Today's post is from Nancy Polikoff, author of Beyond (Straight and Gay) Marriage, and a Professor of Law at American University Washington College of Law. Polikoff teaches Sexuality and the Law and has taught Family Law for more than 20 years. She posts regularly about LGBT family issues at the Bilerico Project and at her blog.
Lesbian couples raising children in the suburbs of my city, Washington, DC, got a one-two punch in the last three weeks. First the Maryland Court of Appeals ruled that when only one member of the couple had adopted the child they were both parenting, and then the couple split up, that the child had only one mother….and that mother can decide whether to maintain or stop contact between the child and the other mother. Since 2000, Maryland courts had been awarding visitation rights in this situation. Not anymore:the highest court in the state said there’s no such thing as a “de facto” parent with rights to continue a relationship with a child she has raised.
Last week, while the Virginia State Supreme Court handed down a ruling that on the surface seemed to support gay parents, an appeals court in that state ruled in a way similar to the Maryland court Lots of people heard about the Miller-Jenkins case, which was a cover story in the Washington Post Magazine. In that case, the biological mom (Lisa) moved from Vermont to Virginia with the child, renounced her lesbianism, obtained representation from the right-wing, anti-gay Liberty Counsel, and argued that the state’s version of the Defense of Marriage Act meant the courts should not enforce a Vermont order giving the non-bio mom (Janet) visitation rights. Earlier this month, the Virginia Supreme Court ruled in Janet’s favor, prompting glee among gay parents everywhere – including in the blogosphere.
But that case was decided on a technical issue; the Virginia court agreed that the Vermont court had jurisdiction to rule in the case and therefore under both state and federal law Virginia had to respect Vermont’s order.
In contrast, that same week, a Virginia appeals court soundly rejected a nonbiological mom’s request for visitation. You can read the complete ruling here [PDF], but here are the facts: Christine and Jennifer decided to have a child together. Jennifer gave birth after unknown donor insemination. Christine was there when the child was born and the couple gave the child a last name that was a hyphenated form of both of their names. The couple shared parenting. After the couple split up, Christine continued to financially support the child and care for her, but when she sought a visitation schedule in court, Jennifer opposed it.
In ruling against Christine, the Virginia appeals court determined that it would not recognize a “de facto parent” or a “psychological parent.” Christine could obtain visitation only by coming forward with an overwhelming amount of proof (called “clear and convincing evidence”) that her daughter would suffer harm from denying her visitation. Since a lower court had stopped visitation in the fall of 2005, the court said there was no evidence that the child was harmed at this point by denying visitation.
Now . Liberty Counsel, whose motto is “Restoring the Culture One Case at a Time by Advancing Religious Freedom, the Sanctity of Human Life and the Traditional Family,” filed a brief supporting Jennifer. Unlike Lisa Miller, Jennifer does not appear to have renounced her lesbianism. Nonetheless, Liberty Counsel supported her. So what’s their interest? In praising the court’s ruling, Liberty Counsel says that “the "de facto" or "psychological" parent doctrine has been used by same-sex marriage advocates to undermine the institution of marriage and weaken the rights of parents.”
Actually, the “de facto parent” doctrine has been used in many states [pdf] – and the District of Columbia [pdf] – to protect a child’s family. When a heterosexual couple has a child together they are both parents of the child; they don’t need to marry to get legal recognition as the child’s parents. This may “undermine the institution of marriage” but it’s good for the child and has been the law for more than 35 years. The rule should be the same for a lesbian couple who plans and raises a child together.
So, when will a right-wing, anti-gay legal group help out a lesbian mother? Answer: When she’s trying to negate the family she formed and eliminate the other mother from a child’s life by claiming the other mom is not a parent.
I expect Liberty Counsel to try to destroy our families; I don’t expect lesbians to try to destroy our families.
For further reading, see Nancy Polikoff’s post for Blogging for LGBT Families Day 2008.