Lesbian Motherhood And The Lingering Impact of Don’t Ask, Don’t Tell

I’m still playing catch-up, writing about cases from the end of the year.   Here’s an interesting case out of CA.   The full opinion is here.  I’m sorry to say that it is yet another in the line of “lesbians behaving badly” cases–by which I mean cases where one lesbian co-mother attempts to use the law to deny and destroy her lesbian co-mother’s relationship with the children.   But I’m happy to report that in this case, the attempt was unsuccessful.

This is also a case that shows the distorting influence of “Don’t Ask, Don’t Tell” in contexts where you might not expect to find it.   And though it has been a year since the repeal of the policy was announced, you can also see that the lingering effect of “Don’t Ask, Don’t Tell” could last for some time. 

In summarizing the facts, I’m going to focus on those around GB, the older of the two children at issue.   This will make discussion a bit simpler.  I’m happy to go into details about MB, born in 2004, in the comments or in another post if that seems important.

SY and SB were in a long-term lesbian relationship that began in 1993.   The contours of the relationship were shaped by SY’s service as a colonel in the US Air Force Reserves.  For instance, SY and SB maintained separate residences, even though they spent virtually all their time in SB’s house.   This might well have been prudent since open cohabitation might have been deemed the equivalent of SY “telling” that she was a lesbian and hence subject her to dismissal from the Air Force.

SB wanted to have children and tried to get pregnant starting in 1994.  She was unsuccessful.   Eventually SB turned to adoption and in 1999 SB adopted GB.

Here’s the court’s description of SY’s participation in the GB’s early life:

S. Y. was in the hospital waiting room during G.B.‟s birth, and after he was born, S. B. brought him out to show her. S. Y. stayed in Redding until S. B. and G. B. were ready to come home. When G. B. was released from the hospital, S. B., S. Y., and G. B. returned to Sacramento together. S. Y. stayed with S. B. and G. B. most nights and every weekend, assisting in G. B.‟s care as much as S. B. would allow. She changed his diapers, helped bathe him, played with him, and prepared formula for S. B. to provide using a device designed to simulate breastfeeding. She paid for the updated home study for G. B.‟s adoption and purchased necessities, including formula, diapers, and baby food. In 2000, shortly after G. B. was born, S. Y., S. B., and G. B. travelled to Hawaii, and later went to Texas to visit S. Y.‟s parents.

There is one notable thing that SY did not do, however.  She did not adopt or even seek to adopt GB.  (California law permits second-parent adoption.)   Eventually this omission becomes part of SB’s efforts to deny SY the status of parent.   In general, however, SY’s active participation in GB’s life continued until 2009 (with one interruption during a separation of the parties.)

Now if SY had adopted the children, there would be no case here.  Instead this would be a simple custody case between two legal parents.  But absent the adoption. SB could and did assert that SY was not a parent to the children and, as you should know if you read this blog regularly, a non-parent will virtually always lose to a parent.   So the question for the CA court was whether SY was entitled to status as a parent.

I realize now that there is too much to cover here in a single post, so let me close out this one by discussing the failure to adopt.   SB could argue that this demonstrated a lack of intention to be a parent and/or a lack of commitment to the children and the relationship with them.    This is where “Don’t Ask, Don’t Tell” most clearly casts its shadow.

In order to adopt, SY would have had to describe the nature of her relationship with both SB and the children.  This, in her view (which it seems to me was likely correct) could be seen as “telling” and hence could lead to her dismissal from the air force.  Her continued service depending on concealing her relationship which lead her to reject the possibility of legal action to formalize her relationships with the children.   Thus does “Don’t Ask Don’t Tell” become a factor in family law even after its repeal.

As I say, there’s more to say about this case so I will return to it tomorrow.


5 responses to “Lesbian Motherhood And The Lingering Impact of Don’t Ask, Don’t Tell

  1. I actually see this as reasonable that if the non-adoptive parent can produce a legit reason why she was unable to adopt, it should count for something.
    This of course, is only in a case that adoption would have been otherwise legal in that locale. “I would have adopted if it was legal,” when it was not legal, shouldn’t count for much. That would make a mockery of law.

    • I’m not sure I agree with you. Or perhaps more accurately, I’m not sure what you mean and I may not agree with you.

      If you are allowed to adopt and you do not, a court might conclude your failure to adopt has some meaning. It might be taken to show that you didn’t want to be a legal parent. (Of cousre, it might also mean that you didn’t have the money to do an adoption or that you didn’t know you could do an adoption. Or there might be other circumstances, as was the case here.)

      By contrast, if you are not permitted to adopt, then your failure to adopt cannot be held against you, can it? Your failure to adopt doesn’t tell us anything.

      I think you’ve said something slightly different actually–that you’d be skeptical of someone saying “I would have adopted if I could” and I see your point there. But it’s the failure to adopt that SB is trying to use here and she’s trying to use it against SY. You cannot use the failure to adopt against a person if adoption is not permitted.

      • I’m approaching it from the opposite angle. If adoption is not legal, its not that we are holding anything against you, it’s that you can’t claim any considerations based on a nonexistant option that you would have like to have exercised.
        Applied here, If in our jurisdiction there is no such thing as a second parent adoption, than you can’t claim any consideration that an adoptive second parent would have received, because there is no such thing as an adoptive second parent. Credibility is not the issue.
        Whereas if you are in a jurisdiction that a legal second parent adoption exists, you are perhaps justified in putting forth a “would have” argument.

        • I do see your point, but it you actually look at the cases I think you might find that people who do not adopt are better of in jurisdictions where it is not permitted than in jurisdictions where it is permitted. If it is permitted but you do not do it, court’s will typically say that the absence of an adoption shows your failure to take measures to protect the relationship. That can count against you for a few different reasons–shows lack of intent, lack of relationship, etc. (There’s a fairly old Vermont case called Dexter v. Tichnal where this is the rationale, as I recall.)

          By contrast if the state doesn’t allow adoption they won’t hold it against you that you didn’t do it. But that said, your point does stand–a court might also hold that since state law doesn’t allow adoption the court should not create a legal doctrine that is akin to adoption by doing de facto parent.

          So perhaps we are both right, in different ways? At any rate, I don’t think we disagree.

  2. Can you imagine loosing your job over an issue like who you go home to at night? Your job where you go and do stuff that has like nothing to do with sex – she was a colonel in the air force my father in law was a colonel in the airforce as as far as I know there is no requirement for airforce colonels to date men, I don’t even think he shaved his legs. Ridiculous rules that serve no purpose.

    Does Air Gal have a case yeah I’d say so if she could demonstrate that her partner and partner’s child relied on her as a breadwinner and it was that job that would have been threatened had she gone through with the adoption. Problem she’d have to prove she bought something more substantial like maybe paid the rent or car payments groceries. I’m crossing the line into an area where I’ll be going against my own beliefs about parents and I guess adoptive parents having the right to exclude girlfriends boyfriends and ex spouses from laying claim to their children or adopted children.

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