Tag Archives: natural parent

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.   Continue reading

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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?  Continue reading

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.   Continue reading

Back to Nature, 2

What better way to bring summer to a close than with a sequel?   Works for Hollywood.   A long time ago I wrote the first post with this title and I’ve written about nature at  other times, too.   But the idea of a natural order of things plays such a strong role in this area that I think it is worth revisiting.

Here’s what I think is at work:   It seems to me that for many people there is an assumption that there is a natural order to things that sets a default.   The default requires no justification–it just is that way.   However, any change from the default must be  justified.   In particular, what you see here a lot is the argument  that the people who contribute DNA to the creation of a child are “naturally” the child’s parent.   Thus, there’s no need to explain why this is a good system to adopt.   However, any change from that–recognizing people who do not have DNA links–must be justified.  Continue reading

Parentage, Surrogacy, and the Seamless Fabric of Law

As I mentioned in yesterday’s post, I was heading off to a meeting where we talked about surrogacy.   This meeting and then the comments on yesterday’s post (which you might wish to go and read) have put me in the mood to continue musing about the topic at least a bit longer.   Some of this really is drawn from responses to comments, but I figured I’d try to draw it all together a bit more neatly here. 

First, it is worth remembering that the law governing parentage has been evolving over a very long time.    But to be clear, it isn’t law in the same sense that the laws of nature are law.   Law about parentage is made by people and it has varied to suit historical and cultural needs.  

I think this point often escapes notice and it has been controversial when I’ve raised it before.   It’s easy to think of parentage is a sort of natural law–a man and a woman engage in intercourse, the woman becomes pregnant and in due time a child is born and the man and the woman are the parents.    Continue reading

Changing Your Mind About Surrogacy–What’s a Court To Do?

I’m putting the discussion of issues around conception with third-party gametes aside for the moment.  I’ll come back to it shortly, as I do have several additional things to say, but I wanted to return to a discussion of surrogacy.  You can look at the tags to find earlier posts on the topic–there are a lot.     

I should start by saying what I mean by surrogacy.  I mean a circumstance where a woman agrees to become pregnant and then give the baby to another person or a couple once it is born.   There are several variations on this practice, but I won’t review those right now.   

The hardest cases in surrogacy are the cases where someone changes their mind in mid-stream.  If everyone is on the same page at the beginning and everyone follows through as agreed it all runs smoothly.   Here’s a case that illustrates the sorts of problems that arise when people do change their minds.   It’s from Ohio.    Continue reading

Natural Parent v. Third Party–In North Dakota, You Win Some, You Lose Some

There’s a recent case from North Dakota that illustrates some important points about the power of recognition as a legal parent.   At the same time, it also represents a less-common approach to the rights of third-parties.   Please note that it does not directly raise the issues about defining natural parents that I’ve been talking about, so I hope I don’t confuse things by discussing it now.   

Some time in 2001 or 2002 Robin McAllister conceived a child with Michael Tharaldson.  While she was pregnant she moved out of Tharaldson’s home.  She met Mark McAllister and moved in with him.   The child, EM, was born in 2002.   Robin and Mark raised him together.  They married in 2004 and had two children together before Robin left Mark in 2008.   When she left she took EM with her but left the two younger children behind.   Robin and EM moved in with another man, Jason Prosje.  

Robin and Mark McAllister got divorced.   They agreed on most things.  Mark got primary custody of the two younger children.   The one outstanding issue was the custody/visitation regarding EM.   Mark wanted decision-making authority and primary residential responsiblity for EM.   Robin wanted him to have no court-ordained role in the child’s life.  Continue reading