California court mulls parental rights in lesbian couple disputes

BY Advocate.com Editors

May 26 2005 12:00 AM ET

California's
highest court was asked to create a legal framework for what
constitutes a family as justices weighed parental rights for
lesbian couples who broke up after having children.
The state supreme court, hearing oral arguments
Tuesday in the cases of three women seeking child
custody or support from their former partners, pondered
whether children from same-sex households should be
treated the same under the law as out-of-wedlock
offspring of heterosexuals. Attorneys for some of the women and the
California attorney general argued that children
should be given the same protections they would have
with two traditional parents, since gays cannot marry and
may have legitimate reasons for not registering as
domestic partners or formally adopting their children.
They urged the court to apply long-standing laws
governing absent fathers to estranged gay and lesbian
couples who used reproductive science to conceive, a
practice that leaves one partner without a genetic
link to the family. "In every situation where possible, parentage
should be established," said Shannon Minter, legal
director for the National Center for Lesbian Rights,
arguing on behalf of a woman who wants to share
custody of the daughter her ex-partner conceived with a
sperm donor. "It seems very unfair to this particular
group of children to say that when assisted
reproduction results in being born to unmarried
same-sex couples, we can't establish parentage." On the other side are two women seeking to
retain sole custody of their children and one who
argues she shouldn't have to pay child support for her
former lover's twins. Their lawyers warned that if someone
without a biological, marital, or adoption-related
claim on a child can legally assert parental rights,
it would open the door to all sorts of custody disputes. "There will be no limit to the numbers of
companions, be they related or not, to single parents
making claims of parentage," said Diana Richmond,
representing a woman seeking sole custody of the twin girls
she bore with her former partner's donated eggs. "This
court would be substituting its judgment for what's
better for the children than the judgment of the
parent. " Several justices seemed inclined to side with
the women who want their former partners to live up to
the coparenting arrangements they made when starting a
family. "The legislature states there is a compelling
state interest in establishing paternity for a child,"
observed Associate Justice Joyce Kennard. Noting that Elisa B., the woman trying to avoid
paying child support to her partner's twins,
breast-fed the babies, took time off work to care for
them, and listed her partner as a dependent on her insurance
and tax returns, Kennard said it seems as if she
functioned as a "presumed parent." "Here, there was a
holding out of the party as the parent of the twins,"
Kennard said. But several other justices appeared worried
about permitting someone to make a claim to parenthood
simply because that person participated in the
planning of a pregnancy and helped care for a child. A
boyfriend, for instance, could claim to be the father
of the child his girlfriend had with another man.
"That seems to open up a lot of possibilities for
intrusion on the parent role by all sorts of people,
practical strangers," Associate Justice Janice Brown said. In a sign of the broad acceptance same-sex
parents have in California, the state attorney
general's office supported the mothers who asked the
justices for an updated interpretation of the state's
parental rights laws. Several child-advocacy
organizations filed friend-of-the-court briefs taking
the same side. After the three-hour hearing, the women
talked about how difficult it was to have their romantic
histories examined in a packed courtroom, but how
proud they were to be fighting for their children.
"It's been a tremendous experience and it's been
atrocious, and I'm going to celebrate Mother's Day with her
next year if it's the last thing I do," said Lisa R.,
a Los Angeles County woman who is seeking to uphold a
pre-birth court judgment that established her as the
second parent of the 5-year-old daughter her former partner
had with donated sperm. While Lisa R. has been able to visit the child
she feels is hers, a Marin County woman known as Kim
M. hasn't been as fortunate. Even though the twin
daughters her former partner gave birth to were conceived
with her eggs, lower courts ruled that Kim waived her
parental rights when she signed a standard donor
consent form before the medical procedure. Gay rights advocates said they were gratified
the justices agreed to hear the cases. "They
understand what's at stake here," said Kate Kendell,
executive director of the National Center for Lesbian
Rights. "From our point of view it's nothing less than
that children born through reproductive technology to
same-sex parents have the right to be treated
equally." (Lisa Leff, AP)

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