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Here’s a recent instance of an all-too frequent phenomenon. Here are the basic facts:   Two women in a lesbian relationship decided to have a child together. One became pregnant via insemination with donor sperm. A child is born and the women begin to raise the child together. (There’s more detail in the opinion, but I want to tell a stripped down version of the common story.) At some point, things fall apart. The women separate and fight over custody of the child.

This much of the story is regrettably common for heterosexual and lesbian couples alike. (I”m omitting gay men from this statement because I don’t know of an opinion documenting a custody fight between two gay men.) In cases involving lesbian mothers, however, the custody dispute may involve assertions by one woman that the other is not a parent of the child.  If this can be established–if only one of the women is a parent–then the case is simple.  A parent has a superior right to custody of a child.   As long as the parent is fit, she will win nearly every time.  

The woman who gives birth to the child will always be a legal parent.  (Except in cases of surrogacy, where results vary state to state, a woman who gives birth is always a parent.)   It is the status of the woman who did not give birth that can be called into question.   If she has adopted (through a second parent adoption) then she, too, can claim status as a legal parent.  But if she cannot or has not adopted, she may not be a legal parent.  Some states might recognize her as a de facto parent–and that indeed was the route by which she sought parenthood in this new case–but many states would not.

In other words, no matter what role she played in the child’s life, no matter for how long, the law might deny her recognition as a legal parent and deprive her of access to her child.    It’s a terrible fate to contemplate and one that I’ve written about in a more scholarly forum.   (You’ll need to register for this link, though it is free.)    It’s never good to find another version of the same sad story, but that’s what this case is.