Waldlaw Blog

Sunday, June 26, 2005

Happy Gay Day!

For the first time since they were little, I took my children to yesterday's LGBT Freedom Day Parade in San Francisco. We rode the subway downtown, and came upstairs into the middle of the "Dykes on Bikes" (formally called the "Women's Motorcycle Contingent" -- but how uncreative is that?!). My kids' reaction -- TOO LOUD!! The Dykes were followed by "Mikes on Bikes" -- men on bicycles, in colorful costumes -- and one "Tyke on a Bike," riding on the back of her dad's bike. Much quieter.... We found a place we could squeeze in along the fence line, and watched the parade go by for a while. It seemed smaller this year -- not fewer contingents, but fewer people in them. Maybe it's my imagination. Anyway, we watched and waited for Our Families Coalition to appear, along with all the elementary school contingents, then jumped in. It was a delight to be with so many LGBT families, including many friends and clients, and my kids enjoyed the actual marching part much more than the watching part. What struck me through it all was the extent to which none of this is a big deal for our kids. They go to the parade and see ... a parade. Not an important political event, not something to be either proud or scared of ... just a parade. I actually took a few minutes to explain to my sons that the reason for gay pride events is the prejudice that exists against gay people in many places, and that not every city has a gay pride parade. Their attitude was "sure, mom -- now can we get back to having fun?!" So, here's to the next generation who, at least in San Francisco, sees our gay pride parade in the same light as our Chinese New Year parade, our Carnival parade, and all the other parades we throw in this colorful city to honor our many, varied communities. As my ancestors would say, "from their lips to God's ear"....

Thursday, June 23, 2005


For the first time in California history, a Court of Appeal just ruled that a non-biological lesbian mother has the right to claim legal parentage based on her established parental relationship with the child she and her partner jointly conceived and raised for over two years. This may sound like common sense to some of you, but it is a huge victory for those of us who have spent the past couple of decades losing these cases. Some background: A couple of years ago, my phone rang. It was a woman named Angela, calling from Los Angeles, and I honestly don't even remember how she got my name, although it probably was through the National Center for Lesbian Rights. Anyway, she and her partner had had a child by artificial insemination, and had raised the child together for a couple of years before separating. Angela had always provided health insurance for the child, had claimed the child on her taxes, and had continued to support the child even after the break-up. For a brief period -- while the child was placed in dependency proceedings due to the state's concern about the biological mother's fitness -- Angela had actually been recognized as what's called a "de facto parent" by the courts, and had been granted court-ordered visitation. But when the dependency proceedings were terminated, and Angela asked a family court to enforce her legal right to visitation, the family court found that she was a "legal stranger" to the child and refused her request for continued contact. When I heard about this case, aside from my usual anger and distress at all such cases, I thought "this is the case we can win!" I called my colleagues at the National Center for Lesbian Rights and encouraged them to take the case themselves, instead of trying to find other counsel for Angela. The NCLR attorneys agreed to represent Angela, and have done an incredible job litigating the case -- as they always do. And yesterday, it all paid off. As stated by the Court: "A preliminary review of the facts indicates that there is evidence to show that [Angela] held out [the child] as her son and received him into her home. [Angela] planned the insemination of [her ex-partner]; paid for the medical procedure; was present at the birth; decorated the nursery; informed family members that she was going to adopt [the child]; took [the child] to medical appointments; put him on her health plan as her son; and paid child support after she separated from [her ex-partner]." Based on these facts, the Court of Appeal concluded that Angela meets the statutory and case law definitions of a "presumed mother" and has a right to petition for joint custody of and/or visitation with her son. The case is now remanded to the trial court for findings on Angela's parental status consistent with the appellate court's judgment -- and one more child born to a lesbian couple finally may get to have two legal parents instead of just one. A small victory maybe, but one well worth celebrating!

Saturday, June 18, 2005

Adoption Day in Alameda County

Fridays are adoption day in Alameda County (or at least at Oakland Superior Court, on the banks of lovely Lake Merritt). Yesterday, I had two cases on for final adoption hearings -- both lesbian couples, with adorable babies born 4 days apart, now 5 months old. I got there early, having allowed extra time for traffic, so I sat in the hallway outside the courtroom and watched people come and go out of the elevators. It was quite a scene. Oakland Superior Court is an old building, 11 stories high, with 4 courtrooms on each floor. None of the modern glass and metal stuff you see on TV. Instead, lots of wood everywhere, stone tile floors, the smell of old office buildings everywhere. Courtrooms are not segregated by the types of cases heard in them, so the courtroom across the hall from the one where the adoptions were occurring was a criminal court. While I was sitting in the hallway, there therefore was an interesting mingling happening of folks with young children, happy and dressed up for this joyful day when their adoptions would be finalized; and the usual motley crew lining up for appearances in Oakland's felony courts. (I was a public defender in Oakland for five years, and probably still have spent more time in the felony courts there than in the adoption courts, given the "every day" quality of public defender life, so the motley crew is one with which I'm very well acquainted. I even miss it, from time to time. But that's another blog altogether!) Anyway, as I was sitting on my bench, watching the ever-changing stream of human traffic go by, a man came flying out of one of the criminal courtrooms having just been ejected for waving at his wife who was in custody in the courtroom and who, he told us, he hadn't seen in several years. So on my right, a man was being penalized for trying to have some very minimal contact with his wife; while on my left, the courtroom was getting ready to legally bless the assembled crew of families-waiting-to-be-formalized through the adoption process. It made me reflect on how we value families in our society -- and on which families we value. Does denying criminals in custody the opportunity to exchange even something as small as a wave with their loved ones really serve an important security function? Or is it just part of the way in which we treat "criminals" as if they are a different brand of humans, without the needs for love and companionship and comfort that the rest of us take for granted? Definitely food for thought. But back to the adoptions. Once we got inside the courtroom, it became clear that there were an unusual number of cases on. The courtroom was literally full of happy families and small children -- cameras everywhere -- lots of smiles and laughter and congratulations all the way around. And, hmmm, there weren't a lot of men there.... I asked the clerk, whom I've known for years, what was up. Apparently, due to the judge's vacation schedule, they were hearing more cases than usual this week. So 8 cases were on the adoption calendar this morning. And -- I kid you not -- of those 8 cases, FIVE of them involved lesbian couples adopting children. Five out of eight cases. I turned to one of my clients and said "makes you wonder if straight people adopt children any more!" and she laughed and agreed that it didn't look like it. Which really makes one think. With all of this "family values" stuff in the newspapers each day, I wish some of the folks who make their livings spewing bile at same-sex families would come to Alameda County on adoption day. What they would see is a rainbow of families -- Asian, Latino, African American, Caucasian -- with children of all ages, from infants to early teens -- all having the love, the patience, the commitment to withstand whatever hurdles the State throws in front to them to assure that the children they are parenting are provided with the stability, love and protection that every child deserves. Talk about family values!!

Friday, June 17, 2005

On Parenting and Pit Bulls

It's tough being a parent. For those of you not fortunate enough to live in the Bay Area, you may not have heard that a 12-year old boy was mauled to death last week by his family's pit bulls while his mom and siblings were out doing errands. I had just picked up a 12-year old boy on my older son's Little League team to take him to a play-off game, and had my 9-year old son in the back seat, when we drove right into the police barricades. I turned on the radio to see what was up, and was appalled to hear about the tragedy -- especially with two boys in my car to share my horror as we sat in the traffic jam caused by the street closures in the immediate vicinity of the incident. I took this case personally for two reasons: First, I regularly leave my 11-year old son at home with our dog while I'm out doing errands. He prefers it to coming along; I have a cell phone so he can reach me; and we live in a very quiet, safe neighborhood with friendly neighbors on either side who are retired and therefore home during the day and very willing to help in a pinch. So I had that awful "this could have been me" feeling when I read of the mom coming home to find her son dead. Second, I have participated for years in the dogs-vs-kids debates that periodically rage in San Francisco and, being both a mother and a dog owner, I feel particularly caught in the middle when something like this happens. So I've been thinking a lot about this incident, and I have two musings to share. Let me start by saying that I actually like pit bulls. They often are very fun, friendly dogs. My chocolate lab tends to enjoy playing with them more than most other breeds -- I don't know why, but it's true. But.... Dogs are dogs. Even when well-trained, they are still dogs. They are carnivores with big, sharp teeth. They can do damage. They also have strong innate tendencies that have been bred into them over generations. Our first family dog, a hound, was incredibly sweet and docile inside the house -- as hounds are bred to be -- but open the front door and he was gone, following his nose to wherever it took him and generally raising hell, acting like he never had heard his name before despite having been through very rigorous training. Our labrador retriever, on the other hand, would chase a tennis ball to the ends of the earth, will retrieve anything thrown for her until she is literally dropping from exhaustion, but is amazingly sweet and obedient as she was bred to be. I live with the absolute certainty that if our chocolate lab "went off" -- as I assert that any dog can do, being a dog -- she would snap, and maybe even bite. But then she'd be done. As a parent, I live with the knowledge that my children, being dog lovers and very active kids who run around at parks and the beach, may get bitten by a dog some day. I'm okay with that -- not thrilled, but willing to take the risk to allow them to live full, active lives with dogs in the mix. But when pit bulls "go off," people don't just get bitten. They get mauled. Some even get killed. At this point, this week anyway, I'm not sure why that's worth it. I also have to wonder about parental responsibility. Earlier this week, the boy's mom called the local newspaper to tell her side of the story. What she explained was that the female pit bull was in heat, and the male was therefore acting particularly aggressive, so she put her son in the basement with food and videos before she went out and told him to stay down there. In other words, she knew that the dogs posed a danger to her son, and nevertheless chose to leave him at home with them without adult supervision. Now, this mother has been through hell, having lost her child in a horrific way and having come home to find the devastation herself, without any warning or support. I really don't want to blame her for this tragedy. But I can't help but feel that there's something wrong here. Which brings me back to where I started. It's tough being a parent. And this week, I find myself thinking about pit bulls and children, and particularly about my own sons playing around pit bulls, and about how we draw the lines between what risks are worth taking and what risks just aren't -- not just for ourselves, but for our children. These choices are often hard to make. But then, when we don't make them wisely, what are the consequences....

Tuesday, June 07, 2005

Why Should Children Only Get to Have Two Parents?

We take it for granted, in this society, that children can have one parent, or two parents, but they can't have more than two. But why is this? Many children in fact have more than two parents -- children in blended families, where they live with a mom and a step-dad and/or with a dad and a step-mom, often are strongly bonded to three or four adults who play parental roles in their lives; children conceived using reproductive technologies can have at least 3-4 adults directly involved in their procreation; and children planned and conceived by groups of more than two with the intention that they all share parental responsibilities often end up with strong parent-child bonds with 3 or 4 adults. From years of adoption experience, we have learned that secrecy about a child's origins often back-fires. Having learned this lesson, I see many lesbian couples in my practice who want their children to know the children's biological father, and some who even want that person to be involved in a parental way with the child. These are two women and a man planning on conceiving and raising a child together. But I have to ask them: which two of you want to be the legal parents? The same situation is arising more and more frequently with gay male couples using surrogacy. I have seen several of these couples now where the plan is for the men to both be fathers, but for the surrogate to be a mother as well. Again, I have to ask: which two of you want to be the legal parents. I have always crafted my law practice to try to make the law fit peoples' visions for their families, instead of trying to fit people's families into the boxes already available under the law. But I'm not having any success figuring out how to make three people parents, even when they have gone into the procreation process with that explicit intent and have been able to carry it out with excellence. Cynics say that allowing children to have more than two legal parents just sets them up for more complex and vicious custody disputes when things fall apart. But not allowing them to have more than two legal parents leaves them vulnerable to losing one of their parental figures, with whom they are deeply bonded, without legal recourse. It seems to me that, in limited circumstances where the clear and documented reality is that children are being responsibly parented by more than two people, it is time for the law to recognize that there is nothing magic about the number two.

Friday, June 03, 2005

Gay Marriage Defeat in CA Assembly

Well, it was close. And I guess that's really the big news. The California Assembly just failed to pass a bill authorizing same sex marriage by ... 4 votes. Let me say that again. The Assembly was FOUR VOTES SHORT of passing a bill legalizing same sex marriage. Four votes short.... Now, when you think about the California Legislature, don't think San Francisco. Don't even think LA. Think Orange County. Think Ukiah. Think about Fresno and the Sierra Foothills and Bakersfield and the Central Valley. And we had all but 4 votes that we needed to make marriage equality the law of the state. I'm sorry, but being the 40-something that I am, I think that's fairly remarkable. So kudos to the legislators with the courage to vote for equality. Kudos to the lesbian and gay couples and their children who went to Sacramento and put real faces on this highly politicized debate. And kudos to the folks at Equality California for their tireless work to make marriage equality the law of the land. Just four votes ... it makes me think that our day is coming sooner than I had ever hoped.

Wednesday, June 01, 2005

It's June -- Time to Reflect on the Past Year

I can't believe it's already June! Since I have two school-aged kids, my calendar is a school-year calendar. So June is a time of transitions. Looking back on the past year, I am amazed at all that has happened. There is exciting new work being done around children's issues, including breakthroughs on the gay parenting front and groundbreaking work around finding permanency for children in the dependency system. The dependency work often goes unnoticed, but with 500,000 children in foster care these issues are huge. I am especially impressed with the work currently being done to provide new, meaningful support to children "aging out" of the foster care system -- in other words, kids for whom no adoptive home is found and who aren't returned to their families, but who remain in the foster care system until they turn 18. These kids have, historically, simply been kicked out at 18 to find their own way, many ending up on the streets, in shelters, in jail or dead. So kudos to the creative and courageous souls out there who are working hard to find new ways to bring permanency and stability into the lives of too-often forgotten children. Then there's interesting activity on the gay marriage front. On May 12, a federal judge struck down Nebraska's constitutional amendment defining marriage as between one man and one woman and precluding same-sex civil unions, domestic partnerships and other such arrangements. The amendment was passed by the Nebraska voters approximately 5 years ago, with 70% of voters voting in favor. The judge found the amendment unconstitutional on several grounds, the most interesting of which is the concept that amendments such as these deny lesbian and gay citizens their constitutionally-mandated access to the legislative process. In other words, amendments such as this preclude one community from being able to use the legislative process to try to make changes to improve their lives. A good point! Anyway, with so many other states passing similar amendments, it will be fascinating to see what happens next. (And who would have thought we'd be looking to Nebraska for the cutting edge of legal theory!!) The main thing I see, looking back on the past nine months, is a huge amount of activity -- debate -- upheaval -- on the family front. I think this is a good thing, over all. The national conversation has begun. Wherever it takes us, at least we're talking....