Lesbian Motherhood/Don’t Ask, Don’t Tell, II

I promised a follow-up to yesterday’s post and here it is.  If you haven’t read yesterday’s, then you should go back and do that now.    You can read about the case here or you can read the actual opinion of the court.

Remember that SY and SB were in a long-term lesbian relationship, but SY was a colonel in the US Air Force and so the relationship was something of a secret.   SB adopted two children.   When the women split up, SB claimed that SY wasn’t a parent and hence had no right to see the children.  Yesterday I noted that SB argued (unsuccessfully) that since SY hadn’t tried to adopt the children herself and that this should count against her.    The court rejected this argument, in part because an effort to adopt would have necessitated disclosing the relationship between SY and SB, which might well have ended SY’s military service.   (For more on this, see yesterday’s post.)

Once you decide that the failure to adopt isn’t disqualifying you get to what is really a more important question:   On what basis can SY claim parentage.   The court’s discussion here is interesting.

I’ve written quite a bit about the idea of a functional parent test on this blog.  (If you troll around using that tag you’ll find things.  It’s also sometimes called a de facto parent test.)   The de facto parent test has primarily been forged in cases involving disputes between lesbian co-parents, though it is in theory gender neutral.   If you look at the general elements the test requires, you’ll see it is hard to be a de facto parent–you have to do a lot to make the grade.  Notably, someone who fulfilled the breadwinner role–a role traditionally occupied by men–probably couldn’t make it as a de facto parent.

This issue rarely comes up, however, because there has been a different route by which men can claim what amounts to de facto parent status.   It’s parentage by virture of “holding out.”  The idea here is that if you take a child into your home and present it to all the world as your child and help support it, then it is presumed to be your child.  I guess the idea is that no man would do such things unless it was “his” child (whatever that means.)   Again, I’ve written about holding out.

The parallel evolutions of these doctrines resulted in a situation where it seemed that there was one test (holding out) for men claiming parentage by virtue of performance and a different (and more difficult) test for women claiming parentage on the same basis.    Given our general commitment to gender equity, this ought to seem problematic.

Holding out is often incorporated in state statutory schemes, and you can see the CA holding out provision here.  Note that by its terms it applies to men.   But then go and look at the court’s footnote 9 (bottom of page 12), which will take you to this provision.   “Insofar as practicable” CA will treat women and men similarly.   And on this basis, SY is presumed to be a parent if she held the child out as is required by the CA statute.   And, the court concludes, the trial judge correctly found that she did.

It’s a long and rather twisty road, but it seems to me that it leads to the right place.   For what it is worth, Washington has actually amended its statutes to make it clear that you’d use the holding out provisions in this case.   (Look at RCW 26.26.116(2).)  Either way, it seems reasonable to me to use the same standard for parentage for men and women in cases like these, and that’s just what the court in SY vs. SB has done.



17 responses to “Lesbian Motherhood/Don’t Ask, Don’t Tell, II

  1. I do not think it is discriminatory to apply the holding out doctrine to male partners and not female, simply because as you say Julie it is based on a presumption, and men and women are differently situated with regard to presumption as biological fact. similar to the marital presumption.
    However I have my doubts altogether about the holding out doctrine; i really think they should throw it out the window altogether It makes it all too easy for someone to walk off with someone else’s kid.
    I also think that the gender assumptions inherent in the law still exist in the culture, although not to the same extent. So applying them equally to men and women may not make sense in the way things actually happen in the culture. But unlike biological basis, I don’t think cultural basis is a justification for discrimination. So we end uup with a law that doesnt make sense which means perhaps we should re-evaluate the whole law instead of trying to extend it. I know, I know, eliminating a law is a much harder process.

    • I agree, I’d rather see that law gone and make the stepparent adoption process (in cases where there isn’t a second parent and the legal parent wants to coparent with their partner/spouse) easier. I don’t think it should become a he said/he said situation where parents can lose to their rights to sole custody of children they had alone prior to the relationship (or whose other parent died) even if they actively refuse to let the new partner or spouse adopt.

      • Suppose a person 1) allows another to play a parental role in a child’s life for some years but 2) doesn’t allow an that other person to adopt? This, it seems to me, is a real power play. It’s another one of those instances where I want to say “actions speak louder than words.” If you don’t want to co-parent, that’s fine–don’t, But if you co-parent, then you’ve made your choice. In this case, there’s very little question about the actual relationsips that were in play. That makes all the difference to me.

        I think about this from the point of view of the child sometimes. The child doesn’t really know/care about whether legal formalities have been followed. The reality of their lived experience is what they know and it seems to me the law ought to take that into account.

        • Well having this law could just end up leading to a lot of he said/she said situations. I think it should be simpler: if you want to coparent, you do a 2nd parent adoption (and the process for that type of adoption should be simpler, and requirements based on sexuality/whether the couple is married should be removed). If you don’t want to coparent, you don’t do a 2nd parent adoption.

          Otherwise, you will just end up with situations where it’s dragged out in court, there’s uncertainty in the life of the child, visitation may be denied when the 2nd person actually was acting as a parent, visitation may be forced when the 2nd person actually wasn’t acting as a parent at all, leading the courts to have to decide whether to sever a relationship that was never intended to exist in the first place, etc. And if the courts aren’t sure who to believe because the evidence was mixed, a true coparent may never get to see the child again, and a parent who continued to act as the only parent even though their partner lived in the house but didn’t participate in parenting besides babysitting the child once in a while may lose their sole custody rights.

          Some cases may be clear cut, but others may not be and take many years to be resolved while the child and parent(s) have to live with uncertainty.

          • And yes, I realize some of those things can still happen even when there was an adoption, but it reduces the likelihood of conflicting rulings, longer court cases as various pieces of evidence are argued over, and very clearly shows an intent to coparent.

            • I agree with one exception. An adoption should only be allowed in the case of a legally recognized relationship (be it marriage or other civil partnership). If the partners are not willing to legally to commit to eachother, how can we take them seriousy that they’re going to commit to the partner’s kid?

              • Well here’s a case that got dragged out for years, meanwhile there was court ordered visitation. The partner of the biological mother ultimately lost (the magistrate sided with her but the juvenile court, court of appeals, and state supreme court ruled for the biological mother) and as a result the child, now old enough to remember, lost a relationship that had continued because of court ordered weekly visitation. Because that state did not allow adoptions in this situation, the courts had to weigh whether the mother’s conduct caused her to give up her sole custody rights.


                it’s certainly not good for the child how long this was dragged out and the courts did indeed have to weigh some conflicting evidence. With an adoption at least there’s a clear intent that the partner/spouse will be the second parent of the child.

              • Yeah but they could get divorced the day after they adopt and it would not invalidate the adoption right? So what is the point of requiring something that is not really required? I’ve put some thought into it and I think this is the issue; the state has to investigate the backgrounds of the people the child is going to be living with under the same roof so that at the time of the adoption there were no shady characters looming about in the household. So women with live in boyfriends who don’t want to adopt – well the state could be jeopardizing the child’s safety if that guy won’t go through a background check. Whoever is an adult in the house with the adopted kid has to be deemed responsible enough for that otherwise the state would be negligent. I don’t think it boils down logically to much more than covering their ass which is of course to keep the kid safe up to the hand off. A married couple will provide two sources of support to keep the kid off welfare, ass covered, but so could two best friends living in the same house.who were not even gay or lesbian say for instance but were like spinsters. Its not really about committing to eachother it is about committing to the child because that adopted parent/child bond is suppose to outlast any failure in the marriage anyway. Its just that getting two people in the same house willing to make a life long committment to a child frequently involves married people but I don’t think it should have to which is why I don’t see anything inherently wrong with people getting together just to have kids without the deep romance. Ultimately the child has a right to the parent child relationship not to parents that have a romantic relationship. Choose my battles.

              • I think it might be important to note that second-parent adoptions preceded recognition of lesbian and gay relationships. It’s also true that you can do second-parent adoptions in states where you cannot have any form of recognized relationship. I think there are many instances where the parties might be quite happy to legally commit to each other but are unable to and if that’s the case then it makes no sense to say that they also should be unable to commit to their children.

                It’s possible you’ll agree with me this far, since I haven’t really challenged your rationale. But I think I’d challenge that, too. Adoption isn’t about protecting the relatinship between the grown-ups. It’s about protecting the relationship between adult and child. I might have philosophical objections to marriage, say, that lead me not to enter into it. This doesn’t tell you about my moral or personal commitment to my non-marital partner. And it certainly doesn’t tell you about my commitment to the child in question. If a person is willing to make a permanent and thoughtful commitment to being a parent that’s enough for me. I do care (a lot) about stability, but I don’t take marriage (or willingness to marry) as a proxy for that. There are plenty of marriages that do not last, as we all know.

          • There’s a huge appeal to clear lines like the ones you suggest–either do a second-parent adoption and be in or don’t and be out. (This, of course, is assuming that second-parent adoptions are permitted, which isn’t the case everywhere.) The problem is that life isn’t so clean and clear and you have to decide what to do with the messy cases.

            Suppose, for example, two women have and raise a child. They don’t know enough about the law to know that second-parent adoptions are possible/desirable/important, so there is one legal mother and one non-legal mother. They live a happy reality that looks exactly like a family that has completed a second-parent adoption, except they haven’t done so. And then let’s suppose when the child is ten something happens. Perhaps they split up. Perhaps the one legal mother dies. Now what do we do?

            The clean clear application of the law is that they didn’t adopt and so the non-legal mother is no one special–she’s just like a family friend–no legal rights. Her relationship with the child (and the child’s with her) has no protection. Are we content to say that this is just the price of having nice clear lines? Some people surely are. But I’d want to think about how common this situation might be (if it is one in a million then the price is more reasonable overall than if it is one in a thousand) and I’d also like to think about whether the impact of the clear line is in any way skewed.

            What I mean by that last is that it seems to me well-educated and well-heeled people are far more likely to get their second-parent adoptions done. The people who will be paying the price are more likely to be less educated and less wealthy. This matters to me. I can easily imagine people who know a little about adoption but don’t think the expense is worth it given other financial demands. I worry about them.

            The bottom line for me is that while I really do see the appeal of the clear rule I think it comes at too high a cost. So I want a back-up doctrine for those who do not do the second-parent adoption–and that’s de facto parentage. As you say, this too has costs. But these are costs I’d be willing to pay, I think.

            This is, of course, a total judgment call. I think reasonable people can reach different conclusions about all this and I have to say I don’t think we have firm data on some of the underlying questions–how frequently do people not adopt, say, and why they do not adopt when they do not adopt.

    • Working backwards through what you say–I agree that gender assumptions remain in our culture, particularly around child-rearing. Because we have a general philosophical commitment to gender neutrality, some of the legal differences have been altered, but not all. And it’s sometimes hard to tell whether differential legal treatment is the result of cultural assumptions or biology or whether there is even a line to draw there.

      The holding out doctrine is crucial for those people who want to make sure that children have fathers or perhaps those who want to ensure that some male is obliged to pay child support. In WA around 2000 they actually dropped holding out in favor of pure biology (for unmarried couples–married couples still had the presumption.) This was consistent with a draft of the UPA that came out in 2000. But then holding out got put back–both in the UPA and (just last year) in WA. It’s a really important legal device for unmarried couples.

      I don’t think it really is about biology (or they could have just gone with DNA). And if it isn’t about biology, then the differential treatment of men and women (with holding out and de facto parentage being the respective tests) is really just about gender roles. We recognize men as fathers with much less demonstrated commitment than that required for women to be mothers.

    • oh big fat hug! That is right we need to re-evaluate the law. We start by changing the law to say that the state does not have the authority to grant people the title of mother or father the way it can grant them the title of adoptive mother or father. Mother and Father is not a contractual relationship its a genetic one and so all the state is doing is seeing which people pass whatever test they are using to say that “yes this person is probably this other person’s offspring” Sometimes that test is ultra super specific like a DNA test – and sometimes more vague like marriage or a VAP or signed witnesses to a birth. In the end the state can’t be 100 percent sure of anything because people can fake and falsify virtually anything. We have to outline some criteria that seems reasonable for the state to use in order to be relatively sure that a child is the offspring of the people claiming to be parents. There will be times when the state was wrong and it should correct the error rather than let it stand as if the state is the distributor of new truth or something. If its incorrect it does not become true just because people have believed it for so long it would be really messy to record the truth. That is so lame. An error is an error no matter when its caught. Sure relationships may have been built but you don’t have to destroy them completely. If its true that adopted people have two mom’s then let them have two mom’s for the record only 1 of them has the authority to make decisions on the child’s behalf when the child is under age but the other does not.

      • I am not quite understanding this. If the state can grant adoptive parents the title of “father” and “mother” then the state does have authority to hand out those titles. Perhaps what you mean is that it should not hand out those titles EXCEPT in instances of adoption? If it is, I follow with the ever-present “why” question.

        But really I think your comment discloses the fundamental fissure between us. I want to talk about “parent” as a legal category. This is a creation of the state and so only the state can hand out that title and laws are the way the state announces who will be awarded the title when. Sometimes genetic parents get that legal status and sometimes they don’t.

        I think what you are saying is that the existence of the genetic relationship necessarily carries with it certain rights/obligations–not because the state says so but because it just is that way. This is what I’ve said before is a natural law position. And this is where we disagree.

        • I do not know if we can really isolate legal parentage from our personal understanding of what a parent is because our personal understanding is feeding our legal opinions.

          • Surely the social category of parent and the legal category of parent influence each other. Having legal recognition as a parent validates a social status. And having social recognition as a parent can influence a court or a legislature considering definitions of legal parenthood. That, I think, is part of what is going on with both de facto and holding out–those can be seen as social statuses that the law has recognized.

            But having said that, I think it is also important to recognize that these are independent categories. There are legal parents who play no social/psychological role in their children’s lives and there are people who play what we think of as a parental role but have no legal status. Perhaps this should not be–perhaps the law should always recognize social parents as legal parents. That’s somewhere on the spectrum close to my view, I guess, and far from the DNA view. (We’ll agree that not all genetic parents are or wish to be social parents, won’t we?)

            Your comment also makes me think about another point–where the legal definitions come from and/or how they are forged. Laws about parentage are made either by legislatures or by judges. Ideally, the lawmaker tries to think about definitions that are workable and also promote social good–the primary social good probably being the well-being of children. And of course, they must be influenced by their (probably non-legal) ideas about what it really means to be a parent and who counts.

  2. Good grief Julie with your natural law stuff. You really don’t read for understanding when you decide what someone else’s opinion is based on for them. I am not a natural law person. I don’t envoke God or make vague statements. Parent is the term used in our language for the source or origin of another thing. You see it in business and in science its just the term used to describe how various things come into existence. Its a descriptive term. Yes those relationships exist in fact regardless of whether or not they are documented by law. They are not something that can be erased by recording something different. This is not a god thing its just a thing thing. Like if I stole ten bucks out of your wallet and you never noticed it would not mean that i did not do it it just would mean you don’t have any idea of the truth of the matter. Maybe you care maybe you don’t. When I say that a person is a child’s parent that means the child originated from them. It does not necessarily mean that they raised the child and in fact I am not alone in that belief – ask US immigration or ask the state when they are chasing down unmarried unnamed fathers for child support. Regardless I am not invoking natural law I’m using the appropriate commonly understood scientific terminology to describe various relationships within a family sometimes they are legally recognized and others they are not but they do still exist in a scientifically provable way they do not depend on emotion or behavior to be true.

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