Last Friday, California Governor Jerry Brown signed the Protection of Parent-Child Relationships Act. This groundbreaking statute will solve a problem I wrote about last year in this post. Because federal law allows the mother and biological father of a child to sign a Voluntary Acknowledgement of Paternity (VAP) that makes the man a legal parent, the following scenario is possible: Lesbian couple raises child as two moms; under California case law, nonbio mom is presumptive parent because she received the child into her home and held the child out as her own; lesbian couple splits up; bio mom and known semen donor sign VAP, which makes man the legal father and rebuts the nonbio mom's presumption of parentage. That is what Maggie Quayle tried to do to Kim Smith. And she had on her side a 2009 California appeals court ruling that a VAP signed by a biological father trumped the presumptive parentage of a nonbiological father. Kim Smith testified in favor of this law reform effort.
Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.
Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.
Showing posts with label defining parentage. Show all posts
Showing posts with label defining parentage. Show all posts
New California statute protects nonbiological parents
Labels:
assisted reproduction,
defining parentage
Parentage not tied to marriage is better...but how to get lesbian couples to understand this?
The DC Gay and Lesbian Activist Alliance Forum noted last week that a married lesbian couple was told by Sibley Hospital in DC that they would have to present their marriage license to get both of their names on the birth certificate of the child that one of them gave birth to. After alerting members of the DC City Council who enacted parentage reform in 2009 (see here for more info on the law), three members sent a letter to Sibley decrying discrimination against the couple. (link to letter on GLAA Forum website). It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a marriage certificate then they cannot make such a request of a same-sex couple.
But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.
This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.
If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.
A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.
And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.
So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.
The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.
My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.
But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.
This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.
If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.
A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.
And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.
So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.
The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.
My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.
NY Times highlights family trees complicated by assisted reproduction
It's shaping up to be a banner week for the New York Times attention to LGBT families. Yesterday's paper edition included a front page article, "Who's on the Family Tree? Now It's Complicated."
Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).
Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.
The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.
This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.
One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.
There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).
Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.
Complicated, indeed.
Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).
Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.
The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.
This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.
One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.
There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).
Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.
Complicated, indeed.
Washington state enacts comprehensive parentage statute
Earlier this month, Washington state enacted a version of the Uniform Parentage Act that will recognize parentage in numerous family situations. The legislation is effective on July 22, 2011 and applies to all causes of actions filed after that date. Proposed legislation on surrogacy was withdrawn from the bill and is therefore not covered in this statute.
The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."
In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.
The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own." A proceeding to adjudicate parentage when a child has a presumed parent must be brought within four years of a child's birth unless the presumed parent did not live with (or have sexual intercourse with)the other parent during the probable time of conception and never held the child out as his/her own (in which case it can be brought at any time).
It is a real thrill to me to see so many provisions of the DC parentage statute adapted to another state. Washington already recognized "de facto" parents under its case law. That status will remain important in instances when this parentage statute does not apply, such as an adopted child. But because this statute applies to any court action filed after its effective date, some nonbio moms who would previously have been "de facto" parents will now be parents under this statute. To the extent that the "de facto" parent status had some ambiguity (like whether it conferred the right to inherit by intestate succession) the new statute assures the existence of a parent-child relationship for all purposes.
Congratulations to the advocates who worked tirelessly on this legislation, especially Seattle lawyer Pat Novotny.
The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."
In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.
The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own." A proceeding to adjudicate parentage when a child has a presumed parent must be brought within four years of a child's birth unless the presumed parent did not live with (or have sexual intercourse with)the other parent during the probable time of conception and never held the child out as his/her own (in which case it can be brought at any time).
It is a real thrill to me to see so many provisions of the DC parentage statute adapted to another state. Washington already recognized "de facto" parents under its case law. That status will remain important in instances when this parentage statute does not apply, such as an adopted child. But because this statute applies to any court action filed after its effective date, some nonbio moms who would previously have been "de facto" parents will now be parents under this statute. To the extent that the "de facto" parent status had some ambiguity (like whether it conferred the right to inherit by intestate succession) the new statute assures the existence of a parent-child relationship for all purposes.
Congratulations to the advocates who worked tirelessly on this legislation, especially Seattle lawyer Pat Novotny.
Labels:
defining parentage
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.
Focus in Iowa should be children of all lesbian couples -- not just those whose moms have married
Earlier this month, the Des Moines Register began an article as follows: "The next legal battle over gay rights in Iowa could come from a same-sex couple determined to have both their names listed on their child's birth certificate."
Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.
This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).
Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.
For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.
This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.
Anyone who reads this blog knows I can get behind a demand like that, but there's a catch in this instance. The article describes litigation in Iowa that will affect only the children of married same-sex couples. The Iowa Attorney General refuses to put on a birth certificate the name of a birth mother's spouse if the spouse is a woman, and the litigation challenges the validity of the attorney general's decision.
This means that even if the litigation is successful, the outcome will do nothing for the children of lesbian couples who don't marry. Litigation is a lot of work and a lot of resources. Decisions must always be made about how to allocate those resources. In this instance I think Lambda Legal, representing the Iowa lesbian couple, is making a mistake. I don't think our national LGBT rights organizations should spend their resources to help only the children of married couples. The District of Columbia protects children's relationships with their parents in a variety of circumstances. I've written about our parentage statute here. And we have separate legislation that preserves access between a child and a "de facto" parent when the parentage statute does not apply (e.g., the child was adopted by one member of the couple or the child was born using surrogacy).
Here's another reason for my concern with this Iowa litigation. A name on a birth certificate does not definitely establish parentage. So the fight to get both names on the birth certificate is not a fight that guarantees the child will have two legal parents. And even if Iowa were to consider it sufficient to create parentage there, parentage that derives solely because the couple is married is not likely to survive if challenged in a state with a "defense of marriage act" that refuses to recognize same-sex marriages. Since the parentage will exist only because the marriage exists, it could disappear in a state that treats the marriage as though it doesn't exist.
For these reasons I see these efforts as about marriage not about parentage. And that disturbs me since it has been a principle of family law for more than 40 years that children are not supposed to suffer because their parents have not married.
This type of circumstance is precisely why I have organized a conference for this coming Friday and Saturday on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage. There's information about it here. Registration is free. If you can't attend, you'll be able to watch a webcast at a later date.
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.
Who are the parents of Viva Katherine Wainwright Cohen?
Viva Katherine Wainwright Cohen (d.o.b. 2/2/11) is the heir to folk music royalty. As the granddaughter of Loudon Wainwright III, Kate McGarrigle, and Leonard Cohen, she starts off life with songs -- and poetry -- in her blood. (By the way, I'm old enough to think of Rufus as the son of Loudon, rather than Loudon as the father of Rufus. As a folk music DJ in the early 1970's, I came of age listening to Loudon's early albums).
But who are her parents?
The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."
But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.
Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.
California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.
I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.
The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).
To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.
But who are her parents?
The official Rufus Wainwright website says that Rufus Wainwright is her father, Lorca Cohen (Leonard's daughter) is her mother, and Rufus's partner, Jorn Weisbrodt, is her "Deputy Dad." Some early press coverage of Viva's birth referred to Lorca as a "surrogate," and Rufus took the time to specifically reject such a characterization. In this lengthy feature in The Guardian, Rufus refers to the child's "three parents."
But can a child have three parents? It's an undertheorized and underdiscussed question. More commonly, a lesbian couple has a child using a known semen donor, and occasionally the expectation of all is that all three will be parents. According to lawyers I know, judges in Alaska, California, Massachusetts, and Washington State have granted an adoption creating parentage for the biological mother's partner without terminating the semen donor's parental rights. Those children have three parents.
Washington University law professor Susan Appleton has written a terrific law review article challenging the notion that only two people can or should be recognized as a child's parents. The article is available here.
California law creates a presumption of parentage for a person who brings a child into his/her home and holds the child out as his/her own. Is Jorn doing that? It's just a presumption, and when the California courts have applied it to the female partner of a woman giving birth there has been no other "second parent" in the picture. Would the court make the same decision if the child already has a second parent? Also, Rufus reported to Vanity Fair in December that he and Jorn are engaged. Their marriage would make Jorn a step-parent, but that's not the same as being a parent.
I consulted Deborah Wald, a San Francisco lawyer who specializes in gay and lesbian families (and other families formed through assisted reproduction). She notes that once Jorn is a step-parent he will have the right to seek visitation if he and Rufus split up. (sorry...we lawyers always think about that possibility...). But their other options depend on what exactly they intend. Wald says that if all three agree that Jorn and Rufus should be the primary parents, then Lorna could allow Jorn to adopt Viva. She would no longer be a parent, but they could all agree to give her a right to visitation, which would be enforceable under California's open adoption statute. If they want to be three equal parents, however, Wald suggests they proceed with a “third parent” adoption, something some California judges will grant.
The most common disputes that hit the courts involve whether a child will continue to have a relationship with someone s/he considers a parent when the adult relationships deteriorate. Increasingly, we also see disputes over whether a person who planned for the birth of a child can walk away from a financial obligation to contribute to the child's support. But there are many other circumstances where legal parentage matters, including the right to inherit without a will, sue for wrongful death, or receive government benefits if a parent dies or becomes disabled. Viva is a US citizen because she was born here. Jorn is a German citizen, and his status as Viva's parent -- or not -- could affect Viva's status in Germany. (Not that I know anything about German citizenship law).
To Viva, the legal status of the adults who love and care for her doesn't matter. Until it does.
Labels:
defining parentage,
LGBT parents
Two moms on Maryland birth certificates...not the victory it might sound like
Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.
Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.
Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.
And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.
In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.
While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.
If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.
This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.
In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.
Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.
Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.
And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.
In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.
While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.
If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.
This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.
In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.
Labels:
birth certificates,
defining parentage,
Maryland
Wisconsin court leaves stand a parentage order for a nonbio mom but precludes such orders in the future
The most horrific part of last month's North Carolina Boseman v. Jarrell opinion against second-parent adoption was that it said the court that granted the adoption lacked "subject matter jurisdiction," which means that the order was void, along with all second-parent adoption orders, the moment it was granted. That wiped out every second-parent adoption in the state.
Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.
Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.
When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.
The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.
But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.
It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.
And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.
Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.
Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.
When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.
The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.
But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.
It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.
And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.
Supreme Court lets stand New York ruling for Debra H.
I wrote extensively about the dreadful New York Court of Appeals decision last year that refused to recognize parentage of a nonbio mom based on the couple's creation of a two-parent family. That court did, however, find that Debra H. was the parent of the child born to Janice R. because the couple was in a Vermont civil union when the child was born. The fact that a child in New York has two parents if the couple is married or in a civil union but otherwise has one parent, no matter how much that couple planned for and raised the child together, was a major impetus for the conference I'm hosting in March on the "New Illegitimacy."
Anyway, Janice asked the US Supreme Court to hear her case, claiming that granting parental status to her civil union partner violated her Constitutional right to raise her biological child. Yesterday, the Court denied her petition. That's what I expected. The Court hears very few cases at all, and very few specifically in the area of family law, which is generally a matter of state law and varies so much from state to state. Other nonbio moms have also been turned away when they've asked the Court to hear their cases. Refusing to hear a case -- which is called a denial of certiorari in legal-speak -- has no legal significance. In other words, it doesn't add anything to the New York ruling or make it more meaningful in any way. It just leaves it alone.
Anyway, Janice asked the US Supreme Court to hear her case, claiming that granting parental status to her civil union partner violated her Constitutional right to raise her biological child. Yesterday, the Court denied her petition. That's what I expected. The Court hears very few cases at all, and very few specifically in the area of family law, which is generally a matter of state law and varies so much from state to state. Other nonbio moms have also been turned away when they've asked the Court to hear their cases. Refusing to hear a case -- which is called a denial of certiorari in legal-speak -- has no legal significance. In other words, it doesn't add anything to the New York ruling or make it more meaningful in any way. It just leaves it alone.
Labels:
defining parentage,
LGBT parents
This child has two fathers....sort of...and this is not a story about gay dads
A California appeals court has provided us with yet another story of complex family life to which law must respond. The case is Citizens Business Bank v. Carrano. Doesn't sound like a family law case, does it? Turns out it's a case about inheritance, specifically about the terms of a trust. The law of wills, trusts, and estates is often really family law....it's just that someone is dead.
In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.
The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.
The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.
The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.
So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.
There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.
As I often tell my family law students, I couldn't make up these facts....
In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.
The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.
The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.
The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.
So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.
There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.
As I often tell my family law students, I couldn't make up these facts....
Labels:
defining parentage,
inheritance law
More conservative state supreme court judges could hurt LGBT family law
By now everyone knows that the three Iowa Supreme Court justices up for a retention election all lost their bids to remain on the court, the result of a coordinated, highly financed campaign to send a message against their vote for marriage equality. In a segment on Democracy Now this morning, Adam Skaggs of the Brennan Center for Justice puts the Iowa vote in the larger context of judicial elections across the country. His report on the funding of state court judges elections is a sobering look at both the present and the future.
There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts. I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.
Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.
It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.
This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.
There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts. I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.
Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.
It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.
This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.
British Columbia Attorney General's White Paper proposes explicit recognition of three parents
Hats off to New Jersey lawyer Bill Singer for alerting me to the article in yesterday's Vancouver Sun on an aspect of family law reform under consideration in British Columbia. While the article focuses largely on the possibility of a child having three legal parents, the White Paper released by the province's Attorney General in July, proposing a complete overall of the Family Law Act, is much broader than that. The new provisions would establish legal parentage in a variety of situations relevant to gay men and lesbians having children through assisted conception.
Here's a summary of the relevant parentage provisions:
Here's a summary of the relevant parentage provisions:
- When a woman bears a child through assisted conception (but not surrogacy), her partner -- married or unmarried, same-sex or different-sex -- is presumed the child's other parent. The partner can overcome the presumption by proving that s/he did not consent to be the child's parent before the assisted conception took place.
- Sperm and egg donors are not parents.
- A woman who give birth is a parent, regardless of whether she is genetically related to the child.
- A birth mother who agrees to act as a surrogate can sign an agreement with the intended parent so stating before conception. After birth she can (but cannot be forced to) turn the child over to the intended parents and give her written consent that they are the child's parents. The intended parents are then the child's legal parents from birth.
- A donor of sperm or eggs, or a surrogate mother, can make a written agreement prior to assisted conception that the child will have three parents. In the case of a sperm or egg donor, the parents would be the donor, the birth mother, and the birth mother's partner. In the case of a surrogate mother, the parents would be the intended parents and the birth mother.
This White Paper is unusual in its explicit attention to the possibility of a child having more than two parents. Quebec has had a statute since 2002 that makes a woman's partner the legal parent of a child born through assisted conception, but it does not allow for a child to have three legal parents. (On the other hand, Quebec allows "assisted conception" to include conception through sexual intercourse where the man and the woman agree in advance that the man will not be the child's legal parent; the British Columbia proposal, like all other statutes I know, sharply differentiates parental status based on method of conception.) The District of Columbia statute does not explicitly state that a child can have three parents, but it does provide that a sperm donor is a parent if the mother and donor have a written agreement saying so, and it also provides that the birth mother and her partner are the child's parents if they consent in writing, so the statute is best read as allowing for three parents if all agreed so state in writing.
I really like the proposal's treatment of surrogacy, and here I know I diverge from some colleagues I highly respect. Surrogacy is permitted, but a birth mother can change her mind until after the child is born. And this is true even if she is a "gestational" surrogate -- one who is not genetically related to the child. I believe that caring for a fetus in utero is a form of parenting and the law should recognize that. The intended parents, however, cannot change their minds once they have signed the surrogacy contract. Once the child is born and the birth mother signs away her rights to the intended parents, they are the parents from the moment of the child's birth. This way the surrogate need not fear that she will be required a child should the intended parents later change their minds.
I know many people support strict enforcement of surrogacy contracts, but I like the British Columbia proposal for reasons other than respect for gestating a child. Surrogacy is best practiced by agencies that carefully screen and counsel potential surrogates; those careful practices reduce to practically zero the possibility that the woman bearing the child will change her mind. All the incentives should go in that direction, and the BC proposal does that.
Labels:
defining parentage,
surrogacy
Delaware court rules man who did not know his girlfriend would use his semen to get pregnant is not a legal parent
Biology is neither necessary nor sufficient to create a legal parent. A new Delaware Supreme Court case, Adams-Hall v. Adams, illustrates this point in an unusual context and gives food for lots of thought.
Christine Adams-Hall and Robert Adams were in a sexual relationship. In November 2007, Christine told Robert she was pregnant with his child. She asked him for a semen sample, alleging that she wanted to have it tested to see if Robert was a carrier of cystic fibrosis. She asked for another sample in February 2008, telling Robert there had been blood in the first sample. Later, Robert contacted Christine's obstetrician, who told him that an intra-uterine insemination procedure had been successfully used in February 2008 to produce Christine's pregnancy.
When the baby was born, Robert filed a petition to determine parentage, and the trial judge ruled he was not a legal parent because he had not signed a written consent to Christine's insemination with his semen, per the Delaware parentage statute that says a man who does consent to a woman's insemination in writing, with the intent to be a parent, is a parent. The trial judge believed Robert's testimony that his sexual relationship with Christine ended in January 2008 (she claimed it was April).
At first read, this opinion makes complete sense. Christine deceived Robert into providing a semen sample for her insemination and so he "shouldn't" have a legal obligation to a child he did nothing to conceive. But remember that he gave the first sample in November 2007. Had pregnancy resulted then, he would certainly have been considered the father, as he admitted having a sexual relationship with Christine until January 2008. No court would have parsed which method of conception actual created the pregnancy. Plus, the law books are filled with cases in which men having sexual intercourse with women claiming to be infertile or on the pill have been required to support children born to those women when it turns out the woman was deliberating lying in an attempt to conceive a child, knowing the man would not agree.
The theory in those deception cases is that the child shouldn't suffer, translated into the child should have access to the father's economic resources. Well that theory applies equally well to the child Christine bore. Yet the court does not discuss it. The donor insemination statute the court cites is not, after all, the only method by which a man becomes a legal parent. An unmarried mother can normally bring a parentage action against a child's biological father based on biology. That the court ruling is silent on this part of the state's parentage statute is notable.
I agree with the court's ruling. But I believe a woman should have to option to conceive a child with no legal father, even by sexual intercourse. It's just that the courts don't usually buy that. And I think of what would have happened in the following circumstance: Christine bears child without Robert's knowledge and never files a parentage action; he later finds out that the child was conceived with his semen and he wants a relationship with his biological child and he files for visitation rights and the imposition of a child support order (or even for custody!). I'm willing to bet the court would say he was a parent.
If the take away from this case is that intent matters, then I am all for it. And if the takeaway is that the best interests of the child (never mentioned in the case) does not require a legal connection to a biological progenitor, I'm for that as well. But then intent should matter without the deception part, and it should be a lot easier than it generally is for a woman to have a child with no legal father. And intent should strongly figure in the creation of legal parentage, something the same Delaware Supreme Court rejected in a case involving a lesbian couple raising a child legally adopted by only one of them (see my post here). That case inspired the legislature to create a path to parentage based on intent and function (see my post here).
It can't just be that the three male judges on this Delaware Supreme Court panel identified with the indignity of Robert's situation, can it?
Christine Adams-Hall and Robert Adams were in a sexual relationship. In November 2007, Christine told Robert she was pregnant with his child. She asked him for a semen sample, alleging that she wanted to have it tested to see if Robert was a carrier of cystic fibrosis. She asked for another sample in February 2008, telling Robert there had been blood in the first sample. Later, Robert contacted Christine's obstetrician, who told him that an intra-uterine insemination procedure had been successfully used in February 2008 to produce Christine's pregnancy.
When the baby was born, Robert filed a petition to determine parentage, and the trial judge ruled he was not a legal parent because he had not signed a written consent to Christine's insemination with his semen, per the Delaware parentage statute that says a man who does consent to a woman's insemination in writing, with the intent to be a parent, is a parent. The trial judge believed Robert's testimony that his sexual relationship with Christine ended in January 2008 (she claimed it was April).
At first read, this opinion makes complete sense. Christine deceived Robert into providing a semen sample for her insemination and so he "shouldn't" have a legal obligation to a child he did nothing to conceive. But remember that he gave the first sample in November 2007. Had pregnancy resulted then, he would certainly have been considered the father, as he admitted having a sexual relationship with Christine until January 2008. No court would have parsed which method of conception actual created the pregnancy. Plus, the law books are filled with cases in which men having sexual intercourse with women claiming to be infertile or on the pill have been required to support children born to those women when it turns out the woman was deliberating lying in an attempt to conceive a child, knowing the man would not agree.
The theory in those deception cases is that the child shouldn't suffer, translated into the child should have access to the father's economic resources. Well that theory applies equally well to the child Christine bore. Yet the court does not discuss it. The donor insemination statute the court cites is not, after all, the only method by which a man becomes a legal parent. An unmarried mother can normally bring a parentage action against a child's biological father based on biology. That the court ruling is silent on this part of the state's parentage statute is notable.
I agree with the court's ruling. But I believe a woman should have to option to conceive a child with no legal father, even by sexual intercourse. It's just that the courts don't usually buy that. And I think of what would have happened in the following circumstance: Christine bears child without Robert's knowledge and never files a parentage action; he later finds out that the child was conceived with his semen and he wants a relationship with his biological child and he files for visitation rights and the imposition of a child support order (or even for custody!). I'm willing to bet the court would say he was a parent.
If the take away from this case is that intent matters, then I am all for it. And if the takeaway is that the best interests of the child (never mentioned in the case) does not require a legal connection to a biological progenitor, I'm for that as well. But then intent should matter without the deception part, and it should be a lot easier than it generally is for a woman to have a child with no legal father. And intent should strongly figure in the creation of legal parentage, something the same Delaware Supreme Court rejected in a case involving a lesbian couple raising a child legally adopted by only one of them (see my post here). That case inspired the legislature to create a path to parentage based on intent and function (see my post here).
It can't just be that the three male judges on this Delaware Supreme Court panel identified with the indignity of Robert's situation, can it?
New York court fails the children of same-sex couples; don't be fooled by press reports to the contrary
Debra H. is the mother of her six-year-old son, a child she raised with Janice R,. her ex-partner who is the child's biological mother. So ruled the New York Court of Appeals today (and that's the highest court in NY, so their decision is final). For that reason, press reports, at least the early ones, refer to the opinion as expanding the rights of gay parents.
Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.
New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.
The New York court had other options. The relevant statute allowed a "parent" to file an action for custody or visitation. The statute did not define "parent." There is no universal definition of what makes someone a legal parent. That has always been a matter of law, often decided by courts. In fact, it is the job of courts to interpret the words in statutes. The increased use of assisted reproductive technologies, for straight and gay people alike, has challenged courts to find an appropriate definition of "parent" when genetics, gestation, intent, and function are divided up among multiple individuals. The New York court was simply not up to the challenge.
Instead, the majority extolled the value of "bright line" rules. But I have news for those judges: The brightest line rule of all is the rule that a man is the father of the children born to his wife and no other children. That was, in fact, the rule for centuries. In 1972, the US Supreme Court said it was an unconstitutional rule, and specifically said that there are "higher values than speed and efficiency." In California, a man or a woman who receives a child into his/her home and holds the child out as his/her own is presumptively a parent. In Kentucky, a child has a second mom if "the legal parent has voluntarily chosen to create a family unit and to cede to [that person] a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child." In Oregon, a woman who consents to her partner's insemination with the intent to be a parent of the resulting child is a parent of that child. Those are all court rulings reflecting the reality of the lives of the children involved, not some fictional "bright-line" rule.
New York does not have marriage, civil union, or statewide domestic partnership for same-sex couples. Responding to the decision today, Empire State Pride Agenda included the following in their press release: "This case demonstrates why New York State needs to pass marriage equality legislation." No it does not. Nothing should be proposed that would further divide children of married same-sex couples from children of unmarried same-sex couples.
This case demonstrates that the legislature needs to pass a law along the lines of the DC or New Mexico parentage acts or the Delaware de facto parent statute. DC also has a de facto parent statute that does not create parentage for all purposes but does allow someone in Debra H.'s position to obtain custody or visitation (and pay child support). I hope ESPA lobbies hard for such measures and leaves marriage out of it.
One of the odder aspects of today's ruling is the companion case of H.M. v E.T., concerning the obligation of a nonbio mom to pay child support. The majority ruled that the Family Court does have jurisdiction to hear a child support action, even though the statutes refer to "parents" supporting their children. The court did not actually rule that the nonbio mom in that case was a parent; it simply said the Family Court could consider the matter. It is in Debra H. that the court hints that the doctrine of equitable estoppel, a concept based on not allowing someone to walk away from circumstances that s/he created and others relied upon, can create a support obligation. Yet in Debra H. the court explicitly rejected equitable estoppel as the basis for continuing a child's emotional relationship with a nonbiological parent through custody or visitation. It makes little doctrinal sense, and even less sense to a real, live child.
The New York legislature has to act. If it doesn't, it will have the suffering of countless New York children on its hands.
Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.
New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.
The New York court had other options. The relevant statute allowed a "parent" to file an action for custody or visitation. The statute did not define "parent." There is no universal definition of what makes someone a legal parent. That has always been a matter of law, often decided by courts. In fact, it is the job of courts to interpret the words in statutes. The increased use of assisted reproductive technologies, for straight and gay people alike, has challenged courts to find an appropriate definition of "parent" when genetics, gestation, intent, and function are divided up among multiple individuals. The New York court was simply not up to the challenge.
Instead, the majority extolled the value of "bright line" rules. But I have news for those judges: The brightest line rule of all is the rule that a man is the father of the children born to his wife and no other children. That was, in fact, the rule for centuries. In 1972, the US Supreme Court said it was an unconstitutional rule, and specifically said that there are "higher values than speed and efficiency." In California, a man or a woman who receives a child into his/her home and holds the child out as his/her own is presumptively a parent. In Kentucky, a child has a second mom if "the legal parent has voluntarily chosen to create a family unit and to cede to [that person] a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child." In Oregon, a woman who consents to her partner's insemination with the intent to be a parent of the resulting child is a parent of that child. Those are all court rulings reflecting the reality of the lives of the children involved, not some fictional "bright-line" rule.
New York does not have marriage, civil union, or statewide domestic partnership for same-sex couples. Responding to the decision today, Empire State Pride Agenda included the following in their press release: "This case demonstrates why New York State needs to pass marriage equality legislation." No it does not. Nothing should be proposed that would further divide children of married same-sex couples from children of unmarried same-sex couples.
This case demonstrates that the legislature needs to pass a law along the lines of the DC or New Mexico parentage acts or the Delaware de facto parent statute. DC also has a de facto parent statute that does not create parentage for all purposes but does allow someone in Debra H.'s position to obtain custody or visitation (and pay child support). I hope ESPA lobbies hard for such measures and leaves marriage out of it.
One of the odder aspects of today's ruling is the companion case of H.M. v E.T., concerning the obligation of a nonbio mom to pay child support. The majority ruled that the Family Court does have jurisdiction to hear a child support action, even though the statutes refer to "parents" supporting their children. The court did not actually rule that the nonbio mom in that case was a parent; it simply said the Family Court could consider the matter. It is in Debra H. that the court hints that the doctrine of equitable estoppel, a concept based on not allowing someone to walk away from circumstances that s/he created and others relied upon, can create a support obligation. Yet in Debra H. the court explicitly rejected equitable estoppel as the basis for continuing a child's emotional relationship with a nonbiological parent through custody or visitation. It makes little doctrinal sense, and even less sense to a real, live child.
The New York legislature has to act. If it doesn't, it will have the suffering of countless New York children on its hands.
New York draws line between "legitimate" and "illegitimate" children of lesbian couples. I want to throw up.
I confess that wanting to throw up is not a rationally sound or doctrinally astute reaction to a court ruling. I don't care. There is no other response I can have to today's ruling from the highest court in New York (the New York Court of Appeals) that a child born to a lesbian couple who are married or in a civil union has two parents while a child born to an unmarried/not unioned couple has one parent unless the nonbiological mom adopts that child.
Over forty years ago the US Supreme Court first found unconstitutional a state law dividing children into "legitimate" and "illegitimate." It is widely accepted now that children should not suffer because their parents do not marry. Widely accepted, that is, except when it comes to the children of same-sex couples. New York now joins Massachusetts in making this distinction. It's a travesty.
Stay tuned as I blog in more detail later about the court's ruling, and the companion case ruling that a nonbiological mother may be required to pay child support.
Over forty years ago the US Supreme Court first found unconstitutional a state law dividing children into "legitimate" and "illegitimate." It is widely accepted now that children should not suffer because their parents do not marry. Widely accepted, that is, except when it comes to the children of same-sex couples. New York now joins Massachusetts in making this distinction. It's a travesty.
Stay tuned as I blog in more detail later about the court's ruling, and the companion case ruling that a nonbiological mother may be required to pay child support.
Non-bio dad win in Colorado bodes well for non-bio moms
A Colorado Appeals Court ruled earlier this month that a man with a six-year father-child relationship was the child's parent for all legal purposes, including joint legal custody and visitation. Although it's not obvious that such a case would be a win for the children of lesbian couples, in fact the basis for the court's decision is applicable by analogy to the situation in which a non-bio lesbian mom raises a child with the child's bio mom.
Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.
The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.
This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.
Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.
The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.
This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.
Michigan court finds nonbio mom a parent if evidence supports agreement with bio mom
Last month I blogged about Renee Harmon's efforts to maintain her relationship with the 10 year old girl and 7 year old twin boys born during her 19 year relationship with their biological mother, Tammy Davis. Well last week, Michigan Family Court Judge Kathleen McCarthy ruled that Renee will have the opportunity to prove that "an agreement was made to bring these children into this relationship to be jointly raised by these parties." If she can show this by clear and convincing evidence, the court will hold a hearing on custody based on the children's best interests. (To read the court ruling, click on this news story and then on the PDF link to the right of the story.)
Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.
The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.
The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.
According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.
Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:
Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.
Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.
The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.
The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.
According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.
Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:
There is now a significant body of evidence documenting that ... what's important for children's development and adjustment is the quality of the parenting that they obtained from the people who are raising them, and that the gender is not one of those important dimensions.
Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.
Maryland misses the chance to protect the children of same-sex couples
Two years ago, the highest court in Maryland ruled that the state did not recognize "de facto" parents. Thus, when a same-sex couple raises a child as two parents and then splits up, only the parent who gave birth to the child or adopted the child has the right to custody; the other parent is a legal stranger, no different from a relative, friend, or neighbor. The court's opinion invited the Maryland General Assembly to change the state's law through a statute.
Well, the General Assembly session ended yesterday without passing a promising bill that defined "de facto" parents and gave them the right to custody and visitation and the obligation to pay child support. Both the Senate and the House held hearings on the bill, which very much resembled legislation enacted in Delaware last year.
The votes to pass the bill were probably there, but it never made it to a floor vote. After Maryland Attorney General Doug Gansler issued an opinion that the state recognizes same-sex marriages validly performed elsewhere (which came coincidentally on the same day the Senate held the hearing on the "de facto" parent bill), a state senator indicated that if the "de facto" parent bill came to the floor he would submit an amendment stating that Maryland does not recognize same-sex marriages from elsewhere; then every senator would have had to go on record on that issue. With that threat at hand, bill sponsor Senator Jamin Raskin pulled the bill from consideration.
The "de facto" parent bill was not only about children of same-sex couples, and it had support from organizations and individuals seeking to protect the relationships all children have with the people they consider their parents. But apparently the subject of same-sex marriage was considered close enough to the subject of the bill that the amendment would have been procedurally proper, and that was enough to kill the bill.
The politics of same-sex marriage derailed this year's efforts. The children of Maryland go unprotected for another year.
Well, the General Assembly session ended yesterday without passing a promising bill that defined "de facto" parents and gave them the right to custody and visitation and the obligation to pay child support. Both the Senate and the House held hearings on the bill, which very much resembled legislation enacted in Delaware last year.
The votes to pass the bill were probably there, but it never made it to a floor vote. After Maryland Attorney General Doug Gansler issued an opinion that the state recognizes same-sex marriages validly performed elsewhere (which came coincidentally on the same day the Senate held the hearing on the "de facto" parent bill), a state senator indicated that if the "de facto" parent bill came to the floor he would submit an amendment stating that Maryland does not recognize same-sex marriages from elsewhere; then every senator would have had to go on record on that issue. With that threat at hand, bill sponsor Senator Jamin Raskin pulled the bill from consideration.
The "de facto" parent bill was not only about children of same-sex couples, and it had support from organizations and individuals seeking to protect the relationships all children have with the people they consider their parents. But apparently the subject of same-sex marriage was considered close enough to the subject of the bill that the amendment would have been procedurally proper, and that was enough to kill the bill.
The politics of same-sex marriage derailed this year's efforts. The children of Maryland go unprotected for another year.
Labels:
defining parentage,
Maryland
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