Tuesday, August 23, 2005

California Leads the Way Again - Lesbian Parental Rights/Duties

Yesterday, three extraordinary rulings were issued by the California Supreme Court, which seems to be finding its groove now that the strident voice of Janice Rogers Brown has been promoted to the level of her own dogma and moved to the DC Circuit, confirming, at least for now, that gay parents are parents even when they are no longer "married" parents.

The Court issued three decisions yesterday, in the cases of K.M. v. E.G., Elisa B. v. Superior Court and Kristine H. v. Lisa R. confirming that lesbian mothers who participate in the birth of, and rear, children born to their partners during marriage (or civil commitment or even just committed loving relationships) remain those childrens' parents - with parental rights and parental responsibilities that survive the breakup of the relationship:

California Affirms Status of Non-Custodial Lesbian Mothers as Parents

In Elisa B. the Court found that the same rules that apply to heterosexual deadbeat parents apply to deadbeat gay and lesbian parents too. Specifically, the Court found that a lesbian mother who met all the criteria for parentage under the Uniform Parentage Act ("UPA") except for the biological relationship part was indeed liable to the County of El Dorado for repayment of TANF (formerly, welfare) support payments made to the custodial mother.) The Court rejected Elisa B's arguments that because there was no formal domestic partnership or adoption of the children, she could not be held liable to pay child support to the twins that she along with her former partner purposefully conceived, breastfed together, and raised before their relationship went south. It found that a central purpose of the Uniform Parentage Act was to eliminate defenses to parental obligations based on the marital status of parents, and found that California law expressly mandated application of its tests to governing presumptive fatherhood to mothers to the extent practicable. The court made clear that Elisa B. could not hide -- now that it was convenient for her pocketbook -- behind her status as a lesbian mother with no registered domestic partnership and no biological relationship to the minor children. These meant diddly when it came to her duty to support her children. Since this is the same outcome that Elisa B. would have faced had she been Edward B., it's nice to see that the law can indeed work in a non-discriminatory fashion where gay and lesbian parents are concerned. As the Elisa B. court noted:

Declaring that Elisa cannot be the twins’ parent and, thus, has no obligation to support them because she is not biologically related to them would produce a result similar to the situation we sought to avoid. . . of leaving the child fatherless. The twins in the present case have no father because they were conceived by means of artificial insemination using an anonymous semen donor. Rebutting the presumption that Elisa is the twins' parent would leave them with only one parent and would deprive them of the support of their second parent.. . . [T]the Legislature implicitly recognized the value of having two parents, rather than one, as a source of both emotional and financial support, especially when the obligation to support the child would otherwise fall to the public.

(Just to make sure folks were clear, the Court expressly disaffirmed all its earlier precedents involving lesbian mothers, all of which had held that a non-biological mother had no parental rights over the objection of the biological mother.)

Who says that the law doesn't eventually catch up with common sense?

In the K.M. case, the question was whether a lesbian mother who had provided the ova to her registered domestic partner from which their twins were born was the child's mother under the UPA. This case was forced to confront cases involving surrogate parentage, which had routinely relied on a California statute which says that a man's contribution of sperm to an artificial insemination as a donor does not make him the legal father of the resultant child under the Uniform Parentage Act unless he is married to the mother. In this case, there was a written form IVF contract signed by K.M. prior to the birth relinquishing legal right to the children upon separation. Guess what? She changed her mind after separation, and filed a petition to establish parentage to her children. The Court held that the exception for IVF sperm donors did not apply to egg donors who otherwise met the tests for presumptive parentage any more than it applied to sperm donors; i.e. it did not apply where a lesbian parent donated eggs to a registered domestic partner. In this case, the Court treated K.M. and her former partner the same as a married couple who elected to use IVF, and vested legal parentage in each of them, again upholding the principle that a child is entitled to two legal parents if at all possible, absent unfitness.

It was this case that directly, and clearly articulated that, yes, children can have two legal mothers - at least in this state:

It is true we said in Johnson that “for any child California law recognizes only one natural mother.” But as we explain in the companion case of Elisa B. v. Superior Court, supra, this statement in Johnson must be understood in light of the issue presented in that case; “our decision in Johnson does not preclude a child from having two parents both of whom are women.”

Finally, in Kristine H., the Court was faced with a pre-birth, stipulated court order that was voluntarily sought and obtained by both mothers declaring them each to be the legal parents of the child for the purposes of the hospital's issuance of a birth certificate when it was time. Kristine's partner, Lisa, was listed as "father" on the child's birth certificate in accordance with the court order.

Naturally, as is always the case in these family law cases, the happy family broke up and the tug-o-war using the child as emotional proxy began just as it does with "straight" couples. Kristine, who had given birth, moved to set aside the court order and declare her the exclusive legal parent of the child, on the grounds that since the order was issued before the birth of the child, the court lacked the subject matter jurisdiction to issue it.

The Court gave her the same procedural dropkicking that it routinely hands out to other folks, including parents, who seek out and obtain legally binding stipulations and then change their minds when their prior decisions become emotionally inconvenient for them.

Estoppel lives.

Now, these decisions are extraordinary only because of their larger context -- the Court is expressly stating that legal parenthood can indeed rest with gays and lesbians even over the objection of their former partners and even where there is no "biological link". It is therefore expressly treating lesbian parents in the same fashion as everyone else. But for the fact that the country is currently gripped with "anti-gay backlash" to the point of complete stupidity, these would not be all that memorable. But of course they are memorable because the nation is currently so gripped.

To me, these decisions all have an unwritten subtext of common sense that perhaps someday the courts will be brave enough to write: Where children are concerned, it is irrelevant how they got here - what is relevant is that they are here, it is the job of that state to ensure a parent-child relationship with both its parents, and all the rights and responsibilities for each parent which that entails.

In our increasingly theocratic society, one has to celebrate when common sense -- and well established principles of jurisprudence -- prevail despite the facile use of legal arguments that take advantage of the societal unwillingness to hold gays and lesbians as equals (and in each of these cases, that was indeed the unspoken issue; the facile use of laws disfavoring gay parental rights to try to get out of child support in Elisa B. is particularly nasty.)

Ignore reality at your peril, when it comes to law. Despite prejudices, and a speed of change that is glacial, it does indeed usually come to grips with, and uphold, reality.

There are many things about law that are Bad. However, even as we are in the middle of a wingnut driven culture war over sexual orientation, the courts are continuing to rely on their old, stodgy methods to further old, stodgy principles. In this case, the two moldy oldie principles that have now enshrined a right for gay parents to parent that is, at least for now, co-extensive with the rights of straight parents are as follows:

Principle One: The best interests of children favor having two loving parents to provide for a child's financial, cultural, emotional and spiritual support.

Principle Two: A parent has an absolute constitutional right to rear his or her child, as child is legally defined rather than biologically defined, absent an affirmative showing of parental unfitness.

The wingnuts of course, are always bent out of shape over Principle number 2 since to them gay=presumptively unfit. Fortunately for everyone, that principle has been well-rejected in the courts, despite politicians continuing to try to bark up the anti-gay legal prejudice tree in as many ways that the human (inhumane, really) mind can devise. All of those efforts always ignore a basic inquiry, which should IMO become progressives' stock in trade: Since Jesus said zip-doo-dah about the subject of homosexuality, and since if God didn't want gay and lesbian people to be parents he'd have made them physically incapable of producing children by any means, what's the religious problem with gay people raising kids? After all, long long LONG before artificial insemination, gay and lesbian parents were having children, including the "Good Old Fashioned Way" (I myself have two friends who used this method; neither stated that they were required to close their eyes and think of England and the parts all apparently worked just fine because babies were born in short order).

While these cases do not address the question of adoptive parental rights which is now the subject of much legislative effort throughout the US, I am reminded of an old saying where law is concerned: As goes California, so goes the nation. If that is the case, then the nation has taken another dramatic step towards meaningful equality, even as the individual circumstances were, of course unhappy ones for the individuals involved (funny how that tends to work, where law is concerned.) And it bodes well, in truth, for the adoptive parental cases to come. Since despite all myth, the states *do* look to each other for how to handle new issues. This is another body of law to look towards, that will hopefully have a meaningful impact long-term.


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