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.   As Professors Nancy Polikoff and Art Leonard have already discussed, Debra’s case has been accepted for review by the New York State Court of Appeals. That’s the highest court in New York, the one that issued the opinion in Alison D.  

I’ve little to add to what’s been said.  It’s very likely that the New York court will either reaffirm Alison D (to put to rest the notion that lower court’s can work around it) or over-rule Alison D and grant some form of recognition for de facto parents.  Either action would be major news. 

Alison D was decided in 1991.   That’s a very long time in the development of lesbian/gay law.   There’s good reason to be optimistic, even as there is reason to worry.   One particular thing worries me:  It’s now fairly easy to conduct a second-parent adoption in New York.    Alison D. didn’t do that and neither did Debra.  I worry that this failure to adopt will be held against Debra.   There’s so many reasons these adoptions don’t get done, among them time/money/access to lawyers/ and knowledge of the law .   We’ll see what the court makes if it, I guess. 

Texas:   Via Professor Polikoff, news of yet another intra-lesbian disupte, this one with a bad outcome.    You can also read the whole opinion, which is a bit of a chore.     It makes me conscious of the degree to which family law is local and the language does vary.  

The most I have to say about this one is really a non-lawyer’s point.   The opinion is so focussed on the small details and intricacies of “conservatorship” (a word I’ve not seen in too many state’s family laws) that you feel like the larger points about the family at issue get lost.   I’m not saying it is wrong to be methodical and to examine the law and preceeding cases carefully–that’s after all what I teach students to do.   Yet at the same time, there is a bigger picture.  

As is always the case, I don’t have any special access to the facts of the Texas case.   I only know the words the court put on paper.   But somewhere in all that language there is a real family with real children.   It’s too easy to forget that when you read about standing and all the other doctrines invoked.   But then, maybe I put too much stock in empathy as a judicial value.

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