Waldlaw Blog

Saturday, October 29, 2005

Enjoying Progress Where We Find It

It's always interesting to see the forms that progress takes. In Pennsylvania, a Superior Court has awarded primary custody of twins to their non-biological, non-adoptive mother, over the objection of her ex-partner, their biological mother. The couple lived together in a "romantic relationship" starting in 1988. They decided to have children by anonymous donor insemination, and in December of 1996 twin boys were born. They lived together as a family until January, 2001, at which point the biological mother took the twins and moved out. In Pennsylvania, a person who stands in loco parentis can obtain primary custody of children without showing that the biological parent is unfit. (This is different from many other states, which require a showing of unfitness before awarding custody to someone other than a biological or adoptive parent.) Instead, the person seeking custody needs to prove by clear and convincing evidence that giving her/him primary custody is in the best interests of the children. In this case, the non-bio mom was able to meet this burden by showing that she had a strong parental bond with the children and that she had respected the children's relationship with their bio mom, whereas the bio mom had repeatedly tried to interfere with non-bio mom's relationship with the children. Further, non-bio mom appeared substantially more stable than bio mom and was able to provide the children with continuity in residence and schooling that bio mom was unable to provide. Therefore, after "a painstaking review of the physical, spiritual, moral and educational issues in the children's lives and a painstaking comparison of each party's response to those issues," the court found the children were better off with their non-bio mom as their primary custodial parent. This may not seem like a big deal. It is just one family court in one state making one very specific decision about one specific family. But to me, it represents huge progress. It was not very long ago that children born to two moms were uniformly found to only have one legal parent, unless the other mom was able to do a "second parent" adoption. This was true even here in California until August, 2005, when the California Supreme Court finally ruled that children can have two "natural" parents of the same gender, if that's who planned for them and parented them from birth. And Pennsylvania is not generally on the forefront of progressive social change. So let's enjoy this step toward universal recognition that in contemporary families, "parents" take many forms. Good for Pennsylvania, and good for the kids!


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