Waldlaw Blog

Friday, February 24, 2006

Ohio Moves to Bar Republicans from Adopting Children

One of my students just sent me a wonderful article. Apparently, Ohio State Senator Robert F. Hagan -- a member of the Ohio legislature for over 15 years and the current Assistant Minority Whip -- has proposed legislation that would "ban households with one or more Republican voters from adopting children or acting as foster parents." According to the article from www.azcentral.com, Hagan said his legislation was written in response to a bill introduced in the Ohio House this month by state Rep. Ron Hood, R-Ashville, that is aimed at prohibiting gay adoption. "We need to see what we are doing," said Hagan, who called Hood's proposed bill blatantly discriminatory and extremely divisive. Hagan called Hood and the eight other conservative House Republicans who backed the anti-gay adoption bill "homophobic." Hood's bill, which does not have support of House leadership, seeks to ban children from being placed for adoption or foster care in homes where the prospective parent or a roommate is homosexual, bisexual or transgender. To further lampoon Hood's bill, Hagan wrote in his mock proposal that "credible research" shows that adopted children raised in Republican households are more at risk for developing "emotional problems, social stigmas, inflated egos, and alarming lack of tolerance for others they deem different than themselves and an air of overconfidence to mask their insecurities." However, Hagan admitted that he has no scientific evidence to support the above claims. Just as "Hood had no scientific evidence" to back his assertion that having gay parents was detrimental to children, Hagan said. For the full article, go to http://www.azcentral.com/offbeat/articles/0223gop-adoption23-ON.html.

Monday, February 20, 2006

Thank You Willie Nelson

For those of you who missed it, on Valentine's Day Willie Nelson released a new single as an "itunes exclusive." The single, titled "Cowboys Are Frequently Secretly Fond of Each Other," is a ballad to "queer" cowboys (his word, not mine) that I never thought I'd hear, and certainly not sung on the airwaves by Willie Nelson. It's actually a great story -- apparently the man who wrote the song, Ned Sublette, had always imagined Willie Nelson singing it -- and word is Willie's been singing it privately for years, but didn't think that it was ready for prime time (or, more accurately, didn't think that prime time was ready for it!). But now, with Brokeback Mountain, gay cowboys are all the rage, so ... well, WHY NOT?! The chorus -- which even my 12-year-old very hip son agreed was "catchy" -- goes "Cowboys are frequently secretly fond of each other / What did you think all them saddles and boots was about?" And a friend who lives in Tennessee tells me it's tearing up the airwaves there -- both as music and as fodder for the talk radio crowd. (For an article from the Dallas Morning News about the song, go to http://www.dallasnews.com/s/dws/ent/columnists/mtarradell/stories/DN-cowboysong_0214gl.ART.State.Edition2.e368707.html.) So kudos to Willie Nelson. I hope I'm still breaking new ground and making big such waves when I'm his age!

Monday, February 13, 2006

A Strategy for Lesbians Co-Parenting with Their Ex-Partners

I'm excited about a new group of cases I'm handling, so I have to share. When the California Supreme Court ruled on a trio of lesbian custody cases last August, I immediately started getting phone calls from non-biological lesbian mothers who had lost contact with the children they had previously raised with their now-ex-partners. The basic question was: "I raised my child with my ex-partner for [3, 5, 7] years, then we broke up and she told me I couldn't see him any more. I haven't seen my child in [1, 3, 5 years]. Now that we won in the Supreme Court, can I start seeing my child again??" These calls were heartbreaking and empowering at the same time, because -- for the first time in my professional career -- I had genuine hope to offer these women. But I didn't take the cases myself, because I don't litigate at the trial court level. Instead, I helped refer these women on to attorneys who could help them. But now, 6 months after the Supreme Court's rulings (and if you don't know what I'm talking about, go back to my posts from August, where I discuss them fairly extensively), I am getting a new round of phone calls. This time, the calls are coming from women who have been struggling through the process of continuing to co-parent with now-ex-partners, with more or less success, but with all the challenges that co-parenting with an ex involves. These women are now looking to legalize the relationships between the other parent and the child, but in a way that recognizes that they are not a unitary family and provides structure to their custody/visitation/child support arrangments. In other words, these are women who are prepared to agree with the Supreme Court that children born into a lesbian home get to have two parents -- two mothers -- but for whom the process of co-parenting is not easy. I am loving these cases. And I've worked out a strategy that I think offers a lot of stability and support to these families. This is how it works: We make sure that each woman is represented by an attorney committed to collaborative law practice. Then, we send the ex-couple off to meet with a child custody mediator/therapist, who works with them on their issues and helps them formulate a custody and visitation agreement. (This can be relatively general or very detailed, depending on the needs of the individuals involved.) Once the custody and visitation agreement is in place, we have a gathering of both women and both lawyers, to go over the agreement, hammer out the "legal" details, deal with any property issues, and get it all into a legal format. Then we go to court with a stipulation that both women are moms, based on the Supreme Court cases, and get a judgment to that effect -- but with the final custody agreement as part of the judgment. So the ruling isn't just "this child has two mothers" -- it's "this child has two mothers and one of them is going to have the child on Sunday-Wednesday and the other will have the child on Thursday-Saturday and they will alternate holidays...." Or whatever.... This is a way to provide structure and security to women who are muddling their ways through the challenges of co-parenting with their ex's, which supports their impulse to be fair but also recognizes that sometimes issues are real and some structure is a good thing. It seems to be working well, so if you know folks in this situation, please send them my way!

Thursday, February 09, 2006

Gender Neutrality and Presumed Mothers

Sorry for the long break from blogging -- I'm teaching a law school course this semester on top of everything else (law practice, family), and it's taking up an inordinate amount of my time. Which brings me to the issue of presumed mothers, which we debated in my class last night. Some background: Traditionally, there were only two ways that a man became a legal father: by being married to a woman who gave birth, or by adoption. The "married to a woman who gave birth" route was codified in what is commonly referred to as a "marital presumption of paternity." In California, the marital presumption is found at Family Code section 7540, which says that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be the child of the marriage." Historically, the marital presumption made complete sense. After all, it's only recently that we can actually tell with a high degree of scientific certainty who a child's genetic father is. Until recently, it was all a matter of supposing -- so it made sense to suppose that a child born to a married woman who was living with her husband when she became pregnant was the husband's child -- assuming the husband wasn't "impotent or sterile." Now, moving into the 21st Century, we have a problem. First of all, we now can know for certain who the genetic father is, and we're finding out that it isn't the husband in a truly amazing number of cases. One study estimates that 1 in 25 fathers is "unknowingly raising another man's child." (For more on this, see http://www.levingsdivorcemagazine.com/archive/fall_05/paternity_question.html.) But beyond that, we now have a policy that the Family Code is to be interpreted in a gender neutral manner "wherever practicable." Which brings us to presumed mothers. Say a married woman has an affair and gets pregnant, but stays with her husband. He has first dibs on the baby, under the marital presumption. In other words, if he wants to stay with his unfaithful wife and raise the child with her, he will be deemed to be the child's legal father. Even if the biological father wants to assert himself as the "true" father, he generally will lose. This is because we, as a society, have made a public policy decision to support the marital family, and allowing others to interfere with this family from outside -- even if they have a great reason to want to interfere, like being the "real" father -- would undermine this policy. Okay, now say a married man has an affair and gets his girlfriend pregnant, but continues to reside with his wife. Should his wife be presumed to be the mother of the child? If so, should the married couple be able to strip the child from its birth mother, potentially over her objection? This would be the outcome of a gender neutral reading of the marital presumption. And we like gender neutrality, right?? This issue has actually come up in a case in Los Angeles. Under the facts of that case, the child probably should remain with the husband and wife. But looking at the big picture, I'm getting mighty nervous about turning birth mothers into incubators. The thing that makes surrogacy an ethical option for procreating is the fact that the surrogate goes into it with her eyes wide open and is fairly compensated for her services. A marital presumption of maternity is going to result in women who think they are unwed mothers instead being deemed unintentional surrogates for the father and his wife. That can't be right, can it??