Of all the knock-down, drag-out fights for equal rights, the battle over who gets the children at the end of a same sex relationship is one of the most excruciating. Thanks to work by the National Center for Lesbian Rights and individual family law attorneys such as LA-based Roberta Bennett, California law recognizes the parenting rights of the non-biological parent after the couple slits up.
But too often, in an effort to defeat the former partner, the biological or adoptive parent will use antigay laws to win. In a ruling last Friday, that may no longer work in California.
As Nancy Polikoff reports on her blog Beyond (Straight and Gay) Marriage:
"On Friday, in S.Y. v. S.B., the California Third Appellate District upheld a trial court order that found S.Y. to be a parent of two children adopted by her partner, S.B. This case is significant because S.B. argued that her partner had not “received the children into her home” as required by statute because she maintained a separate residence for almost the entire 13+ years of their relationship. But the reason S.Y. maintained a separate home was because of the potential threat of Don’t Ask Don’t Tell to her 30 year career in the Air Force. I wrote about this case, and the impact of the end of DADT on same-sex couples with children, in September. The children were 10 and 5 when S.Y. filed a parentage action. It was two months after she and S.B. split up and a month after S.B. denied her access to the children."
That's right - S.B. used the fact that S.Y. was a Colonel in the Air Force Reserves and couldn't live with S.B. and the children lest she be outted and discharged under DADT as the legal basis for claiming S.Y. had no right to legal recognition as a parent. But S.Y.'s legal team methodically spelled out all the ways that S.B. had asked S.Y. to act like a parent, even when they were split up - actions the children felt and understood.
In the end, this case is important for its ability to see a family home even when one adult had a separate residence; to see consistent parenting in the midst of some instability in the adult couple relationship; and to find facts based on behavior, not thoughts.
NCLR was pleased, too:
"This was an important decision for families with adopted children," noted attorney Deborah Wald, who represented S.Y. on appeal. "The Court of Appeal clarified that when children are raised by same-sex parents but only one parent adopted the children, both parents should be legally recognized."
Prior California case law had already established that when one member of a same-sex couple gives birth to a child, who is then raised by both partners, both partners should be legally recognized as parents. This decision makes clear that this rule applies to children who are initially adopted into families headed by same-sex parents.
"We are very pleased that the court enforced California law, which clearly provides that children's relationships with the people who assume parental responsibility for them should be protected," said Catherine Sakimura, the Director of the National Center for Lesbian Rights' Family Protection Project. "California is a leader in recognizing that there are many different types of families and that it is good both for children and for society when the law supports existing family bonds."
S.Y. said: "I had my children with me this weekend, and for the first time in years I didn't have to be afraid that it would be the last time they spent a weekend with me. I am so grateful to the attorneys who helped me win my right to continue raising and supporting my kids--and to the court for seeing our family for what it is."
The case, S.Y. v. S.B., was decided by the Third Appellate District of the California Court of Appeal, which is based in Sacramento. S.Y. was represented in her appeal by Deborah Wald of Wald & Thorndal PC, and was represented at trial by Eileen S. Gillis.