I know I’ve been silent for quite a while. Bit of a break. But there’s a new opinion that has brought me back to the keyboard. It’s from the Supreme Court of New Hampshire and is yet one more case of the breakup of a lesbian family. (Sadly you’ll find a number of those on the blog. Because the legal status of lesbian co-parents can be unclear there is often the opportunity for litigation if things get messy.)
For the purposes of its decision the court took the facts as stated by the petitioner, Susan B. I will do the same.
Susan and Melissa D met in 1997. They held a commitment ceremony (no legal marriage that time) in 1998. They wanted to have a family and bought a house together. Melissa gave birth to Madeline in 2002. She was conceived using sperm from an anonymous donor who shared Susan’s Irish heritage.
Many details seem to confirm Susan’s status as a parent (and here I mean social status):
Susan and Melissa decided to give Madelyn Susan’s middle and last names.
Susan and Melissa were both named as Madelyn’s parents in the birth announcements sent to friends and family and printed in the local newspaper, as well as in a “dedication ceremony” held in the Unitarian Universalist Church when Madelyn was a year old. Susan was listed as Madelyn’s parent in her preschool documents and in her medical records. Susan was involved in the daily care of Madelyn, and Susan and Melissa jointly made all decisions involved in raising Madelyn, including decisions regarding health care, education, and religion.
(page 2). Apparently Susan could not adopt so she became a guardian to Madeline.
All went well until 2008 when Madelyn was six. At that point the two women split up and Melissa and Madelyn moved in with Eugene who Melissa eventually married. For five more years Susan maintained her relationship with Madelyn much as a separated parent would. She paid child support. She was actively involved in Madelyn’s life.
In February, 2013 (by which time Madelyn must have been about 11) Melissa did what she could to terminate Susan’s role in Madelyn’s life. She stopped cashing checks, ended visitation, and cut lines of communication with the child. (Melissa said this reflected Madelyn’s wishes, which could of course be true. But if Susan had been a legal parent, Melissa’s assertion about Madelyn’s wishes would never have justified her unilateral actions.)
Then Melissa sought to terminate the guardianship, apparently so that Eugene could adopt Madelyn. Susan objected, the court rejected her objection, and this appeal followed.
There are at least two arguments–closely related–that might seem to apply in a case like this. First, Susan might claim to be a de facto parent. In a number of states (Washington is one) a person who is in fact like a parent for long enough becomes a legal parent. (This is an imprecise way of putting things but it captures the general idea. Check the tag for “de facto parent” to see more on the blog.)
There’s a second way, though, that is actually a simpler path. Nearly all states have a “holding out” provision. These provide that when a man (it is traditionally a gendered standard) accepts a child into his home and presents the child to the world as his child, then he is a parent. New Hampshire has just such a provision:
I. Notwithstanding any other provision of law, a man is presumed to be the father of a child if:
. . .
(d) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his child.
The problem, of course, is that Susa is not a man, nor can she be presumed to be a father. This is the main focus of the Court’s analysis. It concludes that consistent with a preference for gender neutral law, the provision quoted above should apply to Susan, too.
The point of the provision is to secure the child’s relationships. This provision is often the reason why a child has two legal parents as opposed to only one. These facts depict exactly the sort of scenario where this makes sense. Susan was, in every sense but genetics and law, a parent of Madelyn for many years. To permit Melissa to destroy that relationship because it suits her to do so is to damage both Susan and Madelyn. Of course, if Susan has in some way become manifestly unfit, her rights can be terminated. But she cannot simply be discarded because she has served out her usefulness. Thus, the presumption protects her as it would protect a man who performed in the same way.
As the court notes, the presumption is based on behavior, not biology. That’s really the whole point of holding out–it’s about how people act. I’m happy to say I think the court got this one right, in a very nicely written opinion.