Calif. Lesbian Wins Custody Battle with Female Ex-Partner

The realm of family law is beginning to reflect recognition of the legitimacy--and the needs--of gay and lesbian families even when--as happens with half of all heterosexual families--divorce and custody issues ensue.

The California Supreme Court has ruled that the familial relationship between a same-sex non-biological parent and a child is a bond that ought to be recognized and respected by law, even in cases when the parents separate within months of the child's birth, reported the San Francisco Chronicle in a Feb. 23 article.

The child's birth mother, Kristina S., was represented by lawyers from the anti-gay religious organization Liberty Counsel, which is headed by Mat Staver, a lawyer who has also represented Lisa Miller, the mother of an 8-year-old daughter, Isabella, who was ordered to surrender primary custody of the child to her former partner, Janet Jenkins. Miller missed court dates in both Virginia, where she was last known to reside, and Vermont, where Jenkins lives, and did not deliver Isabella, leading to a warrant for her arrest. Isabella is now considered to be missing; her whereabouts, and those of Miller, remain unknown.

Staver has not responded to media requests for comment in the Miller case, and has also not commented on the California ruling, but in his argument before the California Supreme Court he told the justices that in ruling for Charisma R., the former partner of Kristina R., a lower court had "ordered the breakup of the autonomous, natural family comprised of Kristina and her daughter ... in favor of a new, judicially created 'family,' " the Chronicle reported.

Charisma R., who had to go to Texas where Kristina S. now lives in order to attend court dates, issued a statement saying, "I love my daughter dearly, and I am relieved the courts have recognized that children born to same-sex couples deserve the emotional, financial and physical support of both their parents." Charisma R. was represented by attorneys from the National Center for Lesbian Rights.

Though the former domestic partners split up when daughter Amalia--now 6--was only a few months old, Charisma R. had acted as caregiver to the newborn. The First District Court of Appeal found last year that Charisma R.'s participating in preparing for the child's birth, and then caring for her in a mother-daughter relationship, made her a co-parent, in accordance with a 2005 ruling from the state's Supreme Court that determined that a parental relationship between a non-biological partner and a child could be established in cases in which the partners had planned on conception, childbirth, and child care as a family. That law extends also to unmarried male partners of biological mothers, the article said.

Around the country, family courts are dealing with precedent-setting cases involving the intricacies of same-sex unions and parenthood, which are made more complex by a lack of federal recognition and protections for gay and lesbian families, and an accompanying patchwork of state-by-state rights and acknowledgement of relationships. Same-sex couples who are married in one state are denied marriage in many others; unlike drivers' licenses, marriage licenses are not recognized as valid across state lines in most cases, meaning that a family from Massachusetts, Connecticut, Iowa, or other state where marriage equality is legal may be legal strangers with few or no rights once they enter a neighboring state. The issues only become more complex if a couple has children, either through adoption, surrogacy, artificial insemination, or other means.

In Illinois, a court ruled that a biological mother had the right to take her children to another state, to live with her and her female partner--while the biological father stayed put. Anti-gay groups excoriated the ruling, primarily because it involved a child being taken to live with two female parents. But the family law that is emerging for gay and lesbian parents and their children is patterned along the same lines as established law for mixed-gender couples in similar straits. The court's order transferring custody of Isabella from Lisa Miller to Janet Jenkins, for example, is based on law that was established in cases where one straight parent withheld contact with a child from the other.

Because gays and lesbians must often rely on surrogate mothers or sperm donors, their vulnerability as parents is magnified. In the case of one lesbian former couple in Santa Cruz, California, Maggie Quale and Kim Smith, the birth mother--Quale--left her partner and became involved with Shawn Wallace, the man who had provided sperm for the conception of the couple's children. Quale then sought to exclude Smith from custody of Max and Levi, the twin boys to whom Quale had given birth. The case has yet to be decided, but it could have major ramifications for gay and lesbian families.

Late last year, a New Jersey gay couple lost a court case with the surrogate mother of their twin daughters, who was named as the girls' legal mother despite the fact that the surrogate has no genetic relation to the girls. Angelia G. Robinson carried the twins after a donor egg was fertilized using sperm donated by the husband of Robinson's brother. The fertilization of the ovum in vitro and subsequent implantation meant that Ms. Robinson served as what is called a gestational surrogate, typically a woman with no genetic relationship to the child or children she bears on behalf of others; the case drew on precedent set by earlier cases involving "traditional" surrogates, in which a woman carries a baby conceived using her own egg and the sperm of a donor, with the understanding that the child will then be raised by the donor and his spouse.

Court cases involving gestational surrogates have found against the surrogates in a number of states, though a case in Michigan found for the surrogate. If the New Jersey decision withstands appeal, "that suggests that gestational surrogacy is not as different from traditional surrogacy as we've always interpreted it to be," said Suffolk University Law School professor Charles P. Kindregan, who specializes in reproductive technology law.

The ruling has the potential to complicate the already-complex laws in New Jersey regarding surrogacy. Among other requirements, New Jersey law stipulates that surrogates may not receive a fee for carrying children, and imposes a three-day period before the surrogate gives the child over to the intended parents.

Ms. Robinson hailed the decision as "one more step in helping to insure stability and peace in the lives of our girls." The ruling cleared the way for her to seek sole custody of the children.

A large part of what gay and lesbian families have had to overcome has been a long-standing bias against same-sex couples serving as parents. Persistent biases against single-gender couples are based partly on the belief that children will be happier, better provided for, safer, and better-adjusted in homes with mixed-gender parents. Anti-gay groups have promoted this view, citing research that focuses on heterosexual unmarried mothers and fatherless children, who do worse in school and in life than their peers who come from two-parent homes.

But research looking at two-parent homes in which the parents are both of the same gender explodes that myth, showing that children with mothers or two fathers do equally well in school and life, and are as well-adjusted, as children with mixed-gender parents. Nor does belong raised by two women or two men appear to result in children growing up gay or lesbian themselves--though anti-gay groups also make this claim, and promote such an outcome as less desirable than children growing up to be straight.

Recent research has also bolstered the argument that homosexuality--and heterosexuality--is, at least in part, based in an individual's physiology and is a personal trait present from birth. Among other evidence, a number of studies have shown that male children with older brothers are slightly more likely to be gay--which indicates that prenatal hormone levels in the mother may play a role in a person's sexuality.

Those biases may be starting to crumble as well. In Pennsylvania, legal precedent that was established a quarter-century ago presuming that gay or lesbian parents divorcing their opposite-gender spouses should lose custody of their children, unless they could prove that any same-sex relationship they might enter would not harm the child (a logical impossibility, as negatives cannot be proven), was set aside by a Superior Court panel that found such reasoning was "prejudiced," reported a Feb. 23 Associated Press story.