Non-Bio Moms Lose One, Win Two—Maybe

Custody cases involving non-bio moms have been in the news lately, including this just in from Massachusetts:

The Massachusetts Supreme Judicial Court ruled Friday that a lesbian non-bio mom had no parental rights over the five-year-old daughter she and her former partner had agreed to raise together. The women separated before marriage was an option for them. Although they were listed as “Parent 1” and “Parent 2” at the fertility clinic they used, the non-bio mom never adopted the child. The Boston Globe relates the Court’s position:

Same-sex couples who fall out of love while raising children must abide by the same legal rules as any other dissolving couples: What counts in the court system are birth certificates, marriage licenses, adoption papers, or proof that you share equally in the nurturing of the youngsters.

The Globe goes on to say:

A lesbian from Middlesex County put forward some novel legal theories to establish her parental role. She said she deserved to be a legal parent because she and her former partner had effectively formed an agreement to raise a child together. She also argued she should be, at least, a de facto parent with visitation rights, because what she lacked in time with the child she gave in money as the primary breadwinner.

The Court disagreed:

The court also said the woman, who toiled long hours as codirector of a nonprofit organization, did not spend enough time caring for the child to establish her parental rights while the biological mother tended to most of the caretaking.

Novel legal theories? Let’s see . . . how many opposite-sex couples agree to have a child together, with one person as the primary caregiver and the other the primary breadwinner? How many employed straight men (and it is primarily men) see their children only briefly each day, and some days not at all?

The bio mom now plans to end the temporary court-mandated visitation.

As I related in my Weekly Political Roundup, however, on November 29 the Pennsylvania Supreme Court let stand a lower court ruling awarding custody of twins to their non-biological mother, whom they said was a more fit parent that her former partner, the biological mother.

That same week, an appeals court in Virginia ruled that the state has to cede jurisdiction to Vermont in a case granting visitation to the former Vermont-civil-union partner of a Virginia woman. The Washington Blade has an interview with the non-bio mom, Janet Jenkins. In it, Jenkins tells of her custody battle, including her former partner’s use of both “ex-gay” groups and the conservative Liberty Counsel (affiliated with Rev. Jerry Falwell’s Liberty University) to help establish her rights.

Although the Virginia court found in the non-bio mom’s favor, her battle is not yet over. In January her civil union will legally end and a court will decide permanent custody of her child. An attorney for Lambda Legal says the case could end up before the U. S. Supreme Court. The case represents what I foresee as a growing wave of interstate custody and divorce entanglements. A “leave it to the states” strategy of LGBT relationship rights only goes so far. Jenkins has not seen her daughter, now four, in two years.