Over the last year I’ve blogged about any number of cases like this one from New York. These are cases where, in the course of a struggle over the child, one woman asserts that the other is not a parent to the child. As a legal strategy, this is a powerful argument. If you are a parent and your adversary is not, you will almost always win the case. (I’ve discussed this feature of legal parenthood before.)
I find these cases and the frequency with which they arise quite distressing. (They are also, as I noted here, a phenomenon primarily associated with lesbian (as opposed to gay) parenting.) It isn’t simply that lesbians argue over child custody cases. That is probably just a regrettably human trait. It is the nature and implications of the particular arguments that are offered in some cases. To the extent the arguments offered undermine lesbian parents generally, the conduct of the litigation is, in my view, extremely problematic. It is doing the wrong, rather than the right thing.
It is one thing to argue that I am a better parent than you are, and that the child would be better off spending more time with me than with you. That is particular to the facts a specific case and doesn’t undermine lesbian/gay parenthood generally. It is quite different to assert that you are no more than a legal stranger to the child and that, as such, you have no rights to any contact at all, particularly if the heart of your argument is that you cannot be a parent because you did not give birth, or you did not adopt, or you are not genetically related to the child, or we are not married, or a child gets only one mother. These arguments undermine the status of all lesbian and gay families.
There is a bit of a middle ground, however, and it is possible that this is where some of the cases I’ve discussed arise. I think it is important to describe and recognize this ground.
It’s quite possible to recognize and affirm the general doctrine of de facto parentage, say (that’s the doctrine that often protects lesbian mothers who have not adopted their kids) and at the same time to assert that your former partner is not actually a de facto parent. This is simply disputing the facts in a particular case.
As I have been thinking about this, I think it is important to assert that one can be a lesbian mother, assert that a legal adversary is not a mother, and still be doing the right thing. Consider a case where there is a woman who is (at the outset of my story) undeniably a single lesbian mother. It needs to be possible for her to engage in lesbian relationships and not automatically transform any woman she dates into a mother. (This has to be true for single heterosexual women, too, of course, but for a variety of interesting reasons, it is less an issue for them.) So she needs to be able to argue that yes, she is a lesbian mother and yes, she has been in a relationship with this other woman but no, the other woman has not (as a matter of the facts of the case) attained the status of mother herself.
Is this what is going on in some of the cases I have blogged about? Perhaps. The thing is, I cannot really know. I write about judicial opinions and judicial opinions rarely present all the facts. They often take the facts in the light most favorable to one or the other party. Or they make findings of fact that may or may not accurately reflect the truth. I simply don’t (and really cannot) know the real facts in the cases I discuss. That’s important to keep in mind. I may not know enough to pass judgment on the specific people involved in the cases, but I can still offer opinions on particular courses of conduct as described by the courts.