5th Circuit sides with the state, that will set up a Circuit split that could only be resolved by the US Supreme Court.

The state's argument also reminds me of the permutations argued by Lisa Miller in the longstanding litigation over Virginia's obligation to recognize Vermont's determination that Janet Jenkins is a parent of the child they planned together and entitled to visitation or custody. While that case turned on a specific federal statute requiring recognition of custody rulings from other states, rather than on the Full Faith and Credit Clause, after Miller lost on Virginia's obligation to recognize the Vermont order she argued that the statute did not require Virginia to enforce the Vermont order. It's a distinction with no legal difference, and Miller keeps losing.

While this case involves two men, Oren Adar and Mickey Rae Smith, Lousiana claims it would not issue an amended birth certificate for any unmarried couple who adopted a child born in Louisiana, because Lousiana prohibits such adoptions. A friend of the court brief filed on behalf of two law professors, Joan Hollinger and Barbara Bennett Woodhouse, and one of the most distinguished family law practitioner in Texas, Harry Tindall, who was chair of the committee that wrote changes to the Uniform Parentage Act, argues that this is unconstitutional discrimination against children of unmarried parents. I find it no accident that the first US Supreme Court case declaring discrimination against nonmarital children unconstitutional also came from Louisiana.

Lousiana's response to this? Essentially they say that while it is unconstitutional to discriminate against a child born to an unmarried couple, it is not unconstitutional to discriminate against a child adopted by an unmarried couple. Really.

The court will release a recording of the oral argument (here), but probably not until next week.