"Family law is very vague," says Kimberly Richman, an associate professor of sociology and legal studies at the University of San Francisco. "That leaves room for a lot of open interpretation." In her new book, Courting Change: Queer Parents, Judges, and the Transformation of American Family Law (New York, 2009), she explains that while this openness has sometimes led to discrimination, the inherent flexibility of family law in fact "allows openings for new types of families and new types of rights to emerge, and that's exactly what's led to custody and adoption rights for gay and lesbian parents."
The closely reasoned book is based on Richman's study of every one of the 316 published appeals court judicial decisions in the U.S. between 1952 and 2004 in child custody, visitation, or adoption cases involving one or more known LGBT parents. She also interviewed dozens of attorneys, judges, and litigants in those cases, which spanned 47 states and the District of Columbia. Her thorough research has helped her show how lawyers and parents have navigated the indeterminacy of family law to secure rights for LGBT families.
For example, the one overarching rule of child custody is that decisions must be made "in the best interest of the child." Different judges will interpret this in different ways, as evidenced by two 1995 cases involving non-biological mothers who sought custody after the biological mothers' deaths.
In one case, the judge ruled for the surviving parent; in the other, against. Although the vague definition of "best interests of the child" has been used against LGBT parents, Richman writes, "it also offers a malleability that was not available in earlier gender-specific standards or more determinate rules," offering room for judges to concede rights to non-biological parents should they see fit.
Another key point Richman makes is that there is a "right" way and a "wrong" way to invoke parental rights. Family court judges, Richman has found, are more interested in the rights of the child or children in question, not in the parents' civil rights or LGBT rights in general. "I'm not going to argue that this is not a broader civil rights issue," she says, "but judges don't want to hear that in family court."
The trap with individual rights, however, she explains, is that judges sometimes "use the rights of the child to trump every other right there is, and use that as a camouflage for bias against the gay or lesbian parent." One solution, enabled by the indeterminacy of family law, is by thinking about rights "as protecting not individuals but relationships between individuals." By adopting this strategy, LGBT families can focus on the relational rights that will protect both parents and children, rather than the rights of one party over the other.
This perspective hasn't entirely caught on yet, but there are signs that it is on the rise. When the California Supreme Court ruled on second-parent adoptions, for example, Richman notes, "The way they worked that indeterminacy was to treat it not just as a matter of parents' rights or gay rights, but as a matter of the right to a relationship between a child and a parent, really looking at what that relationship is, as opposed to the fine letter of the law or biology or some abstract idea in civil rights." This allowed them to decide that "a person who acts like a parent is a parent."
Richman also includes a perceptive chapter on the role of judicial dissents in shaping future laws. In the New York case Alison D. v. Virginia M., for example, one of the first cases in which a non-biological parent sought custody, the non-biological parent lost. Judge Judith Kaye, however, wrote a dissent that has since been used in several cases that ruled in favor of a non-biological parent's rights.
Overall, in the last few years, Richman says, courts are recognizing more and more non-biological parents, but there is still room for improvement. Although they are increasingly allowing dual and second-parent adoptions when the couple is together, she says, there is more resistance to recognizing a non-biological parent when a couple breaks up. "I think that's the area that has the most potential for progressive growth," she asserts.
She sees no direct connection, though, between changes in public opinion and the growing recognition of non-biological parents, and feels the whole judicial activism debate has been blown out of proportion. At the same time, she admits, "I think it's something that filters through the culture. It's hard to say which came first, the chicken or the egg, but seeing intact, well-adjusted, public gay and lesbian families certainly impacts judges, and they help to make those families happen, as well... The families exist no matter what, and eventually judges realize that."
Courting Change also looks at how an expansion of adoption and custody rights for LGBT families will impact marriage equality. While they may be mutually beneficial, Richman recommends pursuing custody and adoption rights independently from marriage equality, both to protect those who choose not to marry, and also because parental rights have proven less controversial.
Part legal history and part recommendations for future strategies, Courting Change is a fascinating study of LGBT family law. It is not a light read, but it is a rewarding and recommended one for LGBT parents and rights advocates.
(Originally appeared in Bay Windows, February 4, 2009.)