Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    

CA Case About Hierarchy–Too Many Dads?

A few days back I wrote a couple of broad posts about the hierarchy of parenthood.  They were pretty abstract, not rooted in any case.  But here is a recent case  from California that shows what I mean. 

Maybe I should note first that hierarchy cases usually arise in a specific circumstance–when more people are claiming status as legal parents than can be allowed.   So here, for example, two men claim to be the father but only one can be recognized as a father.  

When this happens the court must choose among the contestants.   That might mean making an individualized decision about the best interest of a child, but for reasons I discussed earlier it more typically means reference to some hierarchy.   Just as in poker, a full house beats two pair, so in parenthood, some grounds for claiming parenthood will beat others.  

 I’d distinguish this from two other situations.  Sometimes we’re looking for someone to take on the status (and obligations) of  parent and we are short of volunteers.  When this happens, the court just needs to find someone it can assign the role and there is generally no comparison among possible candidates–after all, the premise of this is that we are short of volunteers.  

News From Australia: How Many Parents and Why?

I’ve been mulling over a recent news story from Australia that someone sent to me.  It’s a rather complicated tale.   

 Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years.  During that time, each of them gave birth to a child.   Ms. Halifax used sperm from a family friend, identified as  Mr. Dalton.  That child is now seven.  Ms. Fabian used sperm from an anonymous donor.   That child, a girl, is the subject of the litigation.  She is now three. 

The two women separated when the daughter was 20 months old.  At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales.    Ms. Fabian now wants to return to New South Wales.

Her request to move is being opposed not only by her former partner, Ms.  Halifax, but also by a gay male couple.   According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton.   An Australian court has determined that she should not move while the requests of the various parties are considered.     

The Hierarchy of Parenthood, II

Yesterday I began to consider whether there needs to be some consistent hierarchy among the various tests for who gets to be a legal parent.   It will be a good deal easier for you to follow this discussion of you read yesterday’s post first.    While some of what I have to say here today is repetitive, it’s a bit more organized and also expanded.  

Yesterday I laid out six possible tests for legal parentage, each of which is used at least some of the time in some places.   I’ve been thinking about the thought-process that has to accompany trying to develop an answer to the “do we need a hierarchy” question.  

Perhaps the first thing to do is to examine each test and consider the arguments for an against it.  I think for the most part I’ve done this in various posts over the last nearly-two years, so for the moment I’ll skip it.  (If you are interested, do feel free to poke around in the archives.  You can try using the relevant tags, which should be helpful.)  

Is There A Hierarchy of Parenthood?

My main purpose in starting and maintaining this blog is to consider the question of who the law should recognize as a parent.   I take individual cases and news events as they come and try to use them to illustrate various points–how the law is, how it might be, where it is good, where it is bad, and so on.   But from time to time I think it is useful to step back and think more broadly.   I’ll take this as one of those times. 

There are a number of different tests you might use to determine who the parents of a child are.  Each has strengths and weaknesses, which are discussed elsewhere on the blog.   Part of the challenge is that the question arises in so many different situations.   ART in particular gives us a whole range of new complications, but there are plenty even without that.  

Possible tests include :

–Genetics–that is, the people whose egg/sperm are used;

–Intent–the people who intend to be the parents of the child, at some identified critical point (presumably before the child is concieved, certianly before the child is born);

–Function–the people who act as the parent of the child for a some specfied period of time (could be fixed, like two years, or could be defined as something like “a substantial period given the age of the child.) 

Some Short (But Hard) Questions for the New Year

First off, tonight at sundown marks the beginning of the Jewish New Year.  L’Shana Tova.   I hope the year is a sweet one for all of you.  

In light of the holiday, I’m going to keep this short.   The active conversation over the last days has led me to reflect on some recurrent questions. 

Are people who are genetically related to their children better parents than those who are not?   If the answer to this question were clear and simple it might matter to my thinking, particularly if we want to generally assign parentage in a way that is beneficial to children. 

But the only thing I’m sure of is that the answer is neither clear nor simple.  

Lesbian Custody–Bits and Pieces

Time to offer a small note on a couple of developments from the last few days.    Both concern lesbian mothers and both are discussed further on other great blogs–I’ll link accordingly. 

New York:   I’m listing this one first because it’s the more important in the long-run.  I wrote some time agoabout a NY case involving a dispute between two lesbian moms.    I won’t recap that discussion here–you can easily go read it.  The bottom line is that a lesbian mother lost because her ex invoked an existing New York precedent, Alison D. v. Virgina M, that rejects the idea that a second mother could be entitled to legal recognition by virtue of having played the role of parent for some time.   Put another way, Alison D v. Virgina M says that there are no de facto parents in New York State.   

The Problem with Bonding

I recently wrote about the undoubtedly unwanted bonds that exist between  Jaycee Dugard and her kidnapper.  Today there’s a story on the front page of the New York Times today that leads me to return to this topic.  

Leydi Mendoza and Danial Llares are parents of a 2 year-old, Elizabeth.   Mendoza was (and probably still is) in the NJ National Guard.  When Elizabeth was about one, she was deployed to Iraq.   At the time she left, Mendoza and Llares, who had separated, agreed on a shared custody arrangement for when she returned. 

Mendoza was in Iraq for ten months.  That’s a very long time in the life of a one-to-two year old.   When she returned, Llares sought to severely limit her time with Elizabeth, because it was “disruptive” to the child to spend time with a mother she no longer knew.  

News In Brief: NC Appellate Approval for Second-Parent Adoption

I’m going to interrupt my ongoing comparison of the Oregon and DC standards for parenthood via joint venture in order to discuss a new case from North Carolina.  It’s a mid-level appellate court case affirming the validity of what is effectively a second-parent adoption in the face of a challenge to it by one of the parties.  This is an important step forward for North Carolina law.  

Julia Boseman and Melissa Jarrell began a lesbian relationship in 1998.   They wanted to have children.   Jarrell gave birth to a child in 2002 following assisted insemination.   At that point, under North Carolina law, Jarrell was a legal parent (because she gave birth) and Boseman was not. 

Lesbian Mother/Grandparent Visitation, II

In my last post, I discussed a recent Indiana case at some length, outlining both basic facts and law.  You’ll probably be better off reading that post first.    Here I want to talk about what interests me about the opinion. 

This is one of those cases that illustrates exactly how important it is to be recognized in law as a parent to the child.   The mother prevails not because the court investigates which household would be the best place for the child to live and decides it is her household, but rather because she is a parent and so her decision about what is best is entitled to respect.     

The inquiry about which household is better—which generally lies at the core of a “best interests of the child” analysis—leaves the presiding judge an enormous amount of discretion to determine what she/he thinks is better.   This can be particularly treacherous a parent who does not conform to traditional model–a single mother, a lesbian mother, or a single lesbian mother, as BLH (the mother here) once was.