Short Follow Up on Montana Case

Yesterday I commented on a new decision of the Montana Supreme Court.   Here’s a bit of the local press coverage.  It makes me want to add several more quick observations. 

Hulstad and Maniaci were in a lesbian relationship.   While this is evident from the majority’s opinion, it is of no legal importance.   The rationale does not hinge at all on issues of sexuality.  That means the opinion applies to many people who are not lesbians as well.  

While this isn’t unusual (many of the de facto parent opinions share this feature) it’s also a little curious.  For the press, the fact that this is a same-sex couple is news-worthy–you can tell that from the article.   It’s also important to the lesbian community and to the losing side and to the concurrence.  

Montana Recognizes Lesbian Mother

Back in May I commented on a case (Kulstad v. Maniaci) that had been argued before the Montana Supreme Court.   It’s now been decided.   A good decision for lesbian families. 

I ran through the facts in my last post, but I’ll summarize them here, too.    Michelle Kulstad and Barbara Maniaci were a lesbian couple.  In February, 2001, the opportunity to adopt a child, LM,  arose.  Kulstad and Maniaci agreed they would parent the child together and participated in a home study in which it was clear that they planned to co-parent.  But as is the case in many states, only one of them could adopt the child and they decided that Maniaci would adopt. 

In 2003 Maniaci wanted to adopt a second child.  Kulstad was initially resistant, but it was clear that if the child were adopted, both women would co-parent.  In the end, Maniaci adopted AM. 

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.   

News in Brief: Lesbian Mothers Gain Further Recognition in the UK

The UK has adopted regulations that allow the lesbian partner of a woman who gives birth following ART to be recognized as a parent from the time of birth.  This is quite similar to the standard enacted by statute in DC and by case law in Oregon.  

The general idea in all these instances is the same.   If a married heterosexual couple used ART in order for the woman to become pregnant, the husband would be legally recognized as a parent of the resulting child.   This is not because we would assume that he was genetically related to the child.   Given the use of ART, it’s quite likely that would not be true.   (There is a presumption that when any married woman gives birth her husband is the father, but this can typically be overcome by DNA testing.)  

Anyway, as I discussed last week the ART presumption is more specialized. 

Unwanted Bonds

I think I’d best start this post with a series of forceful disclaimers.  I’m going to comment on the story that has riveted many people the last few days, that of Jaycee Dugard, who was kidnapped and held more or less captive for 18 years by Phillip Garrido. 

So here are my disclaimers.   Given the little I know about what happened, I think it was truly horrific.  I have no sympathy for Garrido.  I do not think his actions become defensible because of the passage for time.   Additionally, from what I’ve read, I think Dugard coped with an impossible situation incredibly well.  She was 11 when she was kidnapped.  She was forcibly raped and bore two children in this fashion.  She lived in a primitive jail for most of the time. 

Now all that said, I’m struck by one paragraph in the NYT story I linked to:

Florida Lesbian/Gay Adoption Ban Argued

Yesterday an appellate court in Florida heard arguments in a case challenging the state’s ban on lesbian/gay adoption.   I wrote about the case some time ago when it was decided by the trial court.  

Frank Martin Gill has been a foster parent to two boys for over five years.   In 2006 he sought to adopt the boys.  Florida, however, has the most sweeping prohibition of lesbian/gay adoption of any state in the US.   (This is the legacy of Anita Bryant.)  Lesbians and gay men, whether single or in pairs, cannot are barred from adoption in Florida.  

The trial judge in Gill’s case found that this bar was irrational and struck it down.   The state appealed the ruling and that’s what was argued yesterday.

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. 

A Recent Louisiana Case and the Power of Adoption

There’s a case–not such a recent case, but one just came to light thanks to Professor Art Leonard’s watchful eyes–out of Louisiana that confirms an important point about the portability of adoption.    Professor Leonard’s post includes a good summary of the facts.  You can also read the full opinion.   It’s quite long.  

After being together as a couple for 17 years, June Mire and Angela Palazzolo decided to have a child.   When Palazzolo did not become pregnant via assisted insemination, Mire did.   She gave birth to a daughter, IP,  in January 1997.

While the couple had met in Louisiana and the eventual case is a Louisiana case, at the time of the insemination and birth, the couple lived in California.   Consistent with California law, Palazzolo completed a second-parent adoption in 1997.

Oregon Lesbian Mothers, II: The Portability Problem

Earlier today (yes, it looks like it might be two posts in one day) I wrote about a very interesting new Oregon case.   You would do best to read that entry, which includes a discussion of the case.   But the essence of it is that Sondra Shineovich was determined to be the legal parent of two children because she agreed to her partner’s conception of the children via donor insemination.  (There is Oregon law that states a married man would be the legal parent of children born to his wife under similar circumstances.)

There are several reasons why the ratification of this path to parenthood is an important development for lesbian mothers.  It is relatively automatic.   By undertaking the joint project of conception/birth of a child, both women aquire legal rights as parents.  No adoption is required and no one needs to wait and establish the track-record of a de facto parent.   (It’s worth noting that neither of these approaches would have helped Shineovich here as the women had separated by the birth of the second child.)  

Legal Parentage for Lesbian Mothers in Oregon

Here’s a new Oregon case that’s quite interesting.   There’s an excellent discussion of it at Professor Nancy Polikoff’s blog.   Some of what I say will doubtless be repetitive, but it’s an important enough development to warrant emphasis, I think.  

The case begins in that ordinary way–two women (a couple) who have had children together and then break up.   Sondra Shineovich and Sarah Kemp began living together in 1997.   In 2003 they decided to have children and Kemp became pregnant via assisted insemination.   A son, P, was born in 2004.  (As it happened the son was born in the brief period of time that Multnomah County was issuing marriage licenses to same-sex couples and Shineovich and Kemp married before the birth of P.  However, these marriages were subsequently voided and the marriage is, I think, of no legal consequence here.)   Shineovich established a parent/child relationship with P and Shineovich and Kemp operated as co-parents.  

In order to have a second child, Kemp again became pregnant through assisted insemination in 2006.   The parties separated during her pregnancy.   A, a daughter, was born in March 2007.     Kemp denied Shineovich contact with the children after Kempa nd Shineovich broke up.     Shineovich had not adopted either child. 

In many jurisdictions–perhaps in nearly all jurisdictions–this story would now take a darker turn.