Yesterday I wrote about how courts are sometimes more inclined to respond to the individual equity claims of lesbian families than legislatures might be. But alas, the key word there is “sometimes.” Courts are not always affirming. It’s probably not surprising that this seems to be particularly true when the challenge to a lesbian family comes from within that family.
There is yet another case that I am sorry to say is an of a lesbian refusing to recognize the relationship between her former partner and their child. (I’m sorry to say that I’ve commented on many similar cases in the past year-and-a-half. Here’s one, and many of them are collected under the tag “second-parent.) This case was brought in Lousiana, and given the response of Louisiana in the birth certificate case, the opinion probably shouldn’t be surprising.
I cannot link you to the actual opinion, which is as yet unpublished. The case is Black v. Simms, published by the Court of Appeal of Louisiana, Third Circuit on June 10.
Kimberlee Black and Kimberly Simms were a lesbian couple in Shreveport, Louisiana. In 2000 Simms gave birth to a daughter ( Braelyn). In 2002 Black gave birth to a son (Eli). Both children were concieved through donor insemination, using the same donor. Louisiana recognizes each woman as the legal parent of the child she gave birth to, but it does not recognize any legal relationship between the child and the partner of the woman who gave birth.
One way to gain legal recognition in this situation is to complete a second-parent adoption (that’s discussed in my last post.) But Louisiana does not allow second-parent adoptions and, as the birth certificate case demonstrates, is even reluctant to recognize out-of-state second-parent adoptions. In any event, neither woman here completed a second-parent adoption.
Simms and Black lived together with both children until 2004. At that point Simms and their daughter, Braelyn, moved out. Some time after that, Simms and Braelyn ended up moving in with Black and Black’s parents. Black’s parents played a significant role in the lives of both children until Simms moved out again in 2006. Very shortly after that, Simms cut-off the Blacks’ access to Braelyn.
The court’s opinion clearly illustrates the importance of legal recognition as a parent. Because Simms is a parent and Black is not, Black must make an extraordinary showing of harm to Braelyn in order to be able to even visit with the child. This is necessary in order to preserve Simms’ parental rights. Black has no comparable rights, since she is not a parent. Were Black a parent, her right to continue contact with Braelyn would be assumed. Because she is not, she bears a heavy burden of proof.
The court rejects Black’s argument that she should be entitled to recogntion of some sort because of her relationship with the child. While the opinion professes neutrality (a heterosexual couple would be treated seriously) the court ignores the effect of the marital presumption: If a heterosexual couple is married and the woman gives birth to the child, her husband is legally recognized as the father of a child. Thus, while it might be true that an unmarried heterosexual couple in Louisiana would be treated as Black and Simms are, that couple could choose to marry and ensure legal status for both parents. In this regard, you could see this opinion as evidence of the superior rights of married as opposed to unmarried parents.
Even given the standard imposed on Black–that she must show substantial harm to Braelyn, you might think a court would rule in her favor. After all, Simms has deprived Braelyn not only of contact with Black (Braelyn’s other parent), but also of contact with her brother (Eli) and with the surviving grandparent. Yet the court is unwilling to accord this deprivation the weight they would, I strongly suspect, accord a similiar deprivation in the context of a more “traditional” family.