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.
Filed under: Family Creation, Politics and Law
Financial suppport is a function of one’s role as a legal parent. The court found that a child support obligation ARISES OUT OF one’s role as legal parent it does not create that role. To hold otherwise would be the equivalent of saying, I bought, I paid for it, its mine. In a dispute between a straight man and woman over the woman’s bio child conceived using ART would be precisely the same. The court also made clear that in disputes between legal parents financial support will be considered. Theh key is parental rights. Adoption, where available, is the clearer and more preferred method for obtaining parental rights. Adoption eliminates the argument. It is the equivalent of a DNA test. Your either are or you aren’t — the child is either adopted or not adopted. Why one would prefer a system wherein parental rights must be proved through contentious litigation versus a system where there is no question is the question we should all ponder.
[...] The British government has announced fertility law reforms making both partners legal parents when lesbian couples conceive with donated sperm, or gay men use surrogacy. (Compare these recent custody cases involving non-bio moms in the U. S.) The reforms also remove older references to “the need for a father,” thus guaranteeing that lesbians and single women can get IVF and donor insemination services. Public Health Minister Caroline Flint notes, however, “Access to NHS fertility services is based on clinical need. If there is a clinical need for fertility treatment, then the provision of NHS treatment should be considered regardless of the patient’s sexual orientation.” The question remains open, then, as to whether being in a lesbian relationship counts as a “clinical need” for fertility treatment if the woman is otherwise healthy and fertile. (My answer is yes, of course, but I can imagine some will quibble.) [...]
[...] The Utah Supreme Court ruled that non-biological parents do not have the right to seek visitation with children not related by blood. The case involved two lesbian moms who split after planning and raising a child together. The ruling will also apply to unmarried opposite-sex couples who have children together. This doesn’t mean equality, though: the bio-mom’s attorney has argued “biological parents must have the ability to sever both their own and their child’s relationships with those they have chosen not to marry and who have not adopted their child.” Let’s review: same-sex marriage in Utah is illegal. Joint adoption by same-sex couples is illegal. Second-parent adoption may or may not be legal. It’s ridiculous to punish someone for not doing something that is illegal for them to do. This is only the latest in a string of news about non-bio moms’ rights, and one of at least two headline cases where the bio mom is claiming that she is no longer a lesbian. My previous comments apply. Meanwhile, a Utah Senate committee has promoted a bill to the full Senate, similarly limiting non-biological parents’ rights. [...]