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.
Showing posts with label Court decisions -- good. Show all posts
Showing posts with label Court decisions -- good. Show all posts
California appeals court upholds parentage determination for Colonel in US Air Force Reserves
Labels:
Court decisions -- good,
DADT,
LGBT parents
South Carolina appeals court reverses custody award to father that was based in part on mother's abortion
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:
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.
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.
Labels:
Court decisions -- good
Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple
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.
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.
Labels:
Court decisions -- good,
LGBT parents,
surrogacy
Nebraska Supreme Court rules nonbio mom entitled to hearing on custody and visitation
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:
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.
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.
Labels:
Court decisions -- good,
LGBT parents
Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services
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.
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.
Labels:
adoption,
Court decisions -- good,
foster care
Wisconsin trial court upholds domestic partner registry
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.
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.
Wyoming Supreme Court allows married same-sex couple to divorce
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.
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.
Labels:
Court decisions -- good,
marriage equality
Arkansas Supreme Court strikes down adoption and foster parenting ban
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.
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.
Labels:
adoption,
Arkansas,
Court decisions -- good
Nonbio mom, Sondra Shineovich, successful on remand from Oregon Court of Appeals
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
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.
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.
Delaware Supreme Court upholds de facto parent statute and upholds joint custody award
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:
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.
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.
Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about
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.
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.
Labels:
Court decisions -- good,
DOMA,
marriage equality
Arkansas Supreme Court approves visitation rights for non-bio mom
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.)
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.)
Labels:
Arkansas,
Court decisions -- good,
LGBT parents
When lesbians conceive through sexual intercourse, different legal issues arise
We don't discuss it much. It confounds notions of fixed sexuality and fidelity. But sometimes when a lesbian couple wants a child one partner conceives through sexual intercourse. Relatively speaking, it is cheap and reliable. But it alters the legal context of everything that follows. In Quebec, the law explicitly recognizes that assisted reproduction can include reproduction through sexual intercourse if the understanding is that the man will not be a father and is engaging in the sex act to allow the woman (or the woman and her partner) to be the only legal parent/s of the child. The impetus for this unique construct was the desire to make it as easy as possible for lesbians to have children and to shield them from the discrimination and cost of using fertility services. No law like that exists anywhere in the United States (or the rest of the world as far as I know). In a handful of cases here where a man and woman (lesbian or not or unknown) have made an agreement that only the woman would be a parent and that the man was assisting her through "artificial insemination by intercourse," no court has ever upheld the agreement. If it gets to court, the man has legal rights and responsibilities.
Well, a case decided this week in Minnesota throws some daylight on this form of conception used by some lesbians. A lesbian couple identified in the court's opinion as J.M.J. and L.A.M. arranged with J.L., J.M.J.'s ex-boyfriend, that he would conceive a child with J.M.J. and then consent to the child's adoption by L.A.M., thereby terminating his parental rights. And that's what he did. L.A.M. became the legal parent of the twin girls born to J.M.J.
First thing to point out is this. Legally speaking, this method of family formation should work out fine any place that allows second-parent adoption. A biological father can consent to his child's adoption by the mother's new husband, thereby terminating his parental rights. All courts are familiar with this practice. The adoption must be in the child's best interests, but where all the parties agree there is not likely to be any difficulty. What the three people in this case did falls squarely in that category. It's the same process used in second-parent adoptions where conception takes place through insemination with a known donor; donor consents to adoption by bio mom's partner and his rights are terminated. The end.
But it wasn't the end for this lesbian couple, whose relationship ended shortly after the adoption. J.M.J. then married a man (not the bio dad), and several years later she filed an action to vacate the adoptions on the ground that Minnesota does not allow second-parent adoption. (This issue has never been settled by an appeals court, but trial court judges do grant these adoptions.) The trial court ruled against J.M.J. on that ground and also on the ground that she waited too long to challenge the adoption. In the ruling from the appeals court this week, the court declined to address the validity of second-parent adoption in Minnesota and instead held simply that J.M.J. could not challenge the adoption so many years later.
The court also upheld a monetary sanction against J.M.J. and her lawyer for bringing a baseless action. Not only was she time-barred from challenging the adoption, but her challenge included a claim that the court was defrauded because it was not told that conception took place through sexual intercourse. There was a statement in the adoption petition about alternative insemination, but it also said the donor was unknown, yet it named J.L. and he fully participated in the adoption action. So the appeals court said the trial judge did not rely on any fraudulent representation and, further, that it made no legal difference how the children were conceived, and that J.M.J. herself perpetrated any fraud and could not now claim that as a basis to vacate the adoptions.
On another factual but legally insignifcant note, J.L. did play a role in the children's lives, even though he was not their legal parent. This isn't uncommon. One reason some lesbian couples use known donors is that they want the man involved in the child's life to some degree; they just do not want him to be a legal threat. A second-parent adoption removes the legal threat, and this kind of arrangement has been working out fine in many families for more than two decades. (The court ruling refers to a recent affidavit signed by J.L. but does not say who offered it in the trial or which side he supported).
So this court ruling is a window we don't often see into some lesbian family practices. They are certainly not the practices that form the picture of lesbian families in same-sex marriage cases. Of course the one practice we do see all too often that is present here is the badly-behaving bio mom trying to get rid of her child's other parent. Fortunately, this one loses.
Well, a case decided this week in Minnesota throws some daylight on this form of conception used by some lesbians. A lesbian couple identified in the court's opinion as J.M.J. and L.A.M. arranged with J.L., J.M.J.'s ex-boyfriend, that he would conceive a child with J.M.J. and then consent to the child's adoption by L.A.M., thereby terminating his parental rights. And that's what he did. L.A.M. became the legal parent of the twin girls born to J.M.J.
First thing to point out is this. Legally speaking, this method of family formation should work out fine any place that allows second-parent adoption. A biological father can consent to his child's adoption by the mother's new husband, thereby terminating his parental rights. All courts are familiar with this practice. The adoption must be in the child's best interests, but where all the parties agree there is not likely to be any difficulty. What the three people in this case did falls squarely in that category. It's the same process used in second-parent adoptions where conception takes place through insemination with a known donor; donor consents to adoption by bio mom's partner and his rights are terminated. The end.
But it wasn't the end for this lesbian couple, whose relationship ended shortly after the adoption. J.M.J. then married a man (not the bio dad), and several years later she filed an action to vacate the adoptions on the ground that Minnesota does not allow second-parent adoption. (This issue has never been settled by an appeals court, but trial court judges do grant these adoptions.) The trial court ruled against J.M.J. on that ground and also on the ground that she waited too long to challenge the adoption. In the ruling from the appeals court this week, the court declined to address the validity of second-parent adoption in Minnesota and instead held simply that J.M.J. could not challenge the adoption so many years later.
The court also upheld a monetary sanction against J.M.J. and her lawyer for bringing a baseless action. Not only was she time-barred from challenging the adoption, but her challenge included a claim that the court was defrauded because it was not told that conception took place through sexual intercourse. There was a statement in the adoption petition about alternative insemination, but it also said the donor was unknown, yet it named J.L. and he fully participated in the adoption action. So the appeals court said the trial judge did not rely on any fraudulent representation and, further, that it made no legal difference how the children were conceived, and that J.M.J. herself perpetrated any fraud and could not now claim that as a basis to vacate the adoptions.
On another factual but legally insignifcant note, J.L. did play a role in the children's lives, even though he was not their legal parent. This isn't uncommon. One reason some lesbian couples use known donors is that they want the man involved in the child's life to some degree; they just do not want him to be a legal threat. A second-parent adoption removes the legal threat, and this kind of arrangement has been working out fine in many families for more than two decades. (The court ruling refers to a recent affidavit signed by J.L. but does not say who offered it in the trial or which side he supported).
So this court ruling is a window we don't often see into some lesbian family practices. They are certainly not the practices that form the picture of lesbian families in same-sex marriage cases. Of course the one practice we do see all too often that is present here is the badly-behaving bio mom trying to get rid of her child's other parent. Fortunately, this one loses.
Labels:
adoption,
Court decisions -- good,
LGBT parents
Vermont Supreme Court agains rules in Janet Jenkins' favor
In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.
The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:
We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.
Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.
The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."
At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.
Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.
The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.
I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.
I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.
I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.
But my heart still goes out to Isabella.
The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:
We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.
Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.
The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."
At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.
Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.
The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.
I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.
I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.
I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.
But my heart still goes out to Isabella.
Labels:
Court decisions -- good,
Miller-Jenkins
New York court upholds California parentage judgment in surrogacy case
Surrogacy is illegal in New York (DC also!). That doesn't stop a New Yorker from going someplace where surrogacy is legal to have child. A gay male couple, DP and TR, did just that. They went to California, where a gestational mother became pregnant using a donor egg and semen from DP. Pursuant to a standard California practice, they went to court there, along with the surrogate and her husband, and obtained a pre-birth order naming DP and TR the parents of the twins about to be born. The children were born in August, 2001, and the names of both men appear as the parents on the birth certificates. The twins were born prematurely and hospitalized for over four months. During that time DP and TR relocated to California to be near them until they could be released to travel to New York.
At some point, the couple broke up, and DP filed for child support in New York Family Court. TR argued that, because surrogacy was against the public policy of New York, parentage deriving from the surrogacy arrangement should not be recognized in New York. On October 4, Magistrate Rachel Parisi rejected that argument. She noted first that there is no public policy exception to the enforcement of judgments from courts in other states. Therefore, the parentage judgment was entitled to Full Faith and Credit in New York. She independently relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement. (That's the law in DC as well; one of the first second parent adoptions granted in DC, in the early 1990s, was in the case of a gay male couple whose child was born in Virginia as a result of a surrogacy arrangement.)
DP's lawyer, Steven Weissman, is quoted in today's New York Law Journal as saying that the decision is significant for the number of New Yorkers who enter surrogacy arrangements elsewhere, and especially for gay male couples who often travel to California because pre-birth orders are available there.
The case underscores the importance of obtaining a court judgment (either of parentage or adoption) any time a same-sex couple is raising a child, even if they are married or in a registered relationship (civil union or domestic partnership). And even here in DC where both women in a lesbian couple are the legal parents of any child born to one of them using donor insemination. Parentage by virtue of a state statute may be challenged elsewhere. Parentage confirmed by a court judgment is entitled to Full Faith and Credit everywhere. I know I've said this often in this blog, but it bears repeating. What seems like a legal technicality, and what may be intimidating and expensive because it requires a lawyer and a court, turns out to be the only guarantee that a child planned as the child of two parents will have two legal parents forever.
At some point, the couple broke up, and DP filed for child support in New York Family Court. TR argued that, because surrogacy was against the public policy of New York, parentage deriving from the surrogacy arrangement should not be recognized in New York. On October 4, Magistrate Rachel Parisi rejected that argument. She noted first that there is no public policy exception to the enforcement of judgments from courts in other states. Therefore, the parentage judgment was entitled to Full Faith and Credit in New York. She independently relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement. (That's the law in DC as well; one of the first second parent adoptions granted in DC, in the early 1990s, was in the case of a gay male couple whose child was born in Virginia as a result of a surrogacy arrangement.)
DP's lawyer, Steven Weissman, is quoted in today's New York Law Journal as saying that the decision is significant for the number of New Yorkers who enter surrogacy arrangements elsewhere, and especially for gay male couples who often travel to California because pre-birth orders are available there.
The case underscores the importance of obtaining a court judgment (either of parentage or adoption) any time a same-sex couple is raising a child, even if they are married or in a registered relationship (civil union or domestic partnership). And even here in DC where both women in a lesbian couple are the legal parents of any child born to one of them using donor insemination. Parentage by virtue of a state statute may be challenged elsewhere. Parentage confirmed by a court judgment is entitled to Full Faith and Credit everywhere. I know I've said this often in this blog, but it bears repeating. What seems like a legal technicality, and what may be intimidating and expensive because it requires a lawyer and a court, turns out to be the only guarantee that a child planned as the child of two parents will have two legal parents forever.
Wyoming Supreme Court recognizes unmarried partners property rights
Jerald Hofstad and Cathryn Christie lived together from 1996 to 2007, with some breaks. They had two children and also raised five children from Jerald's previous relationship. Their case wound up in the Wyoming courts over a dispute concerning the size of Cathryn's share of the home they owned together. The home was purchased in 2005, using the proceeds from the sale of a home Jerald owned in his own name only. Jerald asked the court to value his share based on his vastly unequal financial contribution to the home, but the trial judge gave Cathryn half the value of the home. In an opinion handed down last week, the Wyoming Supreme Court upheld the 50-50 split.
Wyoming law allocates shares in a home held as "tenants in common" based on contribution to the home's purchase price. But that holds only if there is no "family relationship" between the co-owners. Evidence that one owner meant to give an equal share to the other, in spite of unequal contribution to the purchase price, can also create an equal share.
Jerald argued that, as an unmarried couple, he and Cathryn had no "family relationship." The court disagreed, based largely on the children they had in common. The court said that the couple's twin sons "bind the four of them inexorably and forever, resulting in a family relationship." [Emphasis in original]. Beyond that, the court also said that Jerald told Cathryn she would be an equal owner in the context of their reconciliation, and that indicated his intent to give Cathryn an equal share of the home.
I find it heartening that this ruling comes from Wyoming. I would go further and find a family relationship even without children, based on their years of living together in an intimate relationship. But I am reminded of a ruling over a decade ago in a wrongful death action brought by Laura Solomon when her partner Victoria Lane died in a tragic car accident. The District of Columbia trial judge ruled that Laura was Victoria's "next of kin" in large part because they had completed second parent adoptions and were both the legal parents of the two children they were raising. (The case ultimately settled, so this legal issue never went up on appeal).
Right after I read the court's opinion, I looked up Wyoming's "Defense of Marriage Act." Wyoming law says that marriage is between a man and a woman and nothing more. In other words, it is not a "super-DOMA," containing the kind of language that led to disapproval of employee domestic partner benefits in Michigan. The Michigan Supreme Court ruled that domestic partner benefits violated the part of the state's DOMA that prohibited recognition of a "legal status identical or substantially similar to that of marriage for unmarried individuals." Now I think the Wyoming court could have come out the same way even with a super-DOMA, since "family" is not the same as "marriage." But I also fear that at least some judges would go the way of Michigan and rule that considering an unmarried couple family would be just what the state's DOMA was trying to avoid.
And I also have to say that no state gets it as right as Washington does. In Washington property acquired by either cohabiting partner can be divided as community property when the relationship ends. The Wyoming opinion doesn't tell us how much of Jerald's assets Cathryn never had a claim to because the bright line of marriage kept her from claiming any of "Jerald's" savings, investments, or other assets. Had the home been titled in Jerald's name alone she would have been out of luck. Washington state is a great model. I wish other states would follow its lead.
Wyoming law allocates shares in a home held as "tenants in common" based on contribution to the home's purchase price. But that holds only if there is no "family relationship" between the co-owners. Evidence that one owner meant to give an equal share to the other, in spite of unequal contribution to the purchase price, can also create an equal share.
Jerald argued that, as an unmarried couple, he and Cathryn had no "family relationship." The court disagreed, based largely on the children they had in common. The court said that the couple's twin sons "bind the four of them inexorably and forever, resulting in a family relationship." [Emphasis in original]. Beyond that, the court also said that Jerald told Cathryn she would be an equal owner in the context of their reconciliation, and that indicated his intent to give Cathryn an equal share of the home.
I find it heartening that this ruling comes from Wyoming. I would go further and find a family relationship even without children, based on their years of living together in an intimate relationship. But I am reminded of a ruling over a decade ago in a wrongful death action brought by Laura Solomon when her partner Victoria Lane died in a tragic car accident. The District of Columbia trial judge ruled that Laura was Victoria's "next of kin" in large part because they had completed second parent adoptions and were both the legal parents of the two children they were raising. (The case ultimately settled, so this legal issue never went up on appeal).
Right after I read the court's opinion, I looked up Wyoming's "Defense of Marriage Act." Wyoming law says that marriage is between a man and a woman and nothing more. In other words, it is not a "super-DOMA," containing the kind of language that led to disapproval of employee domestic partner benefits in Michigan. The Michigan Supreme Court ruled that domestic partner benefits violated the part of the state's DOMA that prohibited recognition of a "legal status identical or substantially similar to that of marriage for unmarried individuals." Now I think the Wyoming court could have come out the same way even with a super-DOMA, since "family" is not the same as "marriage." But I also fear that at least some judges would go the way of Michigan and rule that considering an unmarried couple family would be just what the state's DOMA was trying to avoid.
And I also have to say that no state gets it as right as Washington does. In Washington property acquired by either cohabiting partner can be divided as community property when the relationship ends. The Wyoming opinion doesn't tell us how much of Jerald's assets Cathryn never had a claim to because the bright line of marriage kept her from claiming any of "Jerald's" savings, investments, or other assets. Had the home been titled in Jerald's name alone she would have been out of luck. Washington state is a great model. I wish other states would follow its lead.
Labels:
Court decisions -- good,
defining family
Florida appeals court finds ban on gay and lesbian adoptions unconstitutional
In a long-awaited ruling, the Florida Third District Court of Appeal, in In re Adoption of X.X.G. & N.R.G. (usually referred to as the Gill case), has declared the state's ban on adoption by gay men and lesbians unconstitutional. The three-judge panel unanimously upheld the trial court's ruling and held that the ban violated the Florida constitution's guarantee of equal protection. The court applied the "rational basis" test, under which a statute that classifies people (such as gay and non-gay in this case) must be upheld if the classification bears a "rational relationship to a legitimate governmental objective." There must be, the court said, a real difference (emphasis in opinion) between the two groups that is reasonably related to the purpose of the rule. The ruling turned largely on the fact that Florida allows gay men and lesbians to be foster parents and legal guardians, that the Department of Children and Families agreed that "gay people and heterosexuals make equally good parents," and that all adoptions are based on a case-by-case evaluation of a child's needs and the circumstances of the prospective adoptive parents.
If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.
The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.
The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.
It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.
I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!
If you think you've heard about many challenges to Florida's ban, it's because you have. There have been cases going through both the state and federal courts for the last 15 years. In the most outrageous of the rulings upholding the ban, the federal 11th Circuit Court of Appeals in the Lofton case ruled that Florida could believe that children do best with married heterosexual parents and that it was rational to place children with single parents in spite of that preference (which the state does 34% of the time) because a single heterosexual parent might get married one day! More recently, several trial court judges have been granting individual adoptions in spite of the ban.
The most distinguishing characteristic of the Gill litigation is that there was an actual trial with direct and cross examination of witnesses. (This is the fact that also distinguishes the Perry marriage litigation from other cases challenging the ban on same-sex marriage.) In addition to the overwhelming evidence of the well-being of the children in the Gill home (the concurring judge called the steps taken by Gill and his partner to address the needs of the children "nothing short of heroic"), the ACLU lawyers representing Gill presented 10 expert witnesses and the state presented two. One of the state's two witnesses was Dr. George Rekers, since discredited in a "rent boy" scandal; the other was a professor whose analysis of the relevant mental health research was flawed but who, more importantly, testified that he opposed the categorical ban and believed that judges should rule on adoptions by gay men and lesbians on a case-by-case basis! Basically what is has come to is that no reputable social science expert can testify that gay men and lesbians should never be able to adopt children.
The state did not argue that gay people are unfit to be parents. It made arguments about married heterosexuals being better role models and about gay homes being less stable and more prone to domestic violence. On the latter points, the opinion points out the expert testimony to the contrary. On the former, the opinion quotes from the trial court's ruling and emphasizes in bold (I love when they do this!) that the research shows "no differences in the parenting of homosexuals or the adjustment of their children." And on the further argument about the risk of discrimination and stigma, the court points out the fallacy of relying on this argument since the state allows foster placement and legal guardianship.
It's common for pro-gay court rulings to end with a conclusion that the discrimination must be based on animosity to gay people, which by itself cannot be the only reason for a law. This opinion is silent on this subject. Only the concurrence refers to the passage of the ban in 1997 "in haste," and it doesn't mention Antia Bryant and her hateful campaign that referred to gay people as, among other things, "human garbage." What I love about this opinion is that it doesn't need to do that. There needs to be a rational basis for this law and there isn't. Nothing more needs to be said...although it does ultimately need to be said by the Florida Supreme Court.
I know there have been questions about whether the state would appeal this decision. It should. A ruling from the Florida Supreme Court will throw the law out for good. Leaving this ruling to stand would affect only part of the state and would leave the legal issues in limbo. We can win this one. I have complete faith in Leslie Cooper and the other amazing ACLU lawyers. And I guess I have great faith in the power of rational thinking, although why I retain that faith, given how often irrational arguments about gay people prevail, could well be open to question. Still, today, let's celebrate!
Labels:
adoption,
Court decisions -- good,
Florida
There will be no popular vote on marriage equality in DC
The DC Court of Appeals, sitting en banc, ruled this morning in Jackson v. District of Columbia Board of Elections and Ethics that the marriage equality legislation enacted last year by the DC City Council is not a proper subject for the initiative or referendum process. That means there will be no popular vote on marriage equality in DC.
The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.
The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.
We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.
Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...
The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.
The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.
We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.
Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...
Second-parent adoption in Georgia...oh and in France
To read about it in the news, the big story out of France is the decision of the country's highest court that a child who has been adopted by her biological mother's partner in the US has two legally recognized parents in France. (I'm trying not to be too annoyed that this account of the court's decision says the women are both physicians but calls them "Mrs. B" and "Mrs. N"). And that is indeed a big deal, given that not so long ago the French courts were ruling that being gay was a disqualifier from adopting a child.
But you might miss the fact in the story that the American second-parent adoption was granted in...Georgia. Now I have never heard of a second-parent adoption in Georgia, and neither NCLR nor HRC list Georgia among the states where some counties have approved such adoptions.
So I say "bravo" to the French court, but a double shout out to the Georgia court that granted the second-parent adoption. It supports my faith in family court judges, who often know where the best interests of a particular child lie and are unswayed by ideological claims that conrtadict those interests.
But you might miss the fact in the story that the American second-parent adoption was granted in...Georgia. Now I have never heard of a second-parent adoption in Georgia, and neither NCLR nor HRC list Georgia among the states where some counties have approved such adoptions.
So I say "bravo" to the French court, but a double shout out to the Georgia court that granted the second-parent adoption. It supports my faith in family court judges, who often know where the best interests of a particular child lie and are unswayed by ideological claims that conrtadict those interests.
Labels:
Court decisions -- good,
LGBT parents
"Paramour provision" once again removed from Tennessee custody decree
When I wrote last fall about Angel Chandler's successful appeal from a provision in her custody decree prohibiting her from having a "paramour" overnight in her home while her children were there, I thought that would be the end of it. Silly me.
The Tennessee Court of Appeals sent Angel's case back to the trial court for a hearing on what the children's best interests required, and the judge once again imposed the "paramour provision." There was no evidence to support this provision, which the children's father took no position on. In fact, there was evidence that the restriction was against the children's interests, as the children had a good relationship with their mother's female partner. Nonetheless, the trial judge, including the restriction on his own, reasoned that "a paramour overnight, abuse of alcohol and abuse of drugs are clearly common sense understanding that children can be adversely affected by such exposure, as found from the legions of cases in the state of Tennessee."
Well, this week the Tennessee appeals court once again reversed the trial court. It's frustrating that this mother had to go through two appeals to achieve this result, and Tennessee gay family law expert Abby Rubenfeld thinks it's not a huge win in the long run because the court doesn't throw out such restrictions altogether. But requiring evidence of harm before imposing such a restriction may be the best anyone can hope for in state that's not especially welcoming of gay and lesbian parents.
This case reminds me of Boswell v. Boswell which I litigated in Maryland in the late 1990's. A trial judge prohibited the gay father from having his children overnight when his partner was present. The mother had not requested the restriction, but she defended it through two levels of appeal all the way to Maryland's highest court. The court overturned the restriction.
At the time, I argued that the court needed to find an adverse impact on the child before restricting visitation, and that is what the court held. Since then, I've changed my mind about the optimal analysis; I would like to argue that the presence of a parent's partner can never have an adverse impact on a child. Sure, the partner may pose a problem for a child, but so can a heterosexual step-parent. Whenever anything in a parent's life is harming a child the court is allowed to consider that, and there shouldn't be a standard specfically carved out for same-sex or non-marital partners. Nonetheless, the "adverse impact" standard is easier to argue, and when there is no case law going even that far, it's to be expected that an advocate will go that route.
If I get a chance make the better argument in a court that might be receptive to it, I'll go for it. In the meantime, a ruling like Baker v. Chandler still counts as a victory.
The Tennessee Court of Appeals sent Angel's case back to the trial court for a hearing on what the children's best interests required, and the judge once again imposed the "paramour provision." There was no evidence to support this provision, which the children's father took no position on. In fact, there was evidence that the restriction was against the children's interests, as the children had a good relationship with their mother's female partner. Nonetheless, the trial judge, including the restriction on his own, reasoned that "a paramour overnight, abuse of alcohol and abuse of drugs are clearly common sense understanding that children can be adversely affected by such exposure, as found from the legions of cases in the state of Tennessee."
Well, this week the Tennessee appeals court once again reversed the trial court. It's frustrating that this mother had to go through two appeals to achieve this result, and Tennessee gay family law expert Abby Rubenfeld thinks it's not a huge win in the long run because the court doesn't throw out such restrictions altogether. But requiring evidence of harm before imposing such a restriction may be the best anyone can hope for in state that's not especially welcoming of gay and lesbian parents.
This case reminds me of Boswell v. Boswell which I litigated in Maryland in the late 1990's. A trial judge prohibited the gay father from having his children overnight when his partner was present. The mother had not requested the restriction, but she defended it through two levels of appeal all the way to Maryland's highest court. The court overturned the restriction.
At the time, I argued that the court needed to find an adverse impact on the child before restricting visitation, and that is what the court held. Since then, I've changed my mind about the optimal analysis; I would like to argue that the presence of a parent's partner can never have an adverse impact on a child. Sure, the partner may pose a problem for a child, but so can a heterosexual step-parent. Whenever anything in a parent's life is harming a child the court is allowed to consider that, and there shouldn't be a standard specfically carved out for same-sex or non-marital partners. Nonetheless, the "adverse impact" standard is easier to argue, and when there is no case law going even that far, it's to be expected that an advocate will go that route.
If I get a chance make the better argument in a court that might be receptive to it, I'll go for it. In the meantime, a ruling like Baker v. Chandler still counts as a victory.
Labels:
Court decisions -- good,
LGBT parents
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