A Brief Review: The Law and Lesbian Mothers

Once upon a time the problems faced by lesbian mothers in the US were centered around combining those two roles–being a lesbian and being a mother.   Women who were unquestionably legal mothers lost custody of their children because they were lesbians.

But times have, for the most part, changed.   While no doubt some women still lose custody battles because they are lesbians, that is far less common and, when it does occur, courts typically invoke reasoning that has nothing to do with sexuality.   This suggests that judges realize that whatever might drive their decisions in fact it is no longer acceptable to simply rely on the mother’s status as a lesbian.

Legal issues for lesbian mothers now focus on women raising children together in two-parent lesbian families.   And this article from the New York Times does a nice job of surveying the issues lesbians raising children together may confront.     There’s nothing particularly new here–I think most of the issues have been discussed on the blog before–but it is a good summary.

There are two key points, I think, each with elaboration in the article.   First, in many places families that are two-parent families in fact are only recognized as one-parent families in law.   What I mean is that only one of the two parents has the legal status as a parent.    As the article notes, there are many consequences of this.   In some states–like Ohio–it isn’t possible to create a two-legal parent lesbian family.   For women who are raising their families in those states, life can be precarious, legally complicated, and expensive.

Second, even lesbian families living in more accommodating states (say Massachusetts) have extra hoops for lesbian families to jump through.  For instance, MA law automatically recognizes a woman as a legal parent to a child her wife gives birth to.    (For those paying attention in an earlier discussion here, that automatic recognition is what makes the second woman as well as the first a natural parent.)

But legal recognition as a natural parent may not travel well.   Should the two women go to Virginia, say, the woman claiming legal status via the MA marriage may find that she is no longer recognized as a legal parent.   Virginia will not recognize the marriage and may refuse to recognize parental status that flows from the marriage.   So on the off-chance that the women may someday travel to or through Virginia (or a number of other states for that matter) the wife may need to formally adopt her own child.   (A completed adoption will be recognized by all states.)      Given the reality of modern travel, the hostility of some states to two-parent lesbian families effectively reaches women in all other states.