Thursday, October 20, 2005

Custody Battles: How to Define Families?

(Link) With a variety of laws and precendents on the books, determining "what makes a family" isn't always as easy as replicating the "nuclear family ideal."

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LNewsEditor said...

JIC Post:
By Laura Kiritsy
Bay Windows

Up until June of 2004, Cori Collins was the stay-at-home mom of the two children she and her former partner Karen Monti were raising together. While Monti worked a full-time job outside the home, Collins's days were consumed with taking "Lisa," who is now 6-years-old, and "Joanie," age 3, to playdates, the park or watching them play together at home. "I saw the kids bonding, I saw them love each other, I would play with them," says Collins. "Karen would come home later in the evening either after the kids were fed and I'd have dinner ready for her so I was like 'the typical housewife.'" (The names of the children mentioned in this article have been changed to protect their identity.)

Standing in the kitchen of Collins's West Newton home on a recent Saturday morning, Collins's attorney, Paul Neustadt, is holding a photo of the family in happier times. It shows the two moms huddled next to each other in front of a Christmas tree. Each holds a child in her lap. "This is what this case is about," says Neustadt. "Is what you see there a family or not?"

That's now a question for Suffolk Probate and Family Court Judge John M. Smoot, as Collins and Monti completely disagree on the answer. Collins says yes. Monti, in her affidavit responding to Collins's complaint, says no. (Monti's attorney, Jo Ann Citron, declined to comment for this story; she also declined to allow Monti to be interviewed.)

Complicating the situation is the fact that Collins is Lisa's only adoptive parent; Monti is Joanie's only adoptive parent. The couple never completed second-parent adoptions of the children - although after Collins brought Lisa home from Russia in May of 2000, Monti became her legal co-guardian. Collins and Monti ended their nine-year relationship in June 2004.

Now, in a trial that began Oct. 17, Collins is suing Monti for joint legal and physical custody of Joanie, arguing that she and Monti jointly agreed to adopt her and that she was a full-time parent to her from the time Monti completed Joanie's international adoption in October 2002 until the couple split up. Because she has no legal ties to Joanie, she is asking that Judge Smoot declare her a de facto parent, a legal standing that would entitle her to parental rights, and, she says, preserve the sibling relationship between Lisa and Joanie.

Needless to say, Collins and her attorney have their work cut out for them. Even Neustadt acknowledges, "Karen has some legal ground for her position. The legal ground is there's no provision in the statutory scheme to give the rights that Cori's seeking." In other words, despite Collins's claim that she and Monti jointly decided to create a family through adoption, and held themselves out to the world as such, in the absence of a legal paper trail, there is merit to Monti's argument that her ex-partner has no right to be involved in Joanie's life. (Pending resolution of the dispute, Collins has weekly visitation with Joanie.)

Family laws that were not created with same-sex families in mind, or statutes that are outright homophobic, are all too often wielded by biological or adoptive parents in custody battles involving same-sex parents. As Kate Kendell, executive director of the National Center for Lesbian Rights (NCLR) puts it, "While I blame to a significant degree the individuals themselves who deploy these tactics, equally or more to blame is a legal system that lets them and that elevates formality over the reality of this family's life. Who gives a shit if they have 'x' document, 'y' document, 'z' document if the facts are overwhelming that this was a family, functioned as a family, was intended to be a family and the children believe that they are part of a family with these two parents? That should be the end of the inquiry."

The proliferation of such cases (involving, for the most part, lesbians - it is still unusual to hear about gay dads engaged in custody battles) prompted Gay and Lesbian Advocates and Defenders (GLAD), NCLR, Lambda Legal Defense and Education, the Family Pride Coalition and the ACLU's Lesbian and Gay Rights Project to issue an extraordinary plea to the community in 1999: fight fair. "Protecting Families: Standards for Custody in Same-Sex Relationships," is a manifesto that urges LGBT parents enduring a break up to base custody decisions on their children's best interest "in the context of their actual relationships with each parent rather than on the relationship between the parents, or on the existence of a legal relationship with one of those parents." Among the 10 standards laid out by the legal advocates: "Be honest of existing relationships regardless of legal labels," "Honor your agreements," both written and verbal and "Treat homophobic law and sentiments as off limits." (See "Rules of engagement," below.)

Mary Bonauto, GLAD's civil rights project director and the primary author of "Protecting Families," says the document resulted not from a rash of ugly custody disputes at that particular time, but because of the fact that "this is a steady problem. And to me there's just no greater sign of disrespect to our families than having people in our own community disrespecting our families." Bonauto said the cases hit her radar screen from her earliest days at GLAD 15 years ago. Many of them were lost at the lowest levels of the court, she notes, "and we decided not to appeal because we were just not convinced at that point that we would win a case in Massachusetts." Ironically, shortly after "Protecting Families" was issued, the Massachusetts Supreme Judicial Court broke ground in the case of E.N.O. v. L.M.N., in which they granted de facto parent status to a non-biological mother whose ex-partner was seeking sole custody of the child that the couple had agreed to raise together.

As Collins's story and so many others like it illustrate, however, the plea to fight fair has often fallen on deaf ears. Following their break-up, Monti terminated her legal co-guardianship of Lisa, effectively ending her legal responsibility to the girl. In the application for termination on file at Suffolk Probate Court, Monti claims that she only became the Lisa's guardian so that the child could receive health insurance coverage while she and Collins lived in her home. In a legal filing disputing Collins's claim of de facto parenthood, Monti alleges that she decided to adopt Joanie in 2002 without consulting Collins and that, "for the 19 ½ months during which Collins lived in the same household as [Joanie], Monti did not encourage, agree or consent to Collins's being a parent to [Joanie]." Citing legal precedent and accepted principles set forth by the American Law Institute, Monti argues that Collins is not a de facto parent because she did not reside with Joanie for a period of two years or more and that Monti never consented to Collins's forming a parent-child relationship with Joanie. Monti's affidavit described Collins' role in Joanie's life this way: "From October 27, 2002 until June 7, 2004, Collins lived in the same house as [Joanie] and performed certain caretaking functions for the child during the day." Monti also claims that it would not be in Joanie's best interest for Collins to have a de facto parent relationship with Joanie.

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A spate of recent court decisions have seen justices look beyond the paper trail to the reality of how these familes lived prior to the parents' break up. "I certainly think the trend is that courts are more often being asked to wrestle with these questions about, how do we define family? Because the reality is that more and more people ... have family constellations that do not fit a mother and a father and 2.1 children and a white picket fence," says Jennifer Chrisler, executive director of the Family Pride Coalition, a national LGBT family advocacy organization. "Invariably, as the makeup of our families change then courts need to wrestle with, how do we define what family is, and then, what are the rights and responsibilities associated with that."

Three decisions by the California Supreme Court on Aug. 22 heralded a significant shift. Each of the cases involved disputes between lesbian couples who decided to have children through assisted reproduction and later broke up. In the most high-profile case, Elisa B. v. Superior Court, Emily B. and Elisa B. agreed to have children together using artificial insemination by an anonymous sperm donor. Emily gave birth to twins Kaia and Ry, in 1998. The couple decided that Emily would be a stay-at-home parent since Elisa had a better paying job. However, they did not complete a second-parent adoption and did not register as legal domestic partners despite California laws allowing them to do both. Emily and Elisa split up 18 months later, and Elisa eventually stopped paying child support and cut off all contact with the twins in an attempt to deny her parenthood. The court ruled that after agreeing to bring the children into the world, raise them with her lesbian partner and hold them out as her own, Elisa was legally obligated to support them.

In the case of K.M. v. E.G., a fertilized egg from K.M. was implanted in her partner E.G., who gave birth to twins in 1996. After the couple broke up in 2002, E.G. denied K.M. access to the children and made the claim that she was the sole parent. The California high court held that both women are the twins' legal parents.

In Kristine H. v. Lisa R., a lesbian couple conceived a child through assisted reproduction and successfully sought a court judgment prior to the child's birth declaring that both women were the child's legal parents. The couple split two-and-a-half years later, at which time the birth mother filed an action seeking to vacate the judgment and have the court declare that she was the child's only parent. But the court quashed the birth mother's challenge of the judgment and determined that both women are the child's legal parents.

More recently, on Sept. 27, the Superior Court of Pennsylvania upheld a lower-court ruling awarding primary custody to a non-biological lesbian mother. During their 14-year relationship, Patricia Jones and Ellen Boring became the parents of twin boys birthed by Boring. The couple split in 2001, four years after the boys were born. According to the court decision, in 2004 Jones sought primary custody of the boys out of concern about Boring's parenting abilities. Boring argued against giving Jones custody on the grounds that because she was the biological parent, she should automatically retain custody. Moreover, according to court records, Boring made it clear in court testimony that she did not want Jones to have any significant role in the lives of the twins. The courts disagreed, holding that it was in the children's best interests for them to live with Jones.

Those decisions stand in contrast with the Massachusetts Supreme Judicial Court's ruling just last year that a woman who agreed to create a child with her lesbian partner through artificial insemination, but then ended the relationship before her partner gave birth, was not required to pay child support because their verbal agreement to have a child was not an enforceable contract under state law. At the time, GLAD's Bennett Klein, who argued the case, known as T.F. v. B.L., criticized the ruling "because it does not reflect the reality of children's lives today."

* * *

While the courts continue to grapple with the changing face of the family and the right-wing steps up legislative attacks on LGBT families by pushing constitutional amendments banning same-sex marriage, civil unions and second parent adoptions (as Oklahoma has done), gay parents involved in custody disputes, unlike their straight estranged heterosexual couples, have another club to wield: homophobia.

It was already working against Keri Lynn Jones when she and Cheryl Pike Barlow decided early in their relationship to have a child which they agreed Barlow would conceive through artificial insemination. In the couple's home state of Utah, second-parent adoptions by same-sex couples were outlawed in 2000. With that in mind, several months prior to the birth of their daughter "Gayle" in October 2001, the couple traveled to Vermont for a civil union; Jones was later named Gayle's legal co-guardian, according to court records. They executed wills and durable powers of attorney. In short, the did everything possible under state law to legally protect the family they had chosen to create. For more than two years, they lived together and held themselves out to the world as a family, with Jones working full time to support Barlow, a stay at home parent, and Gayle, who was on Jones's health insurance plan.

But when the relationship ended in 2003 because of Jones's infidelity, Barlow terminated the co-guardianship. For a year Jones saw little of her daughter, who is now four years old, until a district court judge ruled in December 2004 that under the legal principle of in loco parentis, whereby a person with no legal or blood ties to a child functions as their parent, Jones had established a parental relationship with Gayle and that it was in the child's best interest for them to have visitation. Barlow appealed the case to Utah's Supreme Court; oral arguments were presented on Aug. 30, with NCLR's Kendell representing Jones. Throughout the highly publicized case, Barlow has made much of the fact that she is now an ex-gay evangelical Christian who merely is trying to protect her child from what she now deems to be an unhealthy lifestyle. She was represented at oral arguments by the religious-right advocacy firm Alliance Defense Fund (ADF).

Just how far has Barlow taken her ex-gay shenanigans? According to news reports, after being hauled in to court last month for not following the court's visitation order (Barlow moved to Texas last May without informing Jones), Barlow argued that the visitation order conflicts with her Christian beliefs and expressed a fear that Jones would take their daughter to Gay Pride events, thus exposing her to "scantily clad men and drag queens." But under cross-examination, Barlow, once a well-known gay activist in Salt Lake City, testified that she herself had taken her infant daughter to Pride events on two occasions. (Barlow's ADF attorney, Frank Mylar, did not respond to an interview request to discuss the case.)

A similar dynamic has unfolded in the high profile case of Janet and Lisa Miller-Jenkins. The Miller-Jenkinses traveled from their home in Virginia for a Vermont civil union in 2000. Two years later, Lisa gave birth to a child through artificial insemination; shortly thereafter they moved to Vermont believing it was a more welcoming environment for their family, according to court records. But the relationship ended in 2003 and Lisa moved back to Virginia with the couple's daughter, Isabella, and began identifying as ex-gay. Upon dissolving their civil union in June 2004, a Vermont judge granted Janet visitation. Less than a month later, on July 1 - the very day Virginia's Affirmation of Marriage Act, which bans on the recognition of civil unions, took effect - Lisa filed a complaint asking a Virginia court to redecide the case and declare Lisa Isabella's sole parent. She also asked the court to deny Janet any parental rights or visitation. Invoking the new law, a Virginia judge did just that. (Janet's appeal of that ruling was heard by the Appeals Court of Virginia on Sept. 14; the court could rule at any time.) Lisa has also been aided in her effort to carve Janet out of her daughter's life by groups like Vermont Renewal, an anti-civil union organization that describes Lisa as an "ex-lesbian" in the fundraising appeals it has sent out for her legal defense.

As the courts in Vermont and Virginia consider the Miller-Jenkins case, Janet, meanwhile, has not seen her daughter in more than a year, says Jennifer Levi, a GLAD attorney who argued Janet's appeal to the Vermont Supreme Court. Janet did not respond to an interview request made through Levi.

Jones has been slightly more fortunate. Twice a month, she flies from Salt Lake City to San Antonio, Texas, where she and Gayle enjoy day-long visits on Saturday and Sunday. Jones stays at the same hotel each time, "and I bring her whole bedroom every single other weekend," she says. "I know that sounds crazy but I really want her to be comfortable and so I bring a lot of her dress-up things and just I just try to make it the same every single time I'm there." They spend their time at a nearby zoo; they swim; they curl up on the couch and watch movies. And while she takes pains to make her daughter comfortable, Jones herself never feels secure. "It is really painful because I see her every weekend without knowing that I'm going to see her in two more weekends while we're waiting for this ruling to come out, not really knowing when it's going to come out and what they're going to say," Jones explains. "I really have no idea - if the ruling comes back and it's negative, was my last trip there the last trip that I see her? It doesn't ever feel comfortable to me."

It's a position she never imagined she'd be in when she assisted Barlow in giving birth to their daughter four years ago. Jones is waiting for a court to affirm what she knows to be the truth: that she is a mom. "It is seriously one of the most painful things I've ever dealt with in my life," she says of having to prove her parentage. "I've had so many people say, 'Well tell me how you feel about her?' In every way possible she is my daughter and I don't even think about having to prove [that]."

Jones wryly recalls that early in the court proceedings her attorney told her she needed to itemize every penny she had ever spent on Gayle in an effort to prove she had acted as her parent. "You think, well this was my life. Cheryl was a stay at home mom for two years and there wasn't anything that I didn't buy. And you don't think about having to prove what you bought - I mean, how do you even look that up? It was just the weirdest thing because everything is so natural and to say that she's my daughter just really explains it to me and it's really hard to really be more exact than that. That's just the way it is. It's all she's ever known."

* * * * *

Rules of engagement

1. Be honest about existing relationships regardless of legal labels.
2. Consider the dispute from the perspective of the child or children.
3. Try to reach a voluntary resolution.
4. Try to maintain continuity for the child.
5. Remember that breaking up is hard to do.
6. Seriously investigate allegations of abuse in determining what is best for the child.
7. Honor your agreements.
8. The absence of legal documents is not determinative of the issues.
9. Treat litigation as a last resort.
10. Treat homophobic law and sentiments as off limits.

- from "Protecting Families: Standards for Custody in Same-Sex Relationships"