Waldlaw Blog

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.


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