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So as the titled suggests, this takes up from the last post.   I’ll assume you’ve read that.   I want to spend a bit more time (and a few more electrons) pondering the reasons for the differences between claiming parenthood via holding out and claiming parenthood via the de facto route.

Here’s the key distinction to keep in mind:  It seems easier to acquire parental status by holding out than by the de facto parent route.  The de facto route is more complicated and seems to require you to meet a higher standard.   Not to mention that de facto parentage requires the consent of the pre-existing parents while holding out doesn’t seem to.   What that means is that some people might satisfy the holding out standard but not the de facto standard.

One thing worth noting might be the history of these two competing routes to parentage.   Holding out is the older of the two.  (Please note that I am not a historian and have not recently researched this.   This means I could be wrong, though I don’t think I am.  I will cheerfully stand corrected if need be.)   (more…)

An opinion just out that marks the end of a very long interstate struggle over parentage.   There’s a news story here, and if you’d like to read the actually opinion you can do that here.

I’m sorry to say that this case begins as yet another of those instances in which two lesbians who have been raising a child together separate on what can only be described as extremely hostile terms.   Here, as is all too often the case, one woman sought to terminate her former partner’s contact with the child, asserting she was not a parent.  (Remember that a non-parent will lose to a parent every time, unless the parent is deemed to be “

The problem in these cases is that often the law initially only recognizes one of the two women as a parent.   This is typically because one gives birth (and with birth comes legal parental status) or one initially adopts, sometimes because foreign countries (like India in the recent Maryland case) will not permit lesbians to adopt together.   The best way for the second mother to establish legal rights is to become a legal parent of the child, most frequently via a second-parent adoption.   If that doesn’t happen, a fall back position after a bad break-up is that the second woman is de facto parent, by virtue of her performance of parental duties for a significant period of time.    (more…)

Picking up after the long weekend (and judging from readership, I think everyone must have been off doing something?)

Relating to the earlier post about the new UK legislation: Here’s another news story on the “need for a father” amendment that was defeated. One thing this article makes clear that I had not seen spelled out before: Where lesbians in a relationship use IVF to conceive a child, both will be considered parents from the time of birth. No need for the woman who does not give birth to adopt the child via a second-parent adoption. This is the same presumption that operates generally for married couples, including married lesbian couples in Massachusetts. It also seems similar to a presumption under consideration in Australia that I wrote about a bit ago. (more…)

I wanted to pick up on a few points I left open the day before yesterday.   (The news from the UK interrupted me.   Go back to the original post on this case to read a summary of the facts and the ruling.  The opinion itself is here.)

The court suggests that it is important that Margaret did not adopt or try to adopt Maya.   I don’t know whether the court means to suggest that Margaret is in some way at fault here (and that losing contact with Maya is a reasonable sanction for that fault) or that Margaret’s failure to adopt demonstrates her lack of commitment.   Either way I find the reasoning troubling.

Of course it would be easier if Margaret had adopted Maya.   An adoptive parent is a legal parent (as the court recognizes with respect to Janice) and so there is no need to get to all these messy arguments.   But this doesn’t tell us about what importance should be attributed to the fact that she did not try to adopt Maya.  (more…)

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.   (more…)

Here’s a short news note from Australia about a child with three parents–two mothers and one father. The child, who is now nine, was conceived via donor insemination when the women were a lesbian couple. Though they have since separated, each remains a parent. The woman who did not give birth has recognized legal rights, as one might attain here through a second-parent adoption. By contrast, the sperm donor does not have recognized legal rights or obligations, but nevertheless functions as a parent.

Given how much parental status is bound up with gender, it’s not surprising that lesbian and gay families often raise challenging legal questions. In January I noted a case where the law recognized the sperm donor as a parent instead of the second mother. That’s not unusual as it comports with the one mother/one father norm of families. The family in this story is surely a sign of the times. The law recognizes the two mothers as parents. But stops short of affirming the reality of three parents in this child’s life. It may appear to be irrelevant in this particular case, since all the adults apparently respect and honor each others’ relationships with the child. Laudable though that is, legal recognition is critical in many contexts and in many relationships.

Since it is a holiday weekend and things are pretty quiet, I’m doing a bit of catch up. There are some interesting recent cases I’d been meaning to comment on. Here’s my chance.

It seems I haven’t mentioned second-parent adoption before, which actually surprises me. Now’s as good a time as any to run through this.

Generally speaking, when a child is adopted a new parent or set of parents take the place of the original parent or parents. That means that in the typical case, the rights of the existing parents are terminated and the adopting parent acquire rights instead.

But sometimes people really want to add an additional parent rather than substitute new for old.   For example, if couple have kids and one of them dies, the survivor becomes a single parent. That person might repartner or remarry. After a while, everyone might agree that the new person should become a legal parent. But no one wants the surviving parent to lose his/her rights.  What you really want to do is add a second-parent to the legal family.

(more…)

A quick note about a recent case reported on another blog. (It’s a great place for keeping up on legal developments relating to lesbians and gay men, by the way.) The case is, as the blog author suggests, a mess. Gay male sperm donor and lesbian mother in a struggle over parentage. She asserts he was intended to be a donor and not a father. He asserts the contrary. Her partner cannot adopt because he stands in the place of the second parent.

I won’t comment on it now. But the points Arthur Leonard makes are excellent. Where, indeed, is the best interest of the child.

I wanted to return to the case I mentioned a couple of days ag0–that new case from New York. I won’t recount the facts again. The earlier discussion is here.

Remember Ann’s partner, Carol? Is she a parent to the child? Maybe not enough facts, but we might make some assumptions (and if they are wrong, then all bets are off). Together, Carol and Ann created a family. They’ve lived together as a family the child’s entire life-eighteen years so far. Suppose Carol has acted for all that time. It seems to me that years of performance make her a parent. In this case it makes her a mother. Which means the child in the case does indeed have two parents, both of them mothers. (more…)