Waldlaw Blog

Thursday, December 28, 2006

A Victory, and Thoughts on LGBT Families

First, the victory: Yesterday morning, an Alameda County court ruled that a client of mine (about whom I blogged on June 9, 2006, so you can find details there) is the legal mother of her daughter whom she hasn't seen in over three years. The decision was clear and succinct, and can be summarized as follows: My client was "presumed" to be a legal parent once (1) she received the baby into her home; and (2) she held the baby out as her own. Although this "presumption" is what's called a "rebuttable presumption" -- meaning that under the right circumstances, it can be disproved by evidence showing it should not hold up -- the court found that in this case it would be inappropriate to allow rebuttal of the presumption, because (1) my client actively participated in conception of the child with the intent to co-parent with the bio mom; (2) my client accepted the rights and responsibilities of parenthood for a period (however brief) after the baby was born; and (3) there is no competing claim of parentage from another source. So California now appears ready to call the parentage issue for children born to lesbian couples essentially on the day the baby comes home from the hospital, whether or not the couple is in a registered domestic partnership. This is great news for children born to lesbian couples -- like children born from heterosexual unions, most children born to lesbian couples will now have two legal parents from a very early age. (A word of caution here -- don't let this decision -- as wonderful as it is -- lull you into a sense of security. It has taken my client 3 years to win this case, with a long journey from the trial court up to the court of appeal and back again -- and she hasn't seen her daughter once during this entire time. Lesbian couples still need to be going to court to establish legal parentage (usually via a 2nd parent adoption) while they are still a happy family. The risks are still too great if you don't.) So here's what I'm pondering today: Lesbian and gay couples in California are increasingly winning true recognition of the families we are creating. We have won substantial partnership recognition through the Legislature, with AB 205 and subsequent amendments now giving committed lesbian and gay couples the opportunity to reap most of the benefits of legal marriage. And we have won substantial recognition through the courts of our relationships with our children. But with both of these forms of recognition come a whole new set of responsibilities. I have been doing a fair amount of public speaking on the arrival of divorce -- real divorce, the kind you go to court for, where the judge can order alimony and decide who gets the dog and the SUV -- in the LGBT community. Now that registered domestic partners are provided with so many legal benefits, we also are provided with a structure for dismantling our families that we have to adhere to, whether we feel like it or not. Decisions like yesterday's decision suggest the same is true when we have children with our partners. Just as we can no longer dismantle our partnerships by one of us renting a U-Haul and moving her/his stuff out and closing the joint accounts and calling it a day, we can no longer dismantle our families by the biological parent deciding that it was a big mistake to have a baby with her/his partner and simply taking the child and walking away. I think that this imposition of structure on our families is a good thing. While many of us were doing fine in managing our break-ups without the State imposing rules on us, we have frankly seen far too much damage done to our community by ex-partners thinking they could walk away from long-term, committed relationships without honoring the families they created. But it certainly is something we will have to get used to -- as a community that has grown accustomed to, and even proud of, living outside the boundaries of heterosexual marriage -- that now we will have to follow the same rules that different-sex couples have to follow when it comes to dismantling the families we have created together. And what a change for gay couples, to have society (at least California society) forcing us to honor our committed relationships even when we no longer want to! It will be very interesting to see how we, as a community, evolve to meet the challenges that come with this new level of legal recognition. On that note, I wish you all a very Happy New Year!


Post a Comment

<< Home