New NH Holding Out Opinion

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.

Parenthood and Its Modifiers, II: Natural and Adoptive Parents

I wanted to pick up on a terminology thread I started a little while back.   You might want to go read it or skim it or remind yourself of it.   The basic idea is that the term “parent” is often accompanied by a variety of modifiers and understanding the different modifiers and how they relate to each other is important to the conversation here.

Remember the core purpose of this blog:   I’m concerned about how we define legal parent.   I take it as a given that the category of “legal parent” exists.   A legal parent is the person who has all sorts of rights and obligations vis-a-vis the child.   So, for instance, who decides whether a child is raised with or without religious training?   The legal parent or parents.   Who decides on what sorts of non-emergency medical care will be provided?   The legal parent or parents.   Who decides where the child will live and go to school?  The legal parent or parents.   It’s possible to imagine a world without legal parents–perhaps one where some state bureaucracy dictates these choices for the child–but that’s not my task here.

So then the question is who gets recognized as a legal parent? 

Why Worry About Step-Parent As De Facto Parent?

I’m continuing on a question I got to last time, though the real genesis of this line of discussion is further back.   I won’t retrace all the steps as you can just go back and read them over.   I’m thinking about a hypothetical (which I quoted in full) that was posed by the Justice Bosson in a concurring opinion in Chatterjee v King.

Put briefly, the question is why should we worry that a step-parent might get to claim rights as a de facto parent?   (You could ask this same question about a foster parent.  The discussion would perhaps be different so I will not include it here.)   In the terms of the hypo from the concurrence, why should we worry that Man might claim rights to the child over Mother’s objections?

Step-Parents As De Facto Parents, II

I started this thread yesterday and though I know there are comments I haven’t looked at yet, I wanted to get back to it.   I have a feeling I haven’t explained my thinking terribly clearly (partly because it isn’t very clear and partly just because I didn’t get the writing right).    So it seems like I should try again.

First, a couple of posts back, I tried to establish that there are two categories of parents–original parents (I’d call them, I guess) and step-parents.  To my mind, step-parents are people who come along later–who aren’t there from the get-go.  Now I think I referred to some of those original parents as second parents, which probably wasn’t a great choice, but I’ll stay with that.  Second parents are perhaps most often lesbian co-mothers, but they could be male, partners, too.  Perhaps even husbands of women who give birth are second-parents.

The key point to carry from that post is just that I wanted to describe two categories of people who have parent-like relationships with children–original parents and step-parents.  

Can a Step-Parent Be A Parent By Holding Out? The NM Concurrance Considered

As I wrote a couple of posts back, the New Mexico Supreme Court recently issued an important new decision in a case called Chatterjee v. King.   A lesbian couple wanted to raise a child and decided to adopt a child from from Russia.   Only one of them legally adopted the child and, when the women split up, the legal status of the second woman was at issue.  (Russia would not have permitted the women to adopt jointly.)  The NM Supreme Court recognized the second woman as a parent as well using a doctrine called “holding out.”  For more detailed discussion, do go read that earlier post.

There’s an interesting concurrence as well.   The author, Justice Bosson, is concerned about the application of the holding out doctrine to a range of circumstances.    In order to explore Bosson’s points I felt I needed to discuss what the difference between Chatterjee’s position and someone we might call a step-parent, which was the point of my most recent post.

Now to the concurrence.   Justice Bosson has a hypothetical that warrants attention, so I’ll just quote it, even though it is long:

Suppose a hypothetical Mother has two children with men who are no longer involved in their lives for whatever reason, including death.

NM Lesbian Mother Victory: Women Can Hold Out, Too

There’s a new case from the New Mexico Supreme Court that gives me an opportunity to revisit a topic I’ve written quite a bit about before, though it has  been a while since I’ve written about an intra-lesbian dispute over parentage.  This is one of those cases that fall into a regrettably common pattern, though as is always the case, there are a few specific twists.   I’m happy to say that this is also a case where I think the court ultimately got it right.

Bani Chatterjee and Taya King were a lesbian couple.   During their relationship King adopted a child from Russia.   Though legally King alone adopted the child, the adoption was in reality a joint project of the women who wanted to raise a child together.   (I’m sure the women would not have been allowed to adopt jointly in Russia, so it pretty much had to be one or the other of them.  I do not know whether NM law permits second-parent adoption and, given the reasoning of the court, it doesn’t matter.)

King and Chatterjee lived together and co-parented for a number of years before their relationship deteriorated.   At that point, King moved to Colorado and tried to prevent Chatterjee from having any contact with the child.  

Keeping Your Eye on The Right Relationship: Another CA Lesbian Claims Holding Out Parentage

Here’s a case from CA that follows a path similar to one taken in a case  I discussed last week.   As in that earlier case, a female second parent claims parental status by invoked the gender neutral version of the holding out doctrine.   The court’s discussion of that argument in this case highlights some critical points.

First the facts:   In 2002 JV was in a relationship with Brian P.  She became pregnant.   (I realize we’re all likely to assume that Brian P is genetically related to the child, but you’ll find, as you read on, that this has never been established.   There’s a bunch of interesting side issues raised by his role which we can discuss if anyone cares to.)

The relationship between Brian P and JV fell apart during her pregnancy and he played no role in preparations for the birth of a child.  

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:  

Lesbian Motherhood And The Lingering Impact of Don’t Ask, Don’t Tell

I’m still playing catch-up, writing about cases from the end of the year.   Here’s an interesting case out of CA.   The full opinion is here.  I’m sorry to say that it is yet another in the line of “lesbians behaving badly” cases–by which I mean cases where one lesbian co-mother attempts to use the law to deny and destroy her lesbian co-mother’s relationship with the children.   But I’m happy to report that in this case, the attempt was unsuccessful.

This is also a case that shows the distorting influence of “Don’t Ask, Don’t Tell” in contexts where you might not expect to find it.   And though it has been a year since the repeal of the policy was announced, you can also see that the lingering effect of “Don’t Ask, Don’t Tell” could last for some time. 

Charisma/Kristina and Setting A Low Bar

I’ve been pondering a recent CA decision (not really that recent, but never mind) in some recent posts.   Here’s one way of thinking about the case. 

There’s some well-established law you will find in many (but not all) states.   When we are looking to find a father for a child who will otherwise be fatherless,  we don’t set the bar for what qualifies a man as a legal parent terribly high.   It doesn’t take that much to hold a child out as one’s one–you must receive the child into your home and present her/him as your own child.   It has nothing to do with biology or genetic relationship.  

Charisma, as well as other women and on occasion the state of California, have argued that there is no justification for treating women differently from men in this setting.   That’s a simple and strong argument.   I certainly cannot think of a basis on which you can provide this legal avenue only for men.