http://www.latimes.com/news/local/la-me-custody23aug23,0,3644739.story?track=tottext
THE STATE
Court Affirms Gay Couples' Parental Status
California's justices rule that both members in same-sex relationships have
full rights and responsibilities in child-custody issues.
By Henry Weinstein
and Lee Romney
LA Times Staff Writers
August 23, 2005
SAN
FRANCISCO — The California Supreme Court on Monday became the first in the
nation to grant full parenting rights and obligations to gays and lesbians who
have children.
In three closely watched cases, the justices set rules in
an area where changes in family structure and advances in technology have
outpaced the evolution of legal principles. In each case, they delivered a
ruling that guaranteed that children born to gay couples have two legally
recognized parents.
Each of the cases involved a lesbian couple who had
children and later split up.
In one case, the court ruled unanimously
that a lesbian mother cannot avoid paying child support for her partner's
biological children who were conceived when the pair lived together.
That
ruling puts lesbian couples on a par with unmarried couples whose relationships
end.
In a second case, the justices, on a 4-2 vote, held that a Marin
County woman who provided eggs to a partner, who was then artificially
inseminated, is legally the children's second mother.
That ruling came
despite the fact that before the children were conceived, the woman who donated
the eggs had signed an agreement with her partner waiving parental
rights.
The third case, involving a Los Angeles-area couple, was decided
largely on procedural grounds. It upheld the parental rights of a woman whose
partner became pregnant through artificial insemination while the two lived
together.
Other state courts have granted partial rights in the form of
custody or visitation without acknowledging full parental status, said Courtney
Joslin, senior staff attorney for the National Center for Lesbian Rights, which
represented the mother seeking child support.
"The court broke ground,"
Joslin said, adding that the ruling will affect "thousands and thousands" of
same-sex couples and their children.
The rulings came as the battle over
the rights and obligations of gay families is heating up statewide.
A
case challenging the constitutionality of California's law limiting marriage to
"a man and a woman" is moving through the courts and is expected to reach the
justices next year. And a bill that would allow same-sex marriage has been
revived in the Legislature.
On the other side of the debate, opponents of
gay marriage are pushing to place several constitutional amendments on the June
2006 ballot that would ban same-sex marriage and roll back domestic partner
benefits. Those existing domestic partnership rights already cover many gay
couples with children. For children born after Jan. 1 of this year, state law
says that children born to registered domestic partners should be treated the
same as children born to married couples.
But tens of thousands of gay
couples — no one knows precisely how many — had children before the domestic
partnership law went into effect or have not registered as domestic partners.
For them, the rules have been confusing and often inconsistent.
Monday's
rulings sought to bring order to the legal chaos. The rulings drew praise from
advocates for gay rights and were sharply criticized by groups opposed to
same-sex unions.
"We believe these rulings, taken together, are a victory
for kids," said Tom Dresslar, a spokesman for Atty. Gen. Bill Lockyer, whose
office filed a brief in the child support case that was cited by the court. "The
rulings recognize that the children of same-sex couples have the same interest
in maintaining to the maximum extent possible ties to the people who raised them
and love them."
By contrast, Randy Thomasson, president of Campaign for
Children and Families, which opposes gay marriage, said the court's position
"goes against nature."
"Despite junk science and frustrating rulings like
this, children still need a mother and a father," Thomasson said. "A child does
not have two mommies or two daddies; a child comes into this world because she
has a mother who gave her egg and a father who gave his sperm."
The
court's stand "ignores the self-evident truth that God designed a man and a
woman to fit together and participate in the miracle of procreation," he
said.
The court's first case involved two women known in the legal
filings as Elisa B. and Emily B., who lived together in El Dorado County. The
two women originally agreed that each should become pregnant by artificial
insemination from the same semen donor.
Elisa got pregnant first and in
1997 delivered a son, Chance, who was healthy. A few months later, Emily had
twins; one had Down syndrome. Both women breast-fed all three babies. They gave
the children the same hyphenated surname.
The two agreed that Emily would
be the "stay at home mother" for all three children while Elisa worked. Elisa
provided medical coverage and listed all three as dependents on her income tax
forms.
After six years, the relationship came apart. Elisa left with
Chance in 1999 and moved to San Francisco. She helped Emily financially until
May 2001, when contact and money were cut off, according to court records. Emily
applied to El Dorado County for welfare benefits, and the county tried to make
Elisa pay child support.
Lower courts divided on the case. A trial court
ruled that Elisa was a "de facto legal parent" and had to pay, but a Court of
Appeal said no. According to the appellate court, state law allowed only one
person to be a child's mother. Elisa was legally the mother of the child she
bore, but not of the children her partner gave birth to, the appellate court
ruled.
The high court disagreed. "We perceive no reason why both parents
of a child cannot be women," Justice Carlos Moreno wrote for the unanimous
court.
"It is undisputed that Elisa actively consented to, and
participated in, the artificial insemination of her partner with the
understanding that the resulting child or children would be raised by Emily and
her as co-parents, and they did act as co-parents for a substantial period of
time. Elisa received the twins into her home and held them out to the world as
her natural children," Moreno wrote.
"Having helped cause the children to
be born and having raised them as her own, Elisa should not be permitted to
later abandon the twins simply because her relationship with Emily ended,"
Moreno wrote.
Three years ago, the court ruled that men who establish
themselves as parents are entitled to become legal fathers even if they did not
help conceive the child. "These legal principles apply with equal force in this
case," Justice Joyce Kennard wrote in a concurring opinion. "What is sauce for
the gander is sauce for the goose."
Children cannot choose their parents
and should not be deprived of the benefits of having two people to provide
financial and emotional support just because their parents are lesbians, the
justices said.
"I think these decisions protect children and their
relationships with people who are their family members," said Alice Bussiere, an
attorney with the Youth Law Center in San Francisco who filed a
friend-of-the-court brief.
"The children had a really big stake in these
cases. If they had gone the other way, they would lose a relationship with
someone they considered a parent and in one case financial support as
well."
At a press conference, Emily B. said the ruling "means that I'll
be able to get off welfare and food stamps" and possibly Medi-Cal. "I just
really want to thank the justices for seeing to it that these children have two
equal parents."
Until now "there was a class of children that were just
not seen and had no legal rights," she said.
Kaia, one of her 7-year-old
twins, stood at her mother's side, grinning broadly, while Ry ran through the
hallways. Emily B. said her ex-partner's position was "unfathomable to mec. I
was abandoned with two children and went from a six-figure income to living on
$15,000 a year."
Mathew Staver, the attorney for Florida-based Liberty
Counsel, a group opposed to same-sex unions, said his group had opposed Emily B.
in court to defend what he said was an important principle.
"Our position
is the biological parent is the only parent, period, unless there's an adoption,
and in this case their wasn't," he said. "I think you have to put the parental
rights of the biological parent or adoptive parent first."
"On the
surface, it might have appeal that you'd want to have someone who has means
support someone who doesn't," he added. "But to give parental rights and
indicate that a child has two moms I think undermines the rights of all
biological parents."
Though the court was unanimous in the Emily B. case,
the justices were more sharply divided on the Marin County case, with the
court's four men siding against its two female justices.
That case
involved a lesbian couple who decided to have a child together. One of the
women, known in the case as K.M., donated her eggs to her partner, E.G., who was
artificially inseminated. K.M. signed a document when she donated the eggs in
which she waived her parental rights.
The two lived together after E.G.
gave birth to twins in December 1995 and raised the children together, listing
both mothers as parents' on the children's school forms. When the relationship
ended in March 2001, E.G. insisted on sole custody. K.M. went to
court.
In their 4-2 ruling, the justices said that California law gives
parental rights to both mothers even though K.M. had signed a waiver
form.
"When partners in a lesbian relationship decide to produce children
in this manner, both the woman who provides her ova and her partner who bears
the children are the children's parents," Moreno wrote for the
majority.
Justices Kathryn Mickle Werdegar and Kennard each
dissented.
Werdegar said the majority, in trying to clarify the law, had
muddled it by calling into question the validity of written agreements that an
unknown number of couples had relied on.
"Precisely because
predictability in this area is so important, I cannot agree with the majority
that the children in this case do in fact have two mothers," Werdegar wrote.
"Until today, when one woman has provided the ova and the other has given birth,
the established rule for determining disputed claims to motherhood was clear: We
looked to the intent of the parties."
"We cannot recognize K.M. as a
parent without diminishing E.G.'s existing parental rights," Werdegar wrote,
warning that doing so might violate E.G.'s rights under the U.S.
Constitution.
Diana Richmond, the attorney who represented E.G., said she
was considering an appeal to the U.S. Supreme Court.
Richmond said she
was particularly troubled that the majority had given short shrift to the waiver
that K.M. had signed.
But K.M.'s attorney, Jill Hersh, said she was
thrilled at the outcome. At Hersh's office, K.M.'s eyes watered as she described
painful years away from the children, fraternal twins who are now 9.
"If
you have children, you can only imagine what it's like to be separated from your
children and feel their grief," said the Marin County woman, who released only
her first name: Kim.
"It's been my life every day to wait and wait and
wait and perseverec. I do hope that the decision provides hope to other
families. No children should have to endure what my children have had to
endure."
*
Romney reported from San Francisco, and Weinstein from Los
Angeles.