Today, Lambda Legal argued before the New York State Court of Appeals on behalf of a non-biological mother after an intermediate appeals court denied her right to seek custody and visitation with, and provide financial support to the child she has parented with her former same-sex partner. ...

Lambda Legal represents Debra H. in her effort to continue to parent the son she and her former partner, Janice R., planned together. The couple agreed they would raise a family together in a two-parent household and conceived their son using in vitro fertilization. Janice promised that Debra would formally adopt their child, and they met with an adoption lawyer prior to their son's birth. In 2003, before he was born, they entered into a civil union in Vermont, which at that time was the most legally significant relationship available to same-sex couples under U.S. law. Debra was by Janice's side throughout labor and delivery and cut their son's umbilical cord; her last name was included in their son's name on his birth certificate. In the years that followed Debra gave him the day and night love, nurture and care of a mother. When it came time for the second-parent adoption, Janice, an attorney, advised Debra "as a lawyer" that they didn't need to get the courts involved and Debra would always be the boy's parent. When the couple's relationship ended in 2006, Debra continued actively to parent her son, who moved with Janice into an apartment only a block away. Debra and her son were together daily, and she often put him to bed.

In May of 2008, when the child was 4 ½ years old, Janice abruptly refused Debra any further contact with him. Debra immediately filed for emergency joint custody and restoration of parental access.

Labels: custody, de facto parenting, donor conception

posted by Imapp Staff at 2:08 AM EMAIL SHARE PRINT

A one-time lesbian couple will have shared custody of the child they had together and raised before splitting up, the Kentucky Supreme Court ruled Jan. 21.

The high court in Frankfort approved the couple's joint custody agreement and ruled that one of the women, Arminta Jane Mullins, acted as a "de facto parent" with her partner, Phyllis Dianne Picklesimer. ...

Picklesimer gave birth to the boy in 2005. The couple filed a joint custody agreement in February 2006 in Garrard County and split up two months later. Picklesimer denied Mullins contact with the boy that September, prompting Mullins to go to court to see the child.

Justice Wil Schroeder wrote for the court's majority that the women made multiple decisions about the child before and after he was born, with Mullins caring for the boy while the couple was together and for five months after they split.

"This would distinguish the nonparent acting as a parent to the child from a grandparent, a baby sitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the same capacity of another parent," Schroeder wrote. ...

Eighteen states recognize "de facto parents" over the objections of fit biological parents: Arizona, Arkansas, California, Colorado, Indiana, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, Utah, West Virginia, Washington and Wisconsin.

Labels: de facto parenting, Kentucky

posted by Eve at 10:00 PM EMAIL SHARE PRINT

In a case that could have far-reaching implications for gay rights, a Santa Cruz woman is seeking to maintain joint custody of 10-month-old twins that she and her former partner, the biological mother of the children, had agreed to raise.

As court battles over the rights of non-biological gay parents garner national attention, the Santa Cruz case contains a complicated wrinkle: The biological mother is now involved in a romantic relationship with the sperm donor, who has joined her in seeking full custody of the boys.

"It's the first case I'm aware of where a lesbian couple in a committed relationship has brought a child into the world, then after breaking up, the biological mother has tried to sub in the biological father," said Deborah Wald, a family law attorney who, along with the National Center for Lesbian Rights, represents the non-biological mother.

"If they won, we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors," Wald said.

The biological parents, Maggie Quale and Shawn Wallace, who now live together, say they should be allowed to fully parent their twins, Max and Levi, without a court order allowing even partial custody to Quale's former partner, Kim T. Smith. They say the civil lawsuit filed by Smith, who declined to comment, has put them in the painful position of asserting their rights while still appearing to support the growing effort to protect the rights of gay parents.

Labels: custody, de facto parenting, donor conception, Fathers

posted by Eve at 10:30 AM EMAIL SHARE PRINT

I’ve been mulling over a recent news story from Australia that someone sent to me. It’s a rather complicated tale.

Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years. During that time, each of them gave birth to a child. Ms. Halifax used sperm from a family friend, identified as Mr. Dalton. That child is now seven. Ms. Fabian used sperm from an anonymous donor. That child, a girl, is the subject of the litigation. She is now three.

The two women separated when the daughter was 20 months old. At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales. Ms. Fabian now wants to return to New South Wales.

Her request to move is being opposed not only by her former partner, Ms. Halifax, but also by a gay male couple. According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton. An Australian court has determined that she should not move while the requests of the various parties are considered. ...

I cannot help but contrast this with the evidence women asserting claims to be de facto parents produce. You can find at least half-a-dozen cases that I’ve discussed on the blog–some where the women won and some where the women lost. But win or lose, the evidence offered by the women I’m thinking of is qualitatively different. It’s far more about the hands-on care offered than about the public acknowledgement.

In truth, it seems to me that the men are claiming rights on a basis akin to holding out. Perhaps that is not so surprising. If you go back and read that earlier post (and the ones that follow) you will see this is a historically male path to parenthood. It makes me wonder if this legacy of gendered family law will find its way into the legal regulation of decidedly modern families.

Labels: Australia, de facto parenting, Fathers, gender, gender differences, Julie Shapiro, motherhood

posted by Eve at 3:45 PM EMAIL SHARE PRINT

A HOMOSEXUAL couple has been granted leave to appear before the Family Court in a bid to gain access to a girl who isn't biologically related to either of them.

The men, who cannot be named, have successfully argued that they are important people in the life of the three-year-old.

The girl, who likewise cannot be named, was not conceived with sperm from either of the men. But her mother was, until last year, in a same-sex relationship with another woman who does have a child conceived with one of the men's sperm. ...

The magistrate accepted the mother's argument that she was "less committed to the non-traditional family arrangement enthusiastically embraced by her former partner". However, she said the mother had encouraged the men to have a relationship with her child while she was with the other woman.

She said the men were "publicly acknowledged as father figures" during the life of the relationship, while both women were the established "mother figures".

Those roles were acknowledged at a naming ceremony, where all four adults affirmed their commitment as "parents" of the child.

The men told the court they were involved in the parenting of both children. They attended the mother's 12-week pregnancy scan, and visited the hospital on the day of the child's birth. All four adults also attended annual gay pride parades, marching in the "family" section.

The men were introduced as "daddy" to friends and family, and were listed as emergency contacts at the child's daycare centre. ...

The child has been living with the four adults in three separate households since March.

Labels: Australia, de facto parenting, donor conception, gay parenting, motherhood

posted by Imapp Staff at 3:29 PM EMAIL SHARE PRINT

...There are a number of different tests you might use to determine who the parents of a child are. Each has strengths and weaknesses, which are discussed elsewhere on the blog. Part of the challenge is that the question arises in so many different situations. ART in particular gives us a whole range of new complications, but there are plenty even without that. ...

Now if you go back over the blog, I think you’ll find instances in which every one of these tests has been deployed. And of course, you can mix and match them. Some people have multiple factors going for them–they intend to have children, they are genetically related to children they give birth to and they act as the children’s parents. Those tend to be easy cases.

The hard cases come when you have competing contestants, or where one person wants to cut another out, as in the new Montana case. One person claims one basis for parenthood, and someone else claims a different one. Or there are cases when no one wants to claim parenthood and we need to find someone. (Not long ago I wrote about a case where a man who had functioned as a father for 13 years sought to sever his relationship with the child by asserting that it turned out he lacked the genetic connection something he apparently knew all along, but never mind that.) How to decide these?

Cases like this seem to me to suggest we have some sort of hierarchy. So, for example, to reach the result the court did in the case I just mentioned (he’s still the father) it had to say that function (and the relationships constructed based on that function) trump biology (by which test he was not the father.) Again, you can look back and find many instances in which one test seems to overcome another.

And I guess this is my present question. Is there some hierarchy and if so, what is it? Actually, I suppose I really mean should there be a hierarchy and if so, what should it be? After all, I’m more concerned with what the law ought to be than with what it is in any particular place (it varies so very widely.)

Labels: adoption, Artificial Reproductive Technology, de facto parenting, donor conception, Julie Shapiro, parenting

posted by Eve at 4:41 PM EMAIL SHARE PRINT

I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four. ...

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

Labels: beyond marriage, de facto parenting, Delaware, donor conception, Nancy Polikoff

posted by Eve at 1:20 PM EMAIL SHARE PRINT

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:
(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 that term is defined in §
1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

Labels: de facto parenting, Delaware

posted by Imapp Staff at 1:12 PM EMAIL SHARE PRINT

A woman whose same-sex partner gave birth to a child does not have standing to assert parental rights after the couple broke up, a New York state appeals panel ruled Thursday in an unsigned, unanimous opinion.

The Appellate Division, 1st Department, ruling, Debra H. v. Janice R., 106569/08, reversed a decision by now-retired Justice Harold B. Beeler ordering a hearing to determine if Debra H.'s emotional and financial relationship with the 5-year-old boy, M.R., was tantamount to that of a parent.

Beeler had rejected the contention of the biological mother, Janice R., that the case was controlled by the Court of Appeal's 1991 ruling in Allison D. v. Virginia M., 77 NY2d 651, where former Chief Judge Judith S. Kaye had been the sole dissenter.

In Allison D., the majority had narrowly construed a state law allowing "parents" to assert custodial or visitation rights as being limited to either biological or adoptive parents. ...

The panel found that the record "indicates" that Debra H. had a "loving and caring" parental relationship with the child during the 2 1/2 years the couple lived together after Janice R. gave birth to M.R.

Nonetheless, without having adopted him, the panel concluded that Debra H., as the nonbiological parent, lacked standing to sue for custody and visitation.

Debra H., a management consultant, and Janice R., a solo practicing attorney, began an intimate relationship in early 2002 and started living together about a year later. Through artificial insemination, Janice R. gave birth to a baby boy, M.R., on Dec. 8, 2003.

The couple had registered in New York City as domestic partners and entered into a civil union in Vermont.

Labels: de facto parenting, donor conception

posted by Imapp Staff at 12:17 PM EMAIL SHARE PRINT

In a decision showing the uneven progress that has been made in establishing parental rights for same-sex co-parents, the Kentucky Court of Appeals ruled in Tilley v. Kilgore, 2009 Westlaw 485063, that a lesbian co-parent lacks standing to seek joint custody of the children she and her former partner were raising. The unanimous February 27 ruling means that the court will never consider whether the best interests of two young children would be served by preserving a parental role for both of the women. ...

The court found that under the relevant Kentucky statute, somebody who is neither a biological or adoptive parent of a child can only seek custody in one of three ways: by proving she is a de facto parent, by showing that the child’s legal parent is unfit, or by showing that the legal parent has expressly waived her “superior right to custody.”

The court found none of these exceptions applicable. To be a de facto parent, Tilley would have to meet the statutory requirement that she had served as the primary caregiver for the children. In this case, Judge Clayton observed, “Since both Kilgore and Tilley raised these children, there was no single primary caregiver. Tilley cannot be a de facto custodian because she provided for the children next to the biological parent and not in place of the biological parent.”

Labels: de facto parenting

posted by Eve at 4:59 AM EMAIL SHARE PRINT

The state Supreme Court has ruled that a lower court judge erred in granting a lesbian joint custody of her former partner's adopted daughter. ...

The Supreme Court held that, under Delaware law, a person who is considered a 'de facto' parent of a child does not have the same rights as a legal parent, and thus is not entitled to custody.

Labels: adoption, de facto parenting

posted by Eve at 11:36 AM EMAIL SHARE PRINT