BETWEEN TWO MOMMIES: Naomi Cahn

...The intersection between these statutes and the realities of gay parenting creates complicated legal issues. The problem arises most acutely when a couple, joined in a legal relationship through one state's law, asks another state to intercede in a custody dispute. Not only are the first state's laws frequently pitted against the laws of the other state, but also the constitutionality of federal and state defense-of-marriage statutes are called into question under the full faith and credit clause of the federal Constitution.

Matters are complicated further with the question of how a child's best interest can be served in this intersection of constitutional issues. ...

First, is the partner of the biological mother a "legal parent" or parent by estoppel who is entitled to seek custody and visitation? Custody disputes typically occur between the two legal parents, and the general standard that courts apply is "the best interest of the child." If there is a dispute over a child between a parent and a third party, then the parent must typically be proved unfit before custody can be awarded to a nonparent -- although this distinction is starting to blur as lesbian and gay partners seek to establish parental rights even without legal parenting status.

The Vermont civil union statute, which is implicated in both cases, provides that the "rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage." ...

Regardless of where they live, however, gay and lesbian couples who have children together have a variety of options to ensure that each of them will continue to have custody or visitation rights with respect to their children. These rights can be protected even if they move to another state, if their relationship ends, or if one or both of them is incapacitated.

One option in many states is second-parent adoptions, whereby a child born to one parent is adopted by the nonbiological or nonlegal other parent. The legal parent, who does not lose any of her rights and responsibilities, must give consent. ...

In jurisdictions where second-parent or joint adoption is not available, lesbian, gay, and bisexual parents can attempt to protect their relationship with their children through a variety of privately executed documents: parenting agreements, wills, guardianship agreements, authorizations to consent to emergency medical treatments, and similar documents. ...

In Rhode Island, a family court decided that there was a de facto parent relationship between a woman and her nonbiological child, and thus enforced a written agreement between the biological mother and her ex-partner that allowed the former partner to visit the child.

And the American Law Institute's Principles of Family Dissolution recognize the status of a "parent by estoppel." Individuals who have entered into a co-parenting agreement with the legal parent and have acted as a parent since the child's birth, can be recognized as parents by estoppel, where such designation is in the child's best interests. A parent by estoppel has the same rights to custody and visitation as a legal parent. ...

One statutory reform might mandate the automatic issuance of birth certificates with both same-sex parents' names. A second reform could require the automatic issuance of a certificate of adoption when a child is born into a same-sex relationship or an automatic declaration of parentage.

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posted by Eve at 6:58 PM VOTE

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