The Broader Implications of the Patric Case

There’s  a lot of discussion (some parts of it more relevant than others, some parts of it more temperate than others) about the Jason Patric case–both here and out there in the world.   (I do not really mean to suggest that you should read the 152 comments (a number of which are mine) on my post.  That’s way over the top, as far as I’m concerned, and it’s part of the reason for starting with a new post.)

Anyway, I’ll remind you a bit about the case and what I think of it, but then move on to some broader observations.  Patric provided sperm used to impregnant Schneider.   Patric and Schneider had been a couple and had tried to conceive a child via sex.  But that hadn’t worked–either the couple part or the conception part.   I think it is agreed that by the time they were doing insemination they were not a couple.  (If’ I’m wrong, by all means correct me.)

Schneider gave birth to Gus.   Patric played some role in Gus’ life.  (The details of what role are surely in dispute.)  Patric wanted legal recognition as a parent.  

The bottom line in the new opinion is that Patric may get what he wants–depending on those disputed details of the relationship between Patric and Gus.  If he had a parent-like relationship then he will be recognized as a parent.  If not, then not.   The fact that he is genetically related to Gus is legally irrelevant.   It’s all about conduct.

Now I like that decision just fine–Patric shouldn’t be in a worse position than anyone else because he is genetically related, and that’s where the trial court had essentially put him.   And this is mostly the substance of that last post.  But the ABC story about the case did make me think more broadly.    What’s the take-away more generally?   If the case stands (it could be appealed to the CA Supreme Court, which could do something different), then how might it change how people act.

Well, if you were a single woman in CA (or a lesbian couple for that matter), and you had used a sperm donor, you might not want to let him form a social/psychological relationship with your child.  After all, if some judge at some point thinks the relationship is parental, then you just acquired a co-parent.  But I’m assuming here that you didn’t want a co-parent.   (If you did, then all is well.)

This is a characteristic of the functional parent doctrine I’m so fond of.  It doesn’t have sharp and clear edges.   I think about what I’d say if I were a lawyer giving advice to a client about the nature of the relationship she (or they) should allow:   You can have him visit with the child–just not too much?   And what is too much?

I don’t mean to make it sound worse than it is.  If you see the child four times a year, no one is going to say that’s a parent-like relationship.   But of sperm provider and parent are good friends and see each other a lot more than that?  And if the child’s relationship with sperm provider slowly develops more depth and texture–as will surely happen sometime?  Well, at some point you might cross into the “parent-like” relationship zone.

And if you do then it’s right that the relationship should be recognized and protected.  I’ve said many times that children need that–are entitled to that.  I won’t back away from it now.   But perhaps it will all happen without parent having made a conscious choice?   Maybe the real moral here is you should think about what you are doing because you’ll have to live with it.

All of which is to say I’m not alarmed by any of this–and I don’t think I’d take the tone taken in that ABC story.    But it is worth noting–relationships can develop and evolve over time and there can be legal consequences.  Pay attention?

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50 responses to “The Broader Implications of the Patric Case

  1. I read the ABC article and this was the answer I was looking for:

    (Women who are married or receiving anonymous sperm donations would not be affected by the ruling.)

    I suspected it would not affect an SMC such as myself. I’m not searching for my children’s donor but if the opportunity presented itself, I’d be ok with extremely limited contact in the near future.

    This is a concern for a lot of parents but we can ease our minds.

    • of course the implications of an anonymous man suddenly appearing in yours and your child’s life can be very frightening. but that is a different situation. We’re talking about women planning to get pregnant by someone they know.

  2. How would I advise them? I’d say: you have two choices. You have to decide whether you want a breathing crying doll to play with all your own without share. Or whether you want your kid to have a positive loving relationship with its biological dad and his relatives. If the former, might I suggest you consider getting a puppy?
    This is, of course, when the nice decent dad is available. if no nice decent dad, its a different set of choices.

    • If the choices were as clear cut as this I think it would be easier, actually. You’d make a decision once. But I think it is more complicated.

      Suppose you want to encourage some contact with the sperm provider–because you think that it is best for the child and because at some point you think the child might want to know more, etc. But you don’t want the provider to be a legal parent. I think it would be easier to manage this if you and the provider could enter into a nice written agreement that the provider would not be a legal parent. If instead you have a rule of law that looks a the actual relationship between provider and child then I suppose you just have to keep an eye on it over time, periodically asking 1) is the relationship becoming parent-like (or close enough so that some judge might think it is parent-like) and 2) Do I care if the provider becomes a legal parent–or how much do I care? It’s not that I think this is terrible–it’s just that I think it is more complicated than what you describe.

      • “Suppose you want to encourage some contact with the sperm provider–because you think that it is best for the child and because at some point you think the child might want to know more, etc. But you don’t want the provider to be a legal parent.”

        Actually I see that as very clearcuttedly fitting into scenario one. Why should you be entitled to control everyone and everything? Why should the law support you in that? What do you mean “the child’s best interest?” seems to be confusing the parents best interest with the kids. If you are so certain you can not be good parents together, then be smart, and don’t start.

      • OK but why should anyone be able to contract away parental obligation? I agree that people should have some fully thought out agreement if someone wants to offload their parental responsibilities to another person or to the other parent all by themselves but is that not what we have TPR and adoption for? Or at least just TPR?

        Plenty of single women have sole physical and legal custody of their children without terminating the legal parent child relationship between the child and father. In fact the child will still be owed support and the child will still have all the other benefits of kinship to the father without the father having any legal right to see the kid. That is a reasonable solution to the problem that won’t cost the child the support of their father or the connection to his family. It should not be done in private contracts because whose going to make sure that he was not compensated for his agreement. Also to make sure that if he’s not a danger to the child then there would be no reason to sequester the child from him. There is someone who stands a lot to loose here and its not the parents its the kid.

        • There’s a premise problem again: I don’t think you are contracting away parental obligations. I’d look at the initial situation and ask “Who has parental obligations?” in the first place. The law in CA is that a sperm donor doesn’t have any parental obligations. Thus, nothing is contracted away. Sperm donor starts with no parental obligations and ends with no parental obligations.

          • Then what is your proposed written agreement for acutally? What are the consent forms they sign at the cryo banks and why is it that there is a whole boutique industry for lawyers that say it is super important to have specific agreements outlining parental rights and title and obligations? If biological parents are only parents when they want to be or when you want them to be then there would be no need for all these contracts where the object is clearly parental title and rights? It’s not making sense or rather, you are contradicting yourself and it’s not clear whether you believe what you said about the contract or whether you believe what you said about them not being parents so don’t sweat it.

            • Many questions and a few answers.

              I think it is good for people to think about what they are doing and to make agreements and all that. Writing it down helps people figure out what the really do/do not agree to. And that’s really valuable just in terms of people having clarity in their own minds–even when the agreements cannot be enforced. So for instance, sometimes people make relationship agreements to help settle problems in a relationship–not because a court will enforce them, but because they improve the relationship.

              But there is peril here–if people think they are making an agreement that will have legal meaning and it won’t, that’s a bit of a trap. So if you think you can agree that someone won’t be a parent and that agreement actually has no legal meaning, you are in trouble. That’s a problem that arises when people don’t know what the law actually is. Sadly, it happens a lot. (See that KS case, I guess.)

              In fact, the law varies a lot. In some places an agreement does have force. In others not. There are many variations. In some a donor is not a father unless there is an agreement to the contrary. In others he is a father unless agreement. Again, the way the law works the conditions determine whether he initially acquires parental rights at all.

              • And the object of these agreements is what? What is the objective? To have sole custody and parental control of the other person’s offspring correct? And the other person has to consent to this correct lest there be the unwanted threat of parental involvement by them. If the objective has nothing to do with parental title, obligation, rights or custody of a child then what are you saying is the object so that I might then say whatever it is has been objectified within the terms of the agreement. Really clear this up for me because if I’m going to be admonished for my language I’ll have to be taught what the objective of such an agreement is when the critical thing is said to be making sure the other person has no parental rights. The objective is not a construction of a new house or cleaning of an existing one….what terms are there to be met and by whom?

                • I don’t think I agree with the way you’ve started this. A single woman might choose to be inseminated in CA because she wants to be the sole legal parent of a child. The man who provided the sperm agreed to provide the sperm with the understanding that he would not be a legal parent of the child. But the reason he is not a legal parent isn’t the agreement. He’s not a legal parent because the law defines “legal parent” (the whole IDEA of a legal parent is a construction of law) and the way it is defined leaves him out of the definition.

                  The objective of the woman seeking insemination is to be the sole legal parent of the child and, as Kisrita said in another comment, you could say that’s not something the law should allow/encourage. But the law as currently constituted in CA does.

                  I think issues of commodification generally arise when things of value (which include rights) are passed from one person to another in exchange for something. What we’re focused on here is legal parental rights. These can effectively be transferred (as by adoption) but we seem to have broad agreement that this should not be for money.

                  But the question of who starts with these rights is a different question–and the difference is important. When an infant is born, someone has to be assigned initial rights and responsibilities. Who and why? I think your preference would be that the genetic parents should have the initial assignment–and if you did this then the sperm donor might well be seen to have started with rights and to be selling or transferring them in some problematic way. But just imagine you don’t assign the initial rights that way. Then the sperm donor isn’t giving away any rights because he doesn’t have any. And this is how CA has set up its law.

                • I think I’ve said this before: One reason to write out an agreement is to make sure that the parties really understand what they are doing and really have agreed–that they have shared intention. It’s much easier to be wrong about having reached an agreement if it is all just oral. And some people consider themselves bound by what they agree to because they agreed to it (“I’m as good as my word”) not because the law insists that they are bound.

                  I write out agreements with my kids sometimes for just this reason. Kid will do A, B and C and I will do D and E. Not because I think that’s enforceable, but it is really useful.

                  • I agree with you on written agreements and their importance in society. It creates a sense if accountability in society for people to be responsible for their actions and really consider what they are agreeing to. W/out them there is nothing but chaos.

    • I think it’s very easy for us to judge others whose circumstances were different than our own. It’s easy for me to say Jason should have had an attorney prior to attempting to have a kid with this woman when I am married and wouldn’t have a custody case like this if we were able to have children. It’s easy for you to say people should just “get a puppy” when you were able to have a kid.

      I think the best thing we can do rather than judging is to learn from cases like this and implement laws and protocols to prevent situations like this from reoccurring.

  3. I have questions about what you said with regard to seeing the child 4 times a year not being parent-like. I don’t think that is true necessarily. Even if you want to go on just how the kid thinks of this person all mushy emotion wise the way you do primarily concern yourself with whether the child bonds with them like a parent – I think you have your own preconceived notions about what a parent does and does not do and where they physically are in the world in relation to the kid. There are parents who have jobs that take them away for long stretches at a time. Actors, the military, the list goes on and on. They may only see that parent 3 or 4 times a year. Some rich parents send their kids to bording school and they only see them 3 or 4 times a year. Those people are still legally parents who have authority and whatnot they are still making decisions. And some of them are not in a position of authority and may even have supervised visitation but they are still legally recognized parents with the obligation to support their child.

    This all holds true whether the relationship is biological or adoptive or some other format. There is often one parent who is gone at work more. So I don’t know that I’d say the child can’t be forming a psychological parent/child bond with a person who is not present all the time. Many kids prefer their nanny over their parent – they may wish the babysitter was the parent but they rationally and psychologically know who is and is not a parent. Again I am not basing that on biology but rather who they know of and think of as their parent.

    • This is precisely why the de facto or functional approach to parenthood is slippery and can be scary for people. We do have different ideas about what a parent is. Were you a judge you might find that a child has lots of parents where if I were a judge I’d only see one.

      I think the functional parent line is around where the psychological parent line is and I’m inclined to think that there is somewhat broad agreement on what constitutes a psychological parent. Not everyone will agree all the time, of course. And, as you suggest, psychological parents can be away from their kids from chunks of time. (But it’s hard for me to imagine that you can become a psychological parent if you only ever see the kid four times a year (though surely it will depend how long each of those times is?)) In any event, my point really wasn’t about the precise number of visits a year.

      But the point is, in looks to me like in CA you can allow another person contact with your child as you see fit–until you allow that person to become a psychological parent. Once the person makes that transition, they might actually have their own rights to see the child. And it makes no difference if they’re the person who provided sperm or not.

      • Member the story you posted about the Mom in prison raised by her grandparents? Only sees her like a few times in her life. You said you thought she was a parent.

      • I think 3 or 4 times a year is a completely different thing if we are referring to a bio parent or to a bio stranger.
        A genetic parent has a prima facie to the child just by being the genetic parent. IF he’s absent, the kid will want to know “where’s my father? who’s my father?” It’s an absence the kid will be aware of. how the absence will affect the kid emotionally- highly variable, but its an absence that be known and aware, and likely emotionally negotiated at some point in the kids life. the reasons for the absence will likely be of importance as to how the kid reacts.
        a biological stranger has no such prima facie relationship and therefore must play a parental role over a sustained period of time for anything approaching a parental relationship to be established. 3 or 4 times probably wouldn’t cut it.

        • So 3-4 visits per year for someone with a genetic link might make the person a legal parent where 3-4 visits a year from a person without a genetic link will not make the person a legal parent?

          There’s no reason you couldn’t arrange the law like this. But it seems to me the effect would be to encourage people to keep known gamete provider farther away from the child, which isn’t necessarily a good thing. After all, letting the gamete provider in just a little bit would put you at risk of inadvertently creating another legal parent–and thereby diluting your own parental rights. I’d rather encourage contact between the gamete provider and the child–partly for the reasons you say–and I think that requires some assurance that doing so won’t make the person a legal parent.

          FWIW, I think children–even fairly young children–can accept that there’s a man who provided sperm (one might not use that word) who isn’t their parent. Young children think of parents in pretty concrete ways. Of course as they get older they make more distinctions and understand more, and at that point they will want/need more detailed explanations. Based on my (admittedly very limited) experience, it’s a lot easier to answer the “where is the man” question when you’ve used a sperm donor than it is to answer that question when there’s a man who was actually involved with the mother but just wasn’t interested enough to stay around. But of course, I do know that other people have different experiences.

          • “But it seems to me the effect would be to encourage people to keep known gamete provider farther away from the child, which isn’t necessarily a good thing”

            They couldn’t do that under my theory, because they wouldn’t be allowed to by law. Perhaps they’d have a case if he voluntarily stayed away for years. But they would have no authority to make that decision at the outset.

            my post wasn’t really about creating a detailed legal framework, but just explaining why I think treating the 3-4 visits the same for both biologically related and unrelated person, is out of sync with how society experiences things and therefore should not be made into law.

            • Fair enough. I was working with a different framework–not your theory. Sorry for the confusion. I guess I’m not so sure about how society experiences things, but you might well be right about that.

          • Why not encourage a situation that is equal in every way to everyone else so that the minors in question have a situation that is equal in terms of rights to everyone else. All these accommodations for people who donate gametes result in an imbalance of power and an imbalance of rights.

        • So well put

  4. Julie why do you think people look at children as like an object they can opt to keep all to themselves or give away or stay away for a fee? Why would anyone want to keep a kid from their bio parents and family unless it was dangerous and even if it were dangerous why would anyone want to terminate the child’s kinship and the kinship of their relatives just because they were terminating the bad father’s rights?

    Seems like people have this ideal in their mind of being alone or being with someone they love raising their kid without the other parent around like they made them by themselves or made them with that partner they love so much. Why can’t they just all be made to come together and cooperate – especially the two that made the kid with the third being able to opt in or out at their own discretion.

    • As is often the case, I disagree with your premise and that is mostly what I want to talk about; I think you are too quick to invoke objectification and I think that raises all sorts of hackles. No one thinks objectifying children is a good idea. I don’t think what’s at issue here is about treating at a child as an object.

      If I’m a parent then I decide how my young child spends her time, who she sees and what she does. she doesn’t get to decide–not because she’s an object but because she is a child and cannot be relied on to make those decisions for herself. I judge what is the best bed time, what is the best bed time routine and so on. The whole point is that parents make decisions for children–it’s their obligation and their right. (The alternatives are to have the child make her own decision (not appealing to me with a young child) or to have the state do it (again, not appealing to me.))

      Part of what parents decide is who a child sees. Most parents think it is good for kids to see grandparents and aunts and uncles, etc. But not all parents do and in general we defer to the parents. We do that because we think 1) the parents know the child better than anyone else and 2) the parents have the child’s best interest at heart.

      If I were adopting a child I would think about how I was going to talk to the child about adoption, how I was going to introduce the child to my friends and family, and what sort of relationship I thought should exist between the original parents and the child. I suppose all those decisions are tentative–because you take your lead from the child. But none of this is treating the child as an object. It is treating the child as a person you are responsible for. It is owning up to your obligation to make decisions.

      And if I were contemplating raising a child as a single woman, I think I’d consider a whole range of questions–including where would I get the sperm? What relationship would I want the child to have with the man who provided the sperm and so on. Contemplating decisions like this isn’t treating the child as an object. It’s planning to be a responsible parent.

      Now I do hope that the parent will be upfront and honest with the child, whether adopted or donor conceived. And I hope that the parent will be responsive to the child’s interests and desires. And I’m quite supportive of education and support to help people with those issues. (I’m not at all convinced that all children will want to know about/interact with their genetic relatives–some will and some won’t.) Leaping in to call things “objectification” and label people as “selfish” is unlikely to make them deal with these issues any better.

      • Well if they draft a contract regarding parental title and obligations of a child as you suggest then what’s the objject of the contract? Is it the parental rights/title/custody or is the object of the contract the child? It could be that parental obligations and rights are objectified and sold or gifted. In fact parental rights and title are more likely the object of the contract since its not possible to sell a person just sort of sell your position of authority I suppose.

        Doesn’t every agreement have to have three elements, object time and consideration in order to be considered an agreement and it has to be legal to be enforceable? So am I wrong to say that a thing that is the object of a contract has been objectified? What is the objective of the arrangement?

        The object of a gamete donation agreement is not the gamete because that would leave the recipient in a position where they’d have the gamete but not be allowed to do anything with it nor would they be able to keep and raise the resulting child. They need an agreement that spells out the actual objective clearly – as you suggested which clearly defines that the intent of the agreement is for someone to have keep and raise the other one’s offspring and so on and so forth.

        The object of a contract is objectified. I think it is unfair of you to take issue with my stating that. My feeling about putting parental rights or people as objects of contracts is that it makes my heart break and is why I’m so passionate about fixing the mistreatment of people who I help search.

      • Also you switched carts here – sure if you are a parent, you get to decide who the kid sees. No doubt that’s true and I actually agree with that law. But you were talking about how a person gets to be a parent and if a private contractual agreement is how they get to be a parent then – there is objectification of parental title and custody and obligation and the like and some might even say the child. So the issue is not in treating kids like objects if you are a legal parent, its in treating them like objects if you want to be a parent or conversely do not want to be a parent. That is when the objectification occurs. Treating the obligation as something salable gift able buy able or earn able inherently objectifies the obligation, the title and the child because it becomes a buyers market or a sellers market.

        • Sorry if you think I switched arguments. Maybe I got threads tangled.

          Remember, the Patric case isn’t about parenthood by contract. If he provided sperm for insemination then he never acquires parental rights based on the sperm. Any rights he can claim he will claim based on his subsequent relationship with the child. I don’t see any objectification in this.

          • If there was a contract in this situation it would be much easier to say what each person’s intentions were. Right now all you have to go on is “he says she says” regarding intention.

            • Certainly a clear written document that expressed some intent and was signed by both parties would be great evidence and could really reduce uncertainty. That’s one of the values of written agreements–you know what they say. The law question is what they are worth–but with some facts settled there is less to worry about.

          • Then circle back to where you said you think that written agreements are a good idea in known sperm donor arrangements to say that he has no parental rights or obligations which would be to say that he’d have to agree to give them up waive them sell them whatever which means they were his to take or leave (sadly). Opting not to take them is the same as giving them up. If he had the choice and could have gone either way on it then he had them to begin with which is different from a random stranger off the street.

            • I think written agreements can be good because, if done well, they make it clear what the parties have agreed to. They can eliminate a lot of disputes about who said what. That is not the same as saying they should always be given effect.

              I think your logic at the end of the comment may be flawed. No one starts with legal right rights to be parent to a child. The law makes an original assignment. Lots of ways that could be done, but in CA if a man provides sperm for insemination then he is not assigned any rights. Thus there are no parental rights for him to transfer, whether by sale or by gift.

              If the law assigned him rights under these facts and then, in exchange for money, he assigned those rights to another person, then I think you’d have something akin to the sale of a child.

              • Couldn’t you say though that in agreeing to provide the sperm to be used that wat, he is waiving or giving up rights?

                • Yes, you could reason like this, but I don’t want to. I prefer saying that you have to do more than just provide genetic material to acquire parental rights to begin with. that’s my preference for a range of reasons which I won’t go through right now, though they are laced through a lot of the blog. But it is possible to say that a man providing sperm does acquire parental rights and then to reason that he waives those rights when he donates sperm. (one reason I don’t really like this approach is that you have to think about how easy/hard it should be to waive constitutional rights.)

          • If ever there is a private written agreement about who gets or does not get parental rights then the object of the contract is the thing objectified – parental title is the objective or lack of it is the objective.

      • “If I’m a parent then I decide how my young child spends her time, who she sees and what she does”

        but thats not wholly correct. you decide those things yes, but in conjuction with her other parent.

        why should the law support someone, male or female, who decides that they are not interested in sharing decision making like everyone else is supposed to do?

        • You are quite right about sharing with the other legal parent–and that’s exactly why the question whether Patric is a legal parent matters so much. IF he is a legal parent THEN he has a right to decide with the other legal parent. She has no right to cut him out. But if he is NOT a legal parent, then he has no right to participate in the child’s life.

          The courts here are working on that first question–is he a legal parent. Once they answer that the rest will follow as you suggest.

          • but the question whether should not fall on whether schreiber wants him to be a legal parent or not.
            in other words, enabling one person to go at it alone when a perfectly fit other biological parent is available, is not a worthy goal for the law to support.

            • eek my wording is so cumbersome i can’t find the right way to express it. Let me try again: laws are often enacted to as to enable some socially beneficial thing. Some people see single women wanting to give birth to a child and not have to collaborate with another parent as a socially beneficial thing. Schreibers lawyers are quoted to that effect.
              I do not see that as a socially beneficial goal.

              • Right. People can differ about whether the law should facilitate creation of a single legal parent. I completely agree with you that this is a policy question–is it a good thing that we should facilitate or is it not a good thing? The way the law in CA is currently set up it does facilitate that and I think you can question the underlying assumption–as you have done here.

                It’s important to me–just for clarity of discussion–to emphasize that the question about what goals the law should pursue is really the more important question. If you answer that then the next challenge is figuring out how to get to your goal, but that’s more mechanical, I think.

  5. Who has the right or rather obligation to establish that functional parent child relationship to begin with? Who has the right to thwart their efforts or compel them and does the child loose out when one parent does not compel the other to participate? Does the child loose out when one parent thwarts the other’s efforts to participate? How does one get off the ground in establishing a functional parent child relationship with a child if the parent who has custody of them wishes to prevent it?

    • The question of who gets to start as functional/de facto parent is, I think, the most difficult one for me. I’ve talked about this before elsewhere. It seems to me that the woman who gives birth is one person who surely gets to start with de facto status. The question is whether there is anyone else. I’m inclined to look for other people who have demonstrated their commitment to the project of raising a child by taking consistent and concrete action.

  6. Three cheers for your clear thinking Julie. I could not agree more.

  7. Hi all- I’m from little ol’ England.
    In the uk, all donors are non- anonymous.
    The difficulty with this case is that Patric and Schreiber had been in a relationship prior to and after Gus’s birth. That muddies the waters.
    Most sperm donors don’t expect to have parental contact, but this implies that they should have a parental role.
    It’s a difficult one- the s’posedly media shy Patric is really going for it here!
    Will the adult Gus really be that happy to have such warring ‘parents’?

    • is that correct? i thought sperm donors are anonymous until the kid is 18

      • It’s semantics Ki. If the donor’s information is available at age 18 they really aren’t anonymous the way I look at it. But I can say how someone else would interpret it the other way.

        • I’m not sure it is only semantics, but there really aren’t enough words to cover the range of possibilities here. For many “anonymous” would mean unknown and unknowable. A donor who consents to have his identity made available at a particular time isn’t, in that sense anonymous. But neither is he what people call a “known donor”–which is generally someone whose identity is known throughout.

          Even within that framework there are variations. I’m sure there are instances where people use a person who is identified but don’t share the identity information with the child until some point in the child’s life (which I’m sure varies). Not really anonymous and not entirely known, either.

          Perhaps what this points up is that there are many variations on the theme, just as there are many families. That said, I think the difference between a sperm provider who can become a part of the child’s life in time and a sperm provider who is (at least as planned) will never have a role is an important difference.

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