Waldlaw Blog

Saturday, May 28, 2005

Conversations on Children and Contemporary Families

It is time for a national conversation on who is a "parent" and what is a "family." Our traditional, Judeo-Christian definition of "family" is a biological mother and a biological father raising their biological children -- the prototype of a "nuclear" family. This is a definition held dear by many, for many reasons, and one that a broad range of people across the political spectrum are ready to fight hard to preserve. It is a model of family that has worked well for a great number of children, and that represents much that we value as a society. The problem is that it leaves an increasing number of children on the margins. Lesbian and gay families seem to be the poster children for the "destruction" of this model. But lesbian and gay families are only a small sector of the huge number of contemporary families that fall outside the "traditional" family model. When you look at families created through the use of assisted reproductive technologies, adoptive families, foster families and single-parent families, all of whom fall outside the most narrow definitions of what constitutes a "traditional" family, it quickly becomes apparent that "non-traditional" families are a force that can't be ignored. For example: Between 1989 and 1999, the number of babies born per year using assisted reproductive technology in the United States mushroomed from 4,800 to 31,000. In addition, approximately 125,000 children are adopted each year; and approximately 500,000 children are in foster care. Beyond this, according to the 2000 U.S. Census, approximately 28% of children were being raised by single or unmarried parents. In other words, there are a huge number of children being born and/or raised outside the context of the "traditional" family each year. Yet we still cling to our traditional definitions of what constitutes a family. It is time to re-examine these definitions, and to look at the experiences and questions facing the real families around us, and to search for new models that work for more of the children in our midst. Unfortunately, this job of redefining the family is left all too often to the courts. This is not because there are a bunch of activist judges out there seeking to recreate the world in their own image, as Bill Frist would like us to think. It is, instead, because these issues are so complex and controversial that the Legislatures are afraid to act, don't know how to act, are unable to act -- and then the courts are left with real children appearing in front of them and no good rules to go by -- and judges with consciences are forced to act in the interests of those children, even if this means becoming "judicial activists," because the children and their needs to be cared for won't wait. What's the solution? All of us who work with children -- parents, teachers, doctors, lawyers, social workers -- need to be engaging in a conversation about children and contemporary families. We need to be talking with each other about the real issues confronting the real children and families we see in our lives. We need to acknowledge the strengths of the traditional family model, and also recognize its weaknesses. We need to promote a national conversation that addresses the needs of all the children we encounter, not just those that live in "traditional" families. Maybe, if we start talking and refuse to stop, people will actually listen....

Friday, May 27, 2005

A Note about Fish Tanks and Frozen Peas

A few weeks ago, for no apparent reason, our fish tank became so cloudy that it looked like we'd poured milk into it by accident. I changed the filter and changed the water, to no avail. I called the pet store, and was told to put some drops in that would cause the tiny particles clouding the tank to clump into larger particles so the filter could filter them out. I tried it. It didn't work. Then one of our fancy goldfish (named Otis by my older son, in case you're interested) began floating belly-up on the surface. He wasn't dead or dying -- he just had lost his equilibrium and was having trouble staying right-side-up. Being the modern woman that I am, I went on the web and did some research on fancy goldfish, and discovered that many of them have problems with their swim bladders that cause them to float upside-down. (Who knew?!) The solution: FROZEN PEAS. Okay, I know this sounds completely ridiculous. But we started feeding our goldfish frozen peas (organic of course!) once or twice a day, and ... Elton now swims right-side-up and -- this is the part I still can't believe -- the tank is no longer cloudy!! So I am here to report that frozen peas (allowed to defrost before feeding, and popped out of their skins) can not only make your fish swim right-side-up, but can prevent your fish tank from clouding. Wouldn't it be great if all life's problems had such wonderfully zany solutions?? And remember, you heard it on waldlaw....

Wednesday, May 25, 2005

Is it Still a Win if You Win for the Wrong Reasons?

The California Supreme Court heard arguments in 3 lesbian custody cases yesterday morning -- over 3 hours of arguments, without a break. Whew!! All 3 cases involved children born into 2-parent lesbian homes, and raised by both parents for at least 1-1/2 years. In all 3 cases, the lower courts ruled that the children only had one legal parent, thereby giving each child what one attorney characterized as a "parentectomy." Some legal background: Under California law, not just anyone can go to court to request custody of and/or visitation with a child. First, you have to show a legally recognized relationship with the child, generally that of a parent, stepparent or grandparent. In lesbian custody disputes, what has traditionally happened is that the couple has had a baby together and raised that baby for a period of years, but the non-biological mom has not legally adopted the child. When the couple breaks up, the biological mom has taken the position that her ex-partner is not a parent, stepparent or grandparent and therefore has no legal rights. And in every case where this issue has come up in California, in every part of the state, the bio mom has won. Through this process, non-biological lesbian moms have been denied any access whatsoever to children they have helped raise from birth, regardless of the depth of the parent-child bond or the number of years that the family lived together before the break-up. Which brings us to Tuesday's Supreme Court cases. Arguments were fascinating, and I thought most attorneys did well. But what's most interesting to me is: I think that we're going to win these cases, or at least two out of three of them. (In other words, I think that the Supreme Court is going to find that the children have two legal parents in at least two of the three cases -- to me, that's a win.) But from the questions asked by the Justices, and comments made from the Bench, I am concerned that we're going to win for the wrong reasons. Let me explain: there are two completely separate ways to reach the conclusion that a child born to, and raised by, a lesbian couple has two legal moms. One way is to look at the process of how the child was brought into the world. This argument goes like this: when a couple decides together to have a child, and then uses reproductive technologies to cause a child to be conceived with the intent to both be parents, both members of the couple should be held accountable as parents. This seems only fair to the child -- after all, to allow someone to plan for a child, and employ medical assistance to bring about conception of a child, but then walk away from that child because of a lack of a biological connection is just plain wrong -- and it's equally wrong to allow the sole biological parent (if there is one, as there often is with lesbian couples) to cut off her partner, who participated from the planning stage, based on biology. The other way to establish parenthood for two moms is to look at conduct -- the basic "if it looks like a duck and quacks like a duck, it's a duck" approach to determining parentage. Under this theory, a woman who brings a baby home from the hospital and cares for it as a parent, doing everything that a parent does and receiving no financial compensation for the task, deserves legal recognition as a parent. And let me be clear: none of the cases the Court heard yesterday were close on this issue. They involved children with hyphenated last names (generally a pretty good indication of an intent to parent -- I haven't yet given my last name to any children other than my own!), whose medical and school records indicated two mothers and who were equally co-parented by two women until the break-up's occurred. So here's my problem. I like the first theory much, much better. It seems right, and equitable, and unlikely to back-fire. But it's harder to find a basis for it in the language of the California Family Code. So the Court seemed to be leaning toward the second theory, which is easier to ground in the language of the Code. But the second theory is much more of a "slippery slope," especially for single parents. As a parent, I want to be able to bring someone into my home to help with the every day care of my children, and I want that person to develop a strong bond with my children and care for them with love and kindness, but I also want to be able to tell that person to leave if I get sick of having them around, without fear of a custody battle. So this second route to parentage makes me nervous. And there you have my quandary. I desperately want to win these cases. It is what the children involved deserve, and it is right. But I want to win them in a way that creates good law for the rest of us. And clear rules. And protects other children as much as possible. Preferably from birth (which is another problem with the conduct-based approach -- it leaves it unclear who the parents are for some period of months or years, which is not good policy). So I am fervently hoping that the Court will adopt the first approach, or a hybrid of the two, and that we will end up with a good result achieved by a good methodology that helps many more families than those appearing in court yesterday. That would be a good result achieved for the right reasons, and real cause for celebration.

Monday, May 23, 2005

A blog on blogging

Enough folks have asked me why I'm blogging to make it worth responding here. I am blogging for a couple of reasons. First, there is so much going on in my professional world right now, that it's hard to keep up with it all. Gay marriage. Expanding definitions of parenthood. Pending legislation. Cases being argued in the Supreme Court. Traditional methods of publication -- writing editorials and magazine articles, or even posting on my web site -- take time. (Of course I'm doing those things too -- see http://www.waldlaw.net/published_articles.html for my published articles.) It is wonderful to have a way of responding immediately to things that happen that effect my practice, and my clients, without the delays involved in more formal methods of publication. But there's another reason -- blogging is fun!! I am loving having a medium for expressing my thoughts about the topics of the day in a more conversational, less formalistic way than is required by the other media I use. It's great to be able to comment on things without having to write a full-blown, publishable editorial or article. It keeps me fresh, and I hope it keeps my readers entertained. And that brings me to my 3rd reason for blogging: I hope that this site can become a place to host a conversation; that, as more people find the site, there will be reactions to my posts, and reactions to those reactions, and the whole thing can become more interactive. Consider that an invitation....

Thursday, May 19, 2005

marriage equality or equal rights for unmarried couples?

The fight is on for marriage equality, and let me be clear about my position on the issue: lesbian and gay couples absolutely deserve the right to marry. But in my not-so-humble opinion, all couples (LGBT and straight) also deserve the right not to marry, and to have their relationships and families taken seriously nonetheless. I mean, come on folks -- I grew up in the '60's and '70's, was a women's studies major in college (with Honors, I might add!), and now I'm supposed to act like marriage is the equivalent of nirvana? Well, I just can't do it. So when the case comes up, as it is in the California Supreme Court next week, where a country club is denying privileges to unmarried couples that they provide to married couples -- my response is "sue the bastards," but NOT because they are discriminating against lesbians and gay men, who are denied the right to marry -- I say "sue the bastards" for discriminating against all unmarried couples, gay and straight. Let's fight for relationship recognition that includes the wonderful variety of relationships that exist in the world; not pick one "right" way of having relationships and then fight to get into the club. Okay, I admit it, I'm an old feminist. But hey, at least I'm honest about it....

Tuesday, May 17, 2005

Do children born to lesbian couples get to have two legal moms?

Next Tuesday, May 24, the California Supreme Court will hear oral argument on 3 lesbian custody cases. While each case is factually quite different, in each case children were born into the homes of lesbian couples and raised by those couples, jointly, for years. In each case, the children were deeply bonded with each woman. In each case, when the couples broke up, the courts found that the children had only one legal parent, not two. The courts have long strived to make sure that children of heterosexual couples, and even children conceived during casual heterosexual coupling, have two legal parents, regardless of the marital status of the people who conceived them. In a myriad of cases, courts have searched far and wide to find men they could hold accountable as fathers to children who otherwise would be left with only one parent, whether or not those "fathers" have any interest in parenting the children. And California courts, in particular, have bent over backwards to affirm the legal parent-child relationships between men who have acted as fathers and the children they have parented, regardless of whether or not there is a genetic connection. But the basic position on lesbian families has been: if kids have one mom, why should we bother to recognize another? This has been true even in cases where the second mom has lived with the child, supported the child, nurtured the child and created a strong and undisputed parent-child bond with the child, all with the first mom's full knowledge and encouragement. It isn't good for children when one of the parents they rely on for care and support disappears. It doesn't matter to the child whether the disappearing parent is male or female, or whether the disappearing parent is genetically related to the child or not. And it is a tragedy that our courts have not only let this happen to children born to lesbian couples, but in fact have acted as the scalpels that surgically remove the second parents from the children's lives. Let's hope that, when the Supreme Court acts on the cases currently before it, children born to lesbian couples will finally be able to look to our courts for protection. (For more on this topic, go to my website, www.waldlaw.net.)

Tuesday, May 10, 2005

Parental autonomy versus the rights of non-bio parents -- a conflict?

Another interesting decision today. Several years ago, the California Supreme Court ruled that a man who knew he was not a child's biological father but nevertheless fully embraced the role of "father," providing care and support for the child, could be a legal, "natural" father based on his conduct. But that was in the context of a dependency proceeding, where the child's mother had been found unfit and the child was in danger of falling into the foster care system if the man didn't have parental rights. The decision has not been applied to the situation where there already is a fit parent in the home -- until today. Today, the Court of Appeal in San Jose ruled that the fitness of the mother does not figure into the equation, and that a man can be found to be a child's "natural" father who is not the biological father even if the fit mother objects. On the one hand, this case offers the best chance ever of victory for the legion of non-biological lesbian mothers in California who have been told they have no rights to even minimal visitation with the children whose births they helped plan for and whom they have raised, based on their lack of biological connection to the children and the objections of the children's fit, biological mothers to a continued relationship between non-bio mom and child. On the other hand, what does this case say about the right of fit parents to make decisions about who will care for their children, without running the risk of losing parental autonomy through the process? I am particularly concerned about what this decision could do to the rights of single mothers. After all, if a couple decides to have a person live in the home, and help with child-rearing, and fully bond with the child, they still don't run the risk of losing parental rights to this person -- after all, the child already has two parents. But if a single mom brings another person into the home to help raise her child, and allows full bonding to occur, it sounds like she will run the risk of a legal custody battle if at some later date she tries to remove this person from her child's life. I'm not sure whether the good outweighs the bad here or not. Definitely food for thought….

Thursday, May 05, 2005


May 5, 2005 Today my worlds collided. What many people don't know about me is that, while I've made my reputation doing non-traditional family law -- primarily representing LGBT couples having/adopting children -- my background is as a criminal defense attorney. I spent 5 years as a public defender, followed by 10 years handling indigent criminal appeals. And I just finished a semester teaching a criminal law and procedure review course to upper level law students. So criminal defense is in my blood, although I haven't been practicing it for a few years now. That brings us to today. I spent the morning working on my LGBT family law cases, then met a criminal defense colleague for lunch. While I was in his waiting room, the news arrived that the Noel/Knoller decision had just come down. To refresh your memories: this was the dog mauling case where Robert Noel and Marjorie Knoller were keeping large, vicious dogs in their San Francisco apartment and the dogs attacked and killed their lesbian neighbor while she was trying to bring in her groceries. There is no question whatsoever that Noel and Knoller were grossly irresponsible, and I had no issue whatsoever with their being convicted of manslaughter based on gross negligence. But MURDER is generally defined as an intentional killing. And while Noel and Knoller were incredibly irresponsible -- criminally so -- they certainly did not intend to kill anyone with their dogs. So as a criminal lawyer and law professor, this decision makes me very nervous -- it's one of those slippery slopes -- if this is murder, not manslaughter, then what other grossly irresponsible conduct will become murder next, and what will happen to the intent requirement. This case represented many of our worst nightmares. Being attacked by large vicious dogs…. Coming home to find one's lover unexpectedly dead, and having died in so brutal a way…. There are no happy endings possible here. And bad facts have always made for bad laws. I only wonder if, when all is said and done, the price of this murder conviction will have been worth it.