There is a recent case out of Ohio that has got me thinking, even though it is unfortunately familiar in terms of its facts. Once again, sad to say, it concerns lesbian mothers, one of whom is behaving rather badly in my view.
Julie Ann Smith and Julie Rose Rowell were a lesbian couple. Smith gave birth to a daughter in 2003 while the women lived together. The daughter was conceived via AI and it appears to me that an unknown sperm provider was used.
The relationship ended in 2008, which means the child was around five. Smith refused Rowell any contact with the child and Rowell sued to gain shared custody. After hearing 16 days of testimony, a magistrate has now ruled that Smith must indeed share custody with Rowell.
I won’t go into the details of the opinion or of Ohio law. But here are some key points. First, Rowell didn’t have any clearly established parental rights at the beginning of the case. If she had, her entitlement to some time with the child would be quite clear. So if, for instance, she had been able to complete a second-parent adoption, this case would have simply looked like an ordinary custody case.
Second, the case seems to have turned on how you characterize Rowell’s relationship with the child. The magistrate found that the relationship between Rowell and the child was essentially (in function) a parent/child relationship. The magistrate rejected Smith’s contention that Rowell was a roommate/girlfriend who also served as a babysitter. The paper, quoting the opinion, puts it this way:
“Knisely ruled that the evidence and exhibits “support (Rowell’s) testimony that she and Smith were life partners with an agreement to raise Maddie together. They do not support Smith’s assertions that Rowell was just a girlfriend/roommate and sometime baby-sitter.” “
Smith contended that she was a single parent and portrayed the ruling here as a danger to single parents, but the court found facts that were inconsistent with this:
The magistrate found that Rowell was present for the successful insemination procedure and all obstetrics visits, helped create the nursery, attended Lamaze classes and was Smith’s birthing coach. She was present throughout the baby’s delivery and cut the umbilical cord.
“Neither assumed the role of primary caretaker until Smith unilaterally cut Rowell out of Maddie’s life when their relationship failed,” Knisely wrote. “Until that point … she was never a single-parent child but part of a committed familial relationship, albeit a family of all females.”
Now I generally do support the rights of single parents. I also understand that single parents often do rely on friends for support and occasional childcare. (Indeed, even non-single parents do this.) Just because a single parent does this it doesn’t mean she (or he) gives up his sole parental rights or that she (or he) invites that friend to be a parent.
Thus, it isn’t on the level of theory that I disagree with Smith’s position. The question here is one of fact. What was Rowell’s relationship to the child?
This is a very important question for me generally. Or perhaps I should say that this sort of question is very important to me. Remember that I support a functional definition of parenthood. That means of Rowell has acted like a parent for a substantial period of time (and the judge here concluded that she did) then I think she should be recognized as a parent.
And this means that perhaps it does come down to figuring out whether she was a babysitter (no rights) or a coparent (rights). And while I won’t pretend that I can offer an opinion on this question from this distance with no personal knowledge of the facts, it doesn’t strike me that this is question beyond the capability of a good trial judge. Indeed, I think most of us can tell the difference between babysitters and parents pretty quickly and surely. And I will even hazard a statement that we’d mostly all come to the same conclusions about who was in which category. (This last might be going out on a little bit of a limb, but I’ll say it anyway.)
Now that isn’t to say it is easy to articulate and that does make me slightly uneasy. Maybe I need to work on that some more (a little project for the weekend.) But in the meantime, you can ask yourself–can you tell the difference between a babysitter and a parent? How?