West Virginia Lesbian Moms, II

I just wanted to get back to this thread before I completely lost my train of thought.   You might want to read my other post first, as it will cover the details that lead to this post.  

My taking off point is a case from last week in which the West Virginia Supreme Court determined that a young child should remain in her home with her lesbian foster moms.  In doing so, the court rejected a lower court’s conclusion that a more traditional married man/woman family would necessarily be a better place for the child.

That last post discussed a lot of the more specific comments on the case.  Here I want to broaden the discussion a bit.       

In its opinion the WV Supreme Court ends up focusing on what is in the best interests of BCG, a specific child.  Given that Kutil and Hess are the only parents BCG has ever known, and that they are doing a fine job, it’s not hard to conclude that it is better not to disrupt the family by removing the child.  

The trial court hadn’t really addressed this point directly.  Instead, it focused on an abstract and general proposition: It’s better for children to be raised in traditional family settings, with married male/female parents.   (As a subsidiary point, the trial judge noted that such a couple would be able to jointly adopt BCG, while Kutil and Hess, being unmarried, could not.) 

This proposition–that it is generally better for kids to be raised in married heterosexual families–is obviously hotly contested.   Though you can find a lot of evidence to show that kids raised in lesbian and gay households are pretty much the same as other kids, it’s still endlessly debated.  It’s the sort of question that is batted about in legislatures considering various adoption restrictions or even by electorates considering ballot measures.    It’s a question of what general policy should be.

In approaching this case, the West Virginia Supreme Court had to decide which question it was going to ask and then answer.   It could ask the case specific/child specific question (“What is best for BCG?”) or it could ask the general policy question (What is best for children generally?”)  Its choice of question mattered immensely.

As I said, the court here chose the child-specific question.  That’s not surprising.   Courts considering family law questions often face this dilemma.  Do they make judgments based on broad policy or do they make them based on specific facts.  I think they do commonly choose to make them based on specific facts–after all, the lives of individual children are at issue.  It’s hard (though not unknown) to sacrifice the well-being on an individual child for a broader policy.  

This can be enormously advantageous to lesbian and gay families, as it was to the one in West Virginia.   It allows courts to rule in their favor based on the realities before them rather than wading into broader political controversies.    

I think you can see something of the same dynamic at work in the development of the de facto parent doctrine.   Where a person has acted like a parent for a significant period of time–where a child believes that she or he is a parent–judges may sometimes be persuaded to confirm the child’s reality. 

Put slightly differently, family law decisions are sometimes based in reality and to the extent that lesbian and gay parents can create their own realities, the courts may ultimately confirm them.   (I say sometimes, and that’s critically important.  You can never rely on courts to do this, and you should never plan it this way.  It’s just that sometimes it will work out okay.) 

This brings me to my last point.   If you look back at the court’s opinion you’ll see that the child was placed with Hess and Kutil on December 24, 2007.  The original motion to remove the child was made on January 24, 2008–one month later.   It was made on the same basis that the lower court ruled–that a heterosexual family would be better.   At the time the motion was filed, my “reality of the child” argument was considerably weaker–after all, the child had only been with Kutil and Hess for a month.   Had the motion been granted at that time, this case would have looked entirely different.   By the time it reached the Supreme Court, BCG would have spent most of her life somewhere else, and the “reality of the child” argument would cut against Kutil and Hess.  

As is so often the case in family law, the passage of time, and the status quo during the passage of time, seem to be of outsized importance.

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