Thursday, March 09, 2006

Family Court Rules For Joint Custody


(Link) A Delaware court allows a non-biologicial mom to be more than a source of child support checks for the triplets she and her partner raised.
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JIC Post:
By SEAN O'SULLIVAN
The News Journal


A lesbian may retain joint custody of triplets whom she helped the biological mother, her one-time partner, raise, the Delaware Supreme Court has ruled.

The decision, issued Wednesday by a three-judge panel, dismisses an appeal by "Erica Smith," that sought to block access to the children by her former partner, "Sheila Smith," arguing that Sheila Smith had no legal right to the children. A Delaware Family Court judge ruled in 2004 that Sheila Smith was a "de facto parent" and therefore entitled to joint custody.

Both women were assigned pseudonyms by the court, which is common practice with state Family Court decisions.

While the case had the potential to establish a significant precedent for same-sex couples in Delaware, the justices decided it in such a way that it did not.

Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, said the ruling left open the larger issue of same-sex rights.

"Basically, it didn't change the law. This particular case was dismissed for reasons that had nothing to do with the substantive matters being appealed," Fennell said. "I don't think it was a win or loss for either side."

The ACLU filed a friend of the court brief on Sheila Smith's behalf.

Attorney Shaku Bhaya, who specializes in gay and lesbian legal issues but was not associated with the case, agreed.

"The good news is that the state Supreme Court hasn't done anything to take away rights. The bad news is the Supreme Court hasn't done anything to affirm the rights" that were set in the Family Court decision, she said.

Attorneys for the two women in the case did not return phone calls Wednesday.

According to court records, Erica Smith and Sheila Smith began a relationship in 1994 and separated in 2003.

While together, Erica decided to take Sheila's last name, and the couple agreed to have children together. Both became pregnant through artificial insemination with donated sperm.

In 1997, Erica had triplets and Sheila gave birth to a girl. The two women used the same anonymous sperm donor, so the four children "are genetic half-siblings," the judges wrote.

The family lived together in a five-bedroom house in Delaware, and the couple jointly decided on names and shared parental responsibilities. This latter point was key to the Family Court ruling that Sheila Smith was a de facto parent.

Fennell said under state law, if a person agrees to take on the role of the parent and does so with the consent of the other person and, most important, acts as a parent for long enough for a "bond" to form with the child, then that person can be called a de facto parent, no matter whether a legal contract exists. In court papers, attorneys said the children call both women "mommy."

When the couple decided to separate in August 2003, they originally agreed that Sheila would be the "residential parent" of all four children and Erica would have visitation every day after school and on alternating weekends.

Change in family situation

Erica, however, changed her mind about the arrangement in December 2003 and took the triplets from Sheila's home.

Sheila subsequently sued for joint custody of the children, was declared a de facto parent in November 2004, and later was given joint custody with Erica.

Shortly thereafter, according to the court, Erica filed for retroactive child support from Sheila. Based on the joint custody and de facto parent decision, Sheila was required to pay Erica $721 a month for care of the triplets, an amount "which Sheila continues to pay today," according to the decision.

The court focused on that action by Erica in deciding to toss out her appeal.

In an opinion written by Justice Randy J. Holland, the court found that Erica had undermined her argument that Sheila had no legal claim on the children because she sought and accepted child support payments.

Holland wrote that Erica could not accept the benefits of the Family Court ruling when it came to money while at the same time rejecting it when it came to custody.

As a result, Holland wrote, "we do not reach the merits of the Family Court's decisions that determined Sheila to be a de facto parent of the triplets."

Effects of decision

Fennell said it was disappointing that the case did not set a clear precedent for same-sex couples, but she said she understood why the court ruled as it did.

"Certainly we would have liked a decision providing some clarity on the statutory scheme in Delaware. We didn't get that clarity this time. But the situation is likely to arise again," Fennell said.

"The reality is that many, many children live in homes with same-sex parents, and those children need the protection of law, just like every other child," she said.

Bhaya agreed, but said she was happy with the end result, "because now the parent who has been held to be obligated to pay child support also has the benefits of visitation and custody."

3/09/2006 11:15 AM

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