Ellen Andersen

Lesbian behaving badly

Filed By Ellen Andersen | April 15, 2009 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: adoption rights, biological mom, law, lesbian couple, LGBT families, marriage, New York, rights

Last Thursday, an appellate court in NY ruled--in a unanimous, unsigned opinion--that Vermont civil unions don't count in determining who is and who isn't a parent for purposes of custody. More specifically, the court ruled that a NY woman whose same-sex partner gave birth to a child after the couple entered into a Vermont civil union (and also signed the NYC Domestic Partner registry, btw) has no standing to assert parental rights after the couple broke up. Since Debra (the non-biological mother) was neither a "biological" nor an "adoptive" parent, the court ruled, she simply doesn't count as a parent for purposes of New York custody law.

I think the ruling is both unwise and an unnecessarily narrow reading of both the relevant statutes and prior case law, and I hope the NY Court of Appeals (the state's highest court) will overturn it.

While I'm a little pissed at the court, I'm really pissed at Janice R. the biological mother.

I recognize that when a relationship ends, the voices of our better angels often get drowned out by rage. Divorce rarely brings out the best in people. I also realize issues relating to custody are often the hardest part of an already difficult situation. I've watched some people, both LGBT and straight, handle the "kid" part well when their relationships failed, and some handle it poorly. Janice, in my opinion, is firmly anchoring down the "poorly" side.

Here's the skinny:

Janice and Debra began their relationship in 2002 and moved in together in 2003. In October 2003 they registered as Domestic Partners in New York City, where they lived. In November, they went to Vermont and entered into a civil union. In December, their son "M.R." was born. The couple lived together for about 2 1/2 years after M.R.'s birth before splitting up and the appeals court found that Debra had a "loving and caring" parental relationship with the boy. Janice cut off Debra's contact with M.R. in May 2008 and shortly after that Debra filed suit, seeking joint legal and physical custody and parenting time (and also the restoration of telephone contact with M.R.).

As might be expected, Debra and Janice have very different interpretations of the contours of their relationship. As Art Leonard described on his blog,

Debra's petition to the court paints a detailed picture of a couple intending to create a family together, asserting her full participation in the decision to have a child, in assisting her partner through the pregnancy, and in parenting the child after it was born.

She further claims that Janice, a lawyer, had assured her that adoption was unnecessary because Janice "would never take M.R. away from her" and so they never pursued it.

Janice, both in her own words and through the words of her lawyer, tells a very different story. In her petition to the court in an earlier phase of the proceedings she argued that she agreed to the domestic partnership and civil union to placate her partner, but not with the intention of creating a legal family. (!)

Janice's lawyer diminishes Debra's status even further. As Newsday reported,the lawyer said "Debra was not a parent. She was not treated like a parent; she was treated like who she was. She was Janice's short-term girlfriend."

This is appalling behavior even by nasty custody fight standards, because it poses a real chance of doing much more than just further f**king up the children and adults involved, which is bad enough. It also has the potential to mess with the lives of LGBT parents and their kids in an entire state. The court in this case held that its decision was controlled by Matter of Alison D. v Virginia M., a 1991 NY case where a biological mother was successfully able to shut her former same-sex partner out of their children's lives by convincing the court she wasn't a parent under New York law. If Janice prevails in the NY Court of Appeals (I'm assuming the case will end up there), the law made in that case will in turn diminish the parental rights of subsequent LGBT parents. Remember, Janice isn't arguing that she's a better parent than Debra or is otherwise in a better position to care for their son. She's arguing that Debra isn't a parent at all, and that even the existence of a civil union doesn't count to establish parental intent, because civil unions themselves aren't real expressions of intent to create a legal family.

As appalling as it is, this case perfectly captures one of the most important legal reasons for same-sex couples to be able to marry and one of the most important reasons for same-sex marriages and civil unions to be recognized nationwide.

First, "marriage"--unlike "civil union"--carries with it a web of familial associations. Can you possibly imagine someone making the claim that she married her "short-term girlfriend" only to "placate her partner" and without intending to create a legal family? Any judge in the country would laugh that claim out of court on its face. (Whether the court would be able to recognize that marriage legally is a different question. Every judge would "get" that people create families when they marry.)

Second, the existing patchwork of legal recognitions allows people to evade the legal consequences of their actions by crossing state lines. (Andrew Koppelman has a great book on this). Under Vermont law, children born into an existing civil union are considered to be the legal children of both civil union partners. Which is great if you stay in Vermont, but lousy if you leave Vermont and go to a state that doesn't recognize civil unions. (New York recognizes same-sex marriages, but not civil unions.) Although Lisa Miller failed when she tried to use Virginia's anti-marriage amendment to deprive her ex- civil union partner of access to their child, she failed for some pretty case-specific reasons that probably won't apply to other LGBT people trying to use the lack of interstate recognition to push ex-partners away from their kids.

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.

From just reading these small exerts I totally believe that JANICE is lying thru her teeth. She claims she entered into a "Civil Union" just to placate Debra. Give me a break. BUT I also believe that Debra failed herself by believing Janice in that she didn't need to adopt because Janice would never deprive Debra of seeing the child. That to me is a red flag, after saying that if I were Debra I would have PUSHED for adoption even more. IF she had have adopted, then from what this article says, things would be fine for Debra and she WOULD have a legal right to see the child.

Anytime anyone gets a divorce they always forget the positive things they said about their relationship and about what is in the best interest of the child. They want everything for themselves and want to trash their partner/spouse when a relationship ends badly.

Agreed. Janice is no better than that women who broke up with her girlfriend and then fled to Virginia to hide behind that state's anti-gay laws.

Janice's behavior however shows us she is no real parent.

Ellen Andersen Ellen Andersen | April 15, 2009 1:51 PM

You're absolutely right, Christophe. All non-biological parents in same-sex relationships should go through the process of formal adoption, just to be on the safe side. Whether that's a possibility, however, varies from state to state. New York does permit so-called "second parent" adoptions and had Debra formally adopted, none of this could have happened.

Don Sherfick Don Sherfick | April 15, 2009 2:35 PM

Just goes to show that the struggle for marriage equality in some cases may mean having the same standards concerning the more unpleasant side of the marital equation, namely custody battles in divorce proceedings.

I'm curious.....did anyone argue that because marriage wasn't legally/practically available, civil unions were the nearest thing possible, and that this factor could have filled in the spaces as best as could be done regarding intent to form a family?

What one fails to realize that even upon being legally married, Debra still would have to legally adopt the child. As Debra still would have had no legal right to parent post divorce without the adoption according to the current law.

What is interesting also, is that there is no mention of financial assistance or discussions of impregnating Janice. That tends to weigh heavily on the courts systems of late as well.

Well put, Ellen! It's an appalling case, and one of the clearest reasons I've seen for why we need full marriage equality, not just civil unions.

I find it dismaying that the wishes of their child, and his best interest, do not seem to even be a part of this case. Doesn't he have an independent advocate or is his bio-mom calling all the shots as far as he's concerned?

Using children as a weapon in divorce cases is unconscionable but all too common, I guess. I'm sad for their child.

This woman is just as bad as one of those people who rallied to support prop 8. Seriously, we need to recognize that.

Ellen Andersen Ellen Andersen | April 16, 2009 11:31 AM

Part of Debra's initial petition asked the court to appoint an attorney to represent M.R.'s interests, Emelye. The court did so.

AngryFag, I actually think Janice's behavior is WORSE than Lisa Miller's behavior (she's the woman who tried to use Virginia's laws to keep her ex-partner from their child.) At least Lisa Miller renounced the "homosexual lifestyle." What does she care if her actions had the potential to damage the rights of other LGBT parents? Janice, as far as I know, continues to identify as a lesbian and yet is using discriminatory laws in a manner designed to harm other LGBT people -- not just her -ex -- but the community more broadly. That, to my mind, is more morally reprehensible.

Ellen Andersen Ellen Andersen | April 16, 2009 11:41 AM

Part of Debra's initial petition asked the court to appoint an attorney to represent M.R.'s interests, Emelye. The court did so.

AngryFag, I actually think Janice's behavior is WORSE than Lisa Miller's behavior (she's the woman who tried to use Virginia's laws to keep her ex-partner from their child.) At least Lisa Miller renounced the "homosexual lifestyle." What does she care if her actions had the potential to damage the rights of other LGBT parents? Janice, as far as I know, continues to identify as a lesbian and yet is using discriminatory laws in a manner designed to harm other LGBT people -- not just her -ex -- but the community more broadly. That, to my mind, is more morally reprehensible.

karen in kalifornia | April 16, 2009 5:38 PM

Alliance Defense Fund lawyers have their anti gay snots all over this one.
That organization is happy to help deny GLBT peoples their due.

karen in kalifornia | April 16, 2009 7:40 PM

Tomorrow, Friday, April 17th, ADF is interferring in yet another co-parenting situation in Montana. Looks like they are going to use the "short term girl" defense again.


CONTACT ADF MEDIA RELATIONS: (480) 444-0020 or www.telladf.org/pressroom

ADF attorney available to media following trial in Mont. parental rights case

ADF attorney to argue against ACLU attorney before Montana Supreme Court

WHO: ADF Senior Legal Counsel Austin R. Nimocks
WHAT: Oral arguments in Maniaci v. Kulstad
WHEN: Friday, April 17 at 9:30 a.m. MDT
WHERE: University Theatre, University of Montana, 32 Campus Dr., Missoula

MISSOULA, Mont. — Alliance Defense Fund Senior Legal Counsel Austin R. Nimocks will argue before the Montana Supreme Court Friday on behalf of a mother who is asking the court to reverse a judge’s decision to grant parental rights to a legal stranger to the mother’s children. The judge ruled that Dr. Barbara Maniaci’s former live-in girlfriend, who is represented by the American Civil Liberties Union, is entitled to parental rights simply because the two women lived together for a period of time and had a relationship with Maniaci’s children. Oral arguments will take place at the University of Montana.

“The fundamental rights of parents to raise children the way they see fit should not be threatened by the wishes and desires of a legal stranger,” said Nimocks. “Fit parents have the right and duty to raise their children, and both the United States and Montana supreme courts have repeatedly upheld that right. Granting acquaintances and roommates parental rights over the objections of fit parents would be a very dangerous precedent.”

Maniaci, who is now married, solely adopted two children, whom she cared for and supported. After she and her former girlfriend, Michelle Kulstad, ended their relationship, Kulstad, who has no legal or biological ties to either child, sought and obtained visitation and parental rights against the wishes of Maniaci, despite relevant Montana law.

The court allowed Kulstad to continue to partly control the lives of Maniaci’s children, over her objections, including their schooling and other activities. Kulstad was even expressly authorized to identify herself as the children’s “parent” to any person or agency.

In 2008, following a final hearing, a judge issued a ruling that ignored important Montana law and awarded parental rights to Kulstad. "