I’m still playing catch-up, writing about cases from the end of the year. Here’s an interesting case out of CA. The full opinion is here. I’m sorry to say that it is yet another in the line of “lesbians behaving badly” cases–by which I mean cases where one lesbian co-mother attempts to use the law to deny and destroy her lesbian co-mother’s relationship with the children. But I’m happy to report that in this case, the attempt was unsuccessful.
This is also a case that shows the distorting influence of “Don’t Ask, Don’t Tell” in contexts where you might not expect to find it. And though it has been a year since the repeal of the policy was announced, you can also see that the lingering effect of “Don’t Ask, Don’t Tell” could last for some time.
In summarizing the facts, I’m going to focus on those around GB, the older of the two children at issue. This will make discussion a bit simpler. I’m happy to go into details about MB, born in 2004, in the comments or in another post if that seems important.
SY and SB were in a long-term lesbian relationship that began in 1993. The contours of the relationship were shaped by SY’s service as a colonel in the US Air Force Reserves. For instance, SY and SB maintained separate residences, even though they spent virtually all their time in SB’s house. This might well have been prudent since open cohabitation might have been deemed the equivalent of SY “telling” that she was a lesbian and hence subject her to dismissal from the Air Force.
SB wanted to have children and tried to get pregnant starting in 1994. She was unsuccessful. Eventually SB turned to adoption and in 1999 SB adopted GB.
Here’s the court’s description of SY’s participation in the GB’s early life:
S. Y. was in the hospital waiting room during G.B.‟s birth, and after he was born, S. B. brought him out to show her. S. Y. stayed in Redding until S. B. and G. B. were ready to come home. When G. B. was released from the hospital, S. B., S. Y., and G. B. returned to Sacramento together. S. Y. stayed with S. B. and G. B. most nights and every weekend, assisting in G. B.‟s care as much as S. B. would allow. She changed his diapers, helped bathe him, played with him, and prepared formula for S. B. to provide using a device designed to simulate breastfeeding. She paid for the updated home study for G. B.‟s adoption and purchased necessities, including formula, diapers, and baby food. In 2000, shortly after G. B. was born, S. Y., S. B., and G. B. travelled to Hawaii, and later went to Texas to visit S. Y.‟s parents.
There is one notable thing that SY did not do, however. She did not adopt or even seek to adopt GB. (California law permits second-parent adoption.) Eventually this omission becomes part of SB’s efforts to deny SY the status of parent. In general, however, SY’s active participation in GB’s life continued until 2009 (with one interruption during a separation of the parties.)
Now if SY had adopted the children, there would be no case here. Instead this would be a simple custody case between two legal parents. But absent the adoption. SB could and did assert that SY was not a parent to the children and, as you should know if you read this blog regularly, a non-parent will virtually always lose to a parent. So the question for the CA court was whether SY was entitled to status as a parent.
I realize now that there is too much to cover here in a single post, so let me close out this one by discussing the failure to adopt. SB could argue that this demonstrated a lack of intention to be a parent and/or a lack of commitment to the children and the relationship with them. This is where “Don’t Ask, Don’t Tell” most clearly casts its shadow.
In order to adopt, SY would have had to describe the nature of her relationship with both SB and the children. This, in her view (which it seems to me was likely correct) could be seen as “telling” and hence could lead to her dismissal from the air force. Her continued service depending on concealing her relationship which lead her to reject the possibility of legal action to formalize her relationships with the children. Thus does “Don’t Ask Don’t Tell” become a factor in family law even after its repeal.
As I say, there’s more to say about this case so I will return to it tomorrow.