...The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."

In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.

The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own."

Labels: beyond marriage, children, de facto parenting, domestic partnership, donor conception, parenting, unmarried parents, Washington (state)

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On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."

The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.

I sent the following call for papers to numerous family law academics:

It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.

Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). ...

Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.

Labels: beyond marriage, children, de facto parenting, family structure, gay marriage, gay parenting, law, Marriage, more than two parents, Nancy Polikoff, single parenting

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...Still, even in a time of changing attitudes about who can be a parent, the legal and social definition of a family still has certain rules — a family can be run by a single mom or a single dad and, increasingly, by two moms or two dads, but it can’t have three parents, or four. For a long, long time — going back to when the English common law first started codifying such things — the law has set the maximum number of parents a child can have as two. Only two people, in other words, can enjoy the unique set of rights to determine a child’s life — and the unique set of responsibilities for the child’s welfare — that legal parenthood entails. That matches how most people think about parenthood: Two people, after all, are how many it usually takes to make a baby in the first place.

Now a few family-law scholars have begun to argue that there is nothing special about the number two — if three or four or five adults have a parental relationship with a child, the law should recognize them all as parents. Going beyond two, these scholars argue, would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care, and financial resources of any of the people they have grown up regarding as their mothers and fathers.

“The law needs to adapt to the reality of children’s lives, and if children are being raised by three parents, the law should not arbitrarily select two of them and say these are the legal parents, this other person is a stranger,” says Nancy Polikoff, a family-law professor at American University’s Washington College of Law.

In a few recent cases, courts seem to have agreed with the calls for multiple parents. But critics argue that tinkering with the definition of parenthood in this way threatens to dilute the sense of obligation that being a parent has always carried, and that increasing the number of legal parents only raises the likelihood that family disputes will arise and get messy and find their way into court. Not to mention that having judges routinely declare that Heather has two mommies and three daddies would represent a radical cultural shift, and one that, like gay marriage, many will find threatening.

Ultimately, the legal definition of parenthood is part of a broader philosophical question: What is a family? And what is it for? While some scholars have focused on expanding the number of parents, others argue that the law needs to do more to recognize the social context in which families exist, and the extent to which child care is actually performed by people who aren’t part of the nuclear family at all. ...

Today’s proponents of expanding the definition of parenthood argue that restricting the number of parents to two people also disadvantages children, at least those in certain nontraditional households. If a child grows up thinking of more than two people as parents, these lawyers and legal scholars argue, then the law should protect those relationships and the emotional connection and material support that come with them. Doing so may not be necessary as long as all of the parents get along and remain equally committed to the child — or children — but if the parents have a falling-out or if the custodial parents split up, then the people the law officially recognizes as parents hold all the cards, and can shut the others out of the child’s life.

In addition, in the eyes of the law, a child doesn’t have any claim on the financial resources of parental figures beyond the legally recognized two. The relationship is not unlike those of illegitimate children and their parents before 1968. With very few exceptions, it is today impossible for children to sue for child support, collect Social Security survivor benefits, or inherit by intestate succession from self-identified third or fourth parents, since the law doesn’t recognize the relationship.

To critics of the legal status quo, all of this means that, just as with illegitimacy laws, the courts are punishing children in the interest of preserving a traditional family structure, making their lives more uncertain by depriving them of emotional and financial support.

“I’m not saying all kids should have three [parents], or that two is good so why not three,” says Melanie Jacobs, a law professor at Michigan State University and author of a 2007 law review article entitled “Why Just Two?” “The law says someone is either a parent or a legal stranger, and in some cases that’s threatening to just take this person who has been a part of the child’s life out of the child’s life.”

Jacobs points to two recent decisions in particular that suggest how she would like courts to define parenthood in such families. In January 2007, the Ontario Court of Appeals granted full parental status to both members of a lesbian couple as well as their sperm donor, ruling that it was contrary to the child’s best interests to not recognize all three. In April of 2007, the Pennsylvania Superior Court was faced with a custody decision involving a child’s biological mother and her same-sex partner, who had split up, and a donor who had been a significant presence in the child’s life. The court ruled that all three should have custodial rights and that all three were responsible for child support. Additionally, in July of this year, the attorney general’s office in British Columbia proposed allowing for more than two parents in cases of sperm and egg donation.

Recognizing multiple fathers or multiple mothers, however, doesn’t necessarily mean that they all have the same rights. In the Pennsylvania case, the court did not decide that all three parents had equal custody or were responsible for the same amount of child support. Jacobs in particular has argued that expanding the number of legal parents a child has requires that courts begin to allow for degrees of legal parenthood, what she calls a scheme of “relative rights.” Whereas today the law tends to see someone as either a parent or a nonparent, she argues that it should instead recognize gradations. For example, she argues, a known sperm donor should perhaps have certain parental rights and responsibilities — visitation and the obligation to pay some child support — but not the right to demand custody.

For critics, “disaggregating” the rights and responsibilities of parenthood, as Jacobs suggests, exposes a larger problem with the idea of expanding beyond two in the first place. Traditional legal definitions of parenthood, though they may not exactly correspond with every family’s day-to-day reality, do lay out a set of hard and fast, inescapable obligations. If courts begin to experiment and innovate with what being a parent means, that may create uncertainty, and even a sense that parental obligations to children may be more negotiable than they once were.

Labels: child care, children, culture, de facto parenting, donor conception, Elizabeth Marquardt, family structure, June Carbone, more than two parents, Nancy Polikoff, parenting, remarriage

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Debra H. is the mother of her six-year-old son, a child she raised with Janice R,. her ex-partner who is the child's biological mother. So ruled the New York Court of Appeals today (and that's the highest court in NY, so their decision is final). For that reason, press reports, at least the early ones, refer to the opinion as expanding the rights of gay parents.

Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.

New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.

Labels: civil unions, custody, de facto parenting, gay couples, gay marriage, gay parenting, Massachusetts, New York

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A Colorado Appeals Court ruled earlier this month that a man with a six-year father-child relationship was the child's parent for all legal purposes, including joint legal custody and visitation. Although it's not obvious that such a case would be a win for the children of lesbian couples, in fact the basis for the court's decision is applicable by analogy to the situation in which a non-bio lesbian mom raises a child with the child's bio mom.

Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.

The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie.

Labels: Colorado, de facto parenting

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A Downriver woman cleared the first legal hurdle today in her bid to obtain joint custody of three children she says she raised with the children’s biological mother.

Wayne County Circuit Judge Kathleen McCarthy ruled that Renee Harmon’s request for parenting time with her ex-partner of 19 years, Tammy Davis, can proceed to an evidentiary hearing July 21 to determine if they had an agreement to share custody of the children.

If an agreement existed, which Harmon’s lawyers said they can easily prove, McCarthy likely will grant joint custody, the lawyers said. ...

Under state law, the only people who can petition for custody are biological parents or the husband of the biological mother if the child was born during their marriage.

Labels: de facto parenting, Michigan

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The Supreme Court of Washington ruled last week that a stepparent cannot be a de facto parent. Five years ago, that court acknowledged, in In re L.B., that a nonbiological mother in a lesbian couple was the de facto parent of the child she had raised from birth, for six years, with the biological mother. In last week's case, In re M.F., a six-member majority ruled that a court must decide whether the de facto parentage doctrine applies before applying the factors used to determine if someone is a de facto parent. The court found that it could not apply to a step-parent, at least not when the child already has two legal parents.

In the case, M.F. was born to married parents, Patricia Reiman and Edward Frazier, who separated shortly thereafter and then divorced. The mom had custody and the dad had visitation rights. The mom remarried when M.F. was two years old, and that marriage produced two sons. When that marriage dissolved, the mom and dad, John Corbin, split the time with their two children, but M.F. was usually with the boys when they stayed at their father's. Three years later Corbin petitioned to change the parenting plan with the boys, and the mom stopped sending M.F. when the boys went to their dad's house. ...

But the majority's ruling is really predicated on a notion that is fundamentally flawed -- the idea that a child cannot have more than two parents. The three dissenting judges agreed that the majority was too fixated on the fact that the child already had two parents. That should not be test. It's time for law to recognize the fact of children's lives...that many have more than two functional parents. ...

And the dividing line among stepparents shouldn't depend on whether a child already has two parents. By drawing that line, the Washington Supreme Court is treating a child with one parent (usually a mother) as having less of a family that a child with two parents. Wrong, wrong, wrong. A single mother may have a new partner who should not be considered a de facto parent. A divorced mother may have a new partner who should be considered a de facto parent. This is a court that has stepped up to the plate in several cases to recognize functional families -- both couples and parents. Not here. Here they were blinded by the number two.

Labels: de facto parenting, family structure, Nancy Polikoff, stepparents, Washington (state)

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Today, Lambda Legal argued before the New York State Court of Appeals on behalf of a non-biological mother after an intermediate appeals court denied her right to seek custody and visitation with, and provide financial support to the child she has parented with her former same-sex partner. ...

Lambda Legal represents Debra H. in her effort to continue to parent the son she and her former partner, Janice R., planned together. The couple agreed they would raise a family together in a two-parent household and conceived their son using in vitro fertilization. Janice promised that Debra would formally adopt their child, and they met with an adoption lawyer prior to their son's birth. In 2003, before he was born, they entered into a civil union in Vermont, which at that time was the most legally significant relationship available to same-sex couples under U.S. law. Debra was by Janice's side throughout labor and delivery and cut their son's umbilical cord; her last name was included in their son's name on his birth certificate. In the years that followed Debra gave him the day and night love, nurture and care of a mother. When it came time for the second-parent adoption, Janice, an attorney, advised Debra "as a lawyer" that they didn't need to get the courts involved and Debra would always be the boy's parent. When the couple's relationship ended in 2006, Debra continued actively to parent her son, who moved with Janice into an apartment only a block away. Debra and her son were together daily, and she often put him to bed.

In May of 2008, when the child was 4 ½ years old, Janice abruptly refused Debra any further contact with him. Debra immediately filed for emergency joint custody and restoration of parental access.

Labels: custody, de facto parenting, donor conception

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A one-time lesbian couple will have shared custody of the child they had together and raised before splitting up, the Kentucky Supreme Court ruled Jan. 21.

The high court in Frankfort approved the couple's joint custody agreement and ruled that one of the women, Arminta Jane Mullins, acted as a "de facto parent" with her partner, Phyllis Dianne Picklesimer. ...

Picklesimer gave birth to the boy in 2005. The couple filed a joint custody agreement in February 2006 in Garrard County and split up two months later. Picklesimer denied Mullins contact with the boy that September, prompting Mullins to go to court to see the child.

Justice Wil Schroeder wrote for the court's majority that the women made multiple decisions about the child before and after he was born, with Mullins caring for the boy while the couple was together and for five months after they split.

"This would distinguish the nonparent acting as a parent to the child from a grandparent, a baby sitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the same capacity of another parent," Schroeder wrote. ...

Eighteen states recognize "de facto parents" over the objections of fit biological parents: Arizona, Arkansas, California, Colorado, Indiana, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, Utah, West Virginia, Washington and Wisconsin.

Labels: de facto parenting, Kentucky

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In a case that could have far-reaching implications for gay rights, a Santa Cruz woman is seeking to maintain joint custody of 10-month-old twins that she and her former partner, the biological mother of the children, had agreed to raise.

As court battles over the rights of non-biological gay parents garner national attention, the Santa Cruz case contains a complicated wrinkle: The biological mother is now involved in a romantic relationship with the sperm donor, who has joined her in seeking full custody of the boys.

"It's the first case I'm aware of where a lesbian couple in a committed relationship has brought a child into the world, then after breaking up, the biological mother has tried to sub in the biological father," said Deborah Wald, a family law attorney who, along with the National Center for Lesbian Rights, represents the non-biological mother.

"If they won, we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors," Wald said.

The biological parents, Maggie Quale and Shawn Wallace, who now live together, say they should be allowed to fully parent their twins, Max and Levi, without a court order allowing even partial custody to Quale's former partner, Kim T. Smith. They say the civil lawsuit filed by Smith, who declined to comment, has put them in the painful position of asserting their rights while still appearing to support the growing effort to protect the rights of gay parents.

Labels: custody, de facto parenting, donor conception, Fathers

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I’ve been mulling over a recent news story from Australia that someone sent to me. It’s a rather complicated tale.

Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years. During that time, each of them gave birth to a child. Ms. Halifax used sperm from a family friend, identified as Mr. Dalton. That child is now seven. Ms. Fabian used sperm from an anonymous donor. That child, a girl, is the subject of the litigation. She is now three.

The two women separated when the daughter was 20 months old. At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales. Ms. Fabian now wants to return to New South Wales.

Her request to move is being opposed not only by her former partner, Ms. Halifax, but also by a gay male couple. According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton. An Australian court has determined that she should not move while the requests of the various parties are considered. ...

I cannot help but contrast this with the evidence women asserting claims to be de facto parents produce. You can find at least half-a-dozen cases that I’ve discussed on the blog–some where the women won and some where the women lost. But win or lose, the evidence offered by the women I’m thinking of is qualitatively different. It’s far more about the hands-on care offered than about the public acknowledgement.

In truth, it seems to me that the men are claiming rights on a basis akin to holding out. Perhaps that is not so surprising. If you go back and read that earlier post (and the ones that follow) you will see this is a historically male path to parenthood. It makes me wonder if this legacy of gendered family law will find its way into the legal regulation of decidedly modern families.

Labels: Australia, de facto parenting, Fathers, gender, gender differences, Julie Shapiro, motherhood

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A HOMOSEXUAL couple has been granted leave to appear before the Family Court in a bid to gain access to a girl who isn't biologically related to either of them.

The men, who cannot be named, have successfully argued that they are important people in the life of the three-year-old.

The girl, who likewise cannot be named, was not conceived with sperm from either of the men. But her mother was, until last year, in a same-sex relationship with another woman who does have a child conceived with one of the men's sperm. ...

The magistrate accepted the mother's argument that she was "less committed to the non-traditional family arrangement enthusiastically embraced by her former partner". However, she said the mother had encouraged the men to have a relationship with her child while she was with the other woman.

She said the men were "publicly acknowledged as father figures" during the life of the relationship, while both women were the established "mother figures".

Those roles were acknowledged at a naming ceremony, where all four adults affirmed their commitment as "parents" of the child.

The men told the court they were involved in the parenting of both children. They attended the mother's 12-week pregnancy scan, and visited the hospital on the day of the child's birth. All four adults also attended annual gay pride parades, marching in the "family" section.

The men were introduced as "daddy" to friends and family, and were listed as emergency contacts at the child's daycare centre. ...

The child has been living with the four adults in three separate households since March.

Labels: Australia, de facto parenting, donor conception, gay parenting, motherhood

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...There are a number of different tests you might use to determine who the parents of a child are. Each has strengths and weaknesses, which are discussed elsewhere on the blog. Part of the challenge is that the question arises in so many different situations. ART in particular gives us a whole range of new complications, but there are plenty even without that. ...

Now if you go back over the blog, I think you’ll find instances in which every one of these tests has been deployed. And of course, you can mix and match them. Some people have multiple factors going for them–they intend to have children, they are genetically related to children they give birth to and they act as the children’s parents. Those tend to be easy cases.

The hard cases come when you have competing contestants, or where one person wants to cut another out, as in the new Montana case. One person claims one basis for parenthood, and someone else claims a different one. Or there are cases when no one wants to claim parenthood and we need to find someone. (Not long ago I wrote about a case where a man who had functioned as a father for 13 years sought to sever his relationship with the child by asserting that it turned out he lacked the genetic connection something he apparently knew all along, but never mind that.) How to decide these?

Cases like this seem to me to suggest we have some sort of hierarchy. So, for example, to reach the result the court did in the case I just mentioned (he’s still the father) it had to say that function (and the relationships constructed based on that function) trump biology (by which test he was not the father.) Again, you can look back and find many instances in which one test seems to overcome another.

And I guess this is my present question. Is there some hierarchy and if so, what is it? Actually, I suppose I really mean should there be a hierarchy and if so, what should it be? After all, I’m more concerned with what the law ought to be than with what it is in any particular place (it varies so very widely.)

Labels: adoption, Artificial Reproductive Technology, de facto parenting, donor conception, Julie Shapiro, parenting

VOTE

I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four. ...

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

Labels: beyond marriage, de facto parenting, Delaware, donor conception, Nancy Polikoff

VOTE

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:
(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in §
1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

Labels: de facto parenting, Delaware

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A woman whose same-sex partner gave birth to a child does not have standing to assert parental rights after the couple broke up, a New York state appeals panel ruled Thursday in an unsigned, unanimous opinion.

The Appellate Division, 1st Department, ruling, Debra H. v. Janice R., 106569/08, reversed a decision by now-retired Justice Harold B. Beeler ordering a hearing to determine if Debra H.'s emotional and financial relationship with the 5-year-old boy, M.R., was tantamount to that of a parent.

Beeler had rejected the contention of the biological mother, Janice R., that the case was controlled by the Court of Appeal's 1991 ruling in Allison D. v. Virginia M., 77 NY2d 651, where former Chief Judge Judith S. Kaye had been the sole dissenter.

In Allison D., the majority had narrowly construed a state law allowing "parents" to assert custodial or visitation rights as being limited to either biological or adoptive parents. ...

The panel found that the record "indicates" that Debra H. had a "loving and caring" parental relationship with the child during the 2 1/2 years the couple lived together after Janice R. gave birth to M.R.

Nonetheless, without having adopted him, the panel concluded that Debra H., as the nonbiological parent, lacked standing to sue for custody and visitation.

Debra H., a management consultant, and Janice R., a solo practicing attorney, began an intimate relationship in early 2002 and started living together about a year later. Through artificial insemination, Janice R. gave birth to a baby boy, M.R., on Dec. 8, 2003.

The couple had registered in New York City as domestic partners and entered into a civil union in Vermont.

Labels: de facto parenting, donor conception

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In a decision showing the uneven progress that has been made in establishing parental rights for same-sex co-parents, the Kentucky Court of Appeals ruled in Tilley v. Kilgore, 2009 Westlaw 485063, that a lesbian co-parent lacks standing to seek joint custody of the children she and her former partner were raising. The unanimous February 27 ruling means that the court will never consider whether the best interests of two young children would be served by preserving a parental role for both of the women. ...

The court found that under the relevant Kentucky statute, somebody who is neither a biological or adoptive parent of a child can only seek custody in one of three ways: by proving she is a de facto parent, by showing that the child’s legal parent is unfit, or by showing that the legal parent has expressly waived her “superior right to custody.”

The court found none of these exceptions applicable. To be a de facto parent, Tilley would have to meet the statutory requirement that she had served as the primary caregiver for the children. In this case, Judge Clayton observed, “Since both Kilgore and Tilley raised these children, there was no single primary caregiver. Tilley cannot be a de facto custodian because she provided for the children next to the biological parent and not in place of the biological parent.”

Labels: de facto parenting

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The state Supreme Court has ruled that a lower court judge erred in granting a lesbian joint custody of her former partner's adopted daughter. ...

The Supreme Court held that, under Delaware law, a person who is considered a 'de facto' parent of a child does not have the same rights as a legal parent, and thus is not entitled to custody.

Labels: adoption, de facto parenting

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