Nancy Polikoff

Laws for LGBT Families with Children

Filed By Nancy Polikoff | June 02, 2008 9:00 AM | comments

Filed in: Marriage Equality, The Movement
Tags: Beyond Straight and Gay Marriage, blogging for LGBT families, laws about LGBT parents, lesbian mothers

Today is "Blogging for LGBT Families Day." Here's my contribution:

The worst news recently for LGBT families was the decision of Maryland's highest court that eviscerated the family of Janice and Margaret and their daughter, Maya. You see, only Janice legally adopted Maya. After the couple split up, Janice argued she was Maya's only parent. The lower courts gave Margaret visitation rights as a "de facto" parent. Maryland courts had done this regularly since 2000. But the Maryland Court of Appeals decided that Maya had only one parent, and that Margaret was no different from a babysitter, neighbor, teacher, or relative. She would have to prove Janice's unfitness or some other "extraordinary circumstances" in order to maintain her relationship with her daughter.

LGBT families are challenging conventional definitions of parenthood. Children are losing when the courts make narrow legalistic rulings that don't reflect the child's lived reality. So here's my platform for respecting the families we create:

1) Stay out of court! Where were Janice's friends when she was arguing that Margaret was nothing more than a babysitter? If Janice thinks Margaret is a bad parent, let her argue that, but if she thinks Margaret is not a parent at all, well, even her closest friends should tell her she's wrong. We all recognize as anti-gay the argument a straight parent may make that his or her now-gay former spouse shouldn't get custody of a child because gay parents shouldn't raise children. It's time to recognize that using law designed for heterosexual families to argue that a gay parent isn't a parent is just as bad. Unless one partner has been physically violent, a couple who can't resolve their dispute about custody and visitation should use a gay-friendly mediator to help resolve their differences.

2) We need new laws that do a better job of assigning parentage, and here are some proposals. They are only a start!

  • A semen donor is not a parent unless he has an agreement in writing to the contrary with the semen recipient. This is what most people intend when a lesbian uses a known donor, so it should be the default rule. But it also leaves room for recognizing the donor as a parent if the participants write that down. Last year the Kansas Supreme Court upheld the constitutionality of such a statute.
  • The partner of a woman who conceives through donor insemination is also a parent of the child if both women agree at the time she will be a parent. That's similar to the rule that applies to married couples, and there should be no difference if a couple is unmarried - same-sex or different-sex. Such a rule would have required a Massachusetts woman to pay child support for a child born to her former partner. Instead, she got to walk away from a child she participated in creating.
  • If a couple agrees to adopt a child but only one person legally adopts (something many states require), the other partner acquires "de facto" parent status immediately, with an equal right to custody and visitation and an equal obligation to pay child support. That's a law that would have helped Margaret and Maya maintain their relationship, and as of 2007 it's the law in the District of Columbia (DC Code 16-831.01).

Finally, marriage/civil union/domestic partnership isn't the law that's going to solve these problems. An unmarried heterosexual couple who has a child together are every bit as much the parents of that child as a married heterosexual couple. We need the same result for our families, but without the biological connection to both parents we need a different set of laws. Plus, in many states marriage only creates a "presumption" that the husband is the child's father. If it's a presumption that can be rebutted by showing the lack of biological connection, well... that still leave our families vulnerable.

Do you live in a state that allows second-parent adoption? Find out by contacting the National Center for Lesbian Rights or, if you are in New England, Gay & Lesbian Advocates & Defenders (GLAD). Do it if you can! It's the best protection for your parent-child relationships... even if you are married, in a civil union, or in a domestic partnership.

(Cross posted from Beyond Straight and Gay Marriage)


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Robert Ganshorn Robert Ganshorn | June 2, 2008 9:50 AM

Nancy, thank you, staying out of court is usually the best advice no matter the question. Is it not odd that we would use children in a tug of war, a bargaining chip, a means of extracting a better deal? We really were raised by heterosexuals.

From my youth and dislike of what I observed in "marriage" I first wanted to have a better, or best as possible, relationship for myself with an accepting partner. Children were never a consideration, to myself and my partner. Of course in 1976 when we met, had we desired to adopt, the townsfolk would have been on our doorstep with pitchforks and tar.

I am in awe, envy and wonderment of so many who choose to have children as part of their own fulfillment. I know many of you who read Bilerico are parents and I just find it fascinating. Do you really find it brings you additional happiness? At age 55 it would never occur to me to start a family as I have always built my own family from among my wonderful friendships. The only people I socialize with who have children are heterosexuals, but I know that it is an age divide thing.

What happens when legislation that discriminates against same-sex relationships is passed. Marriages where one partner has transitioned are affected.

From a submission to the Australian Human Rights and Equal Opportunities Commission:

To the Government, I am a married person of indeterminate status unless dead in which case I am not married and my estate may not be claimed by my wife.

To Medicare I am a woman.

To my wife's superannuation, I apparently am not a family member (particularly as it pertains to inheritance rights)

I am not married to my wife as I am a female, but I am not allowed a birth certificate as a woman because I am married.

...

My wife doesn't appear to have any rights as a married woman either - though she's done nothing wrong nor has she signed anything that may abbreviate or negate any rights as a married woman - this is an important point as it apparently discriminates against an innocent bystander.

And another

Neither of us is homophobic but we resent being classed and discriminated against by inclusion under the wrong label.

We are not Lesbians nor thought of as such in our local community that understands that my condition is both medical and mental and, after all other avenues have been exhausted, has resulted in me becoming a woman.

The Commonwealth and State Legislatures choose not to recognise our condition and strip us of all our human rights and equal opportunity before the law.

The Human Rights and Equal Opportunities Commission late last year identified over fifty pieces of State and Federal Legislation against "same sex" couples including transgender couples and transgender singles.

The following are just some that impact on Transgender married couples.

(1) By Medicare we are now determined to be a "Same Sex Couple" and lose our married status even though we are still married

(2) (a) I cannot change the gender on my NSW Birth Certificate without divorcing my seventy-two year old wife of thirty-eight years.

(b) I cannot have an Australian Passport with the corrected gender on my new Passport unless I change the gender on my name-amended Birth Certificate.

(c) If I change my gender on my birth certificate then my wife loses her pension card as she is then classified as a "same sex" single person! As a married couple we are both entitled to a part-pension along with all the married pensioner discounts on utilities, travel on public transport etc

(d)....

And in a comment on the issues

Birth Certificates too are meaningless pieces of paper now. They prove nothing, as the Registrars are forced by State law in some cases to retain false information on them. That's been proven in court.

As for my own rights as a father to my boy, they are questionable. I think I'd be treated as any other father in any other marriage. My name's on my son's birth certificate as his father. But that could easily be rendered moot by act of Parliament, or even Ministerial whim. I could be given the same rights as a non-maternal lesbian partner (which I think means essentially, none) or those of an anonymous sperm donor with no familial connection (again, none). For as has been proven, when it comes to transsexual people, birth certificates and certificates of marriage are legally meaningless. I might have normal Human Rights, but unlike other people, I can never be sure. They can be withdrawn in an instant...

Note that the Marriage itself is not affected, the Family Courts have ruled unequivocally on that. Divorce requires at least 1 year of complete separation, and one partner transitioning is irrelevant. Marriages of 20, 30, 40 years duration or more involving Transsexuals give no rights, but de-facto relationships not involving transsexuals do, even if of a few weeks duration. This is in order to "protect marriage".

Even George Bush in a recent visit commented that this was a violation of Human Rights.

Same-sex relationships are not just a GLB issue, and T's face problems that GLBs can't conceive of.

Indeed, that argument is homophobic. I remember when I first started reading LGBT news daily and I read about cases like that, and all I could think was "What in the world is she thinking?" Apparently, mothers like that just want to cut the other mother out, which is why the law should recognize that sometimes people, when ending relationships, can be vindictive.

I didn't think that it was all that complicated....

Robert Ganshorn Robert Ganshorn | June 2, 2008 12:42 PM

Zoe,It is amazing is it not? I wanted to say in my first posting that new laws are not what is needed. Just repeal the stupid laws we have. People always love to pass new laws though, it sounds like a positive action, when the best thing is the fewest laws governing personal behavior.