Last Thursday, an appellate court in NY ruled--in a unanimous, unsigned opinion--that Vermont civil unions don't count in determining who is and who isn't a parent for purposes of custody. More specifically, the court ruled that a NY woman whose same-sex partner gave birth to a child after the couple entered into a Vermont civil union (and also signed the NYC Domestic Partner registry, btw) has no standing to assert parental rights after the couple broke up. Since Debra (the non-biological mother) was neither a "biological" nor an "adoptive" parent, the court ruled, she simply doesn't count as a parent for purposes of New York custody law.
I think the ruling is both unwise and an unnecessarily narrow reading of both the relevant statutes and prior case law, and I hope the NY Court of Appeals (the state's highest court) will overturn it.
While I'm a little pissed at the court, I'm really pissed at Janice R. the biological mother.
I recognize that when a relationship ends, the voices of our better angels often get drowned out by rage. Divorce rarely brings out the best in people. I also realize issues relating to custody are often the hardest part of an already difficult situation. I've watched some people, both LGBT and straight, handle the "kid" part well when their relationships failed, and some handle it poorly. Janice, in my opinion, is firmly anchoring down the "poorly" side.
Here's the skinny:
Janice and Debra began their relationship in 2002 and moved in together in 2003. In October 2003 they registered as Domestic Partners in New York City, where they lived. In November, they went to Vermont and entered into a civil union. In December, their son "M.R." was born. The couple lived together for about 2 1/2 years after M.R.'s birth before splitting up and the appeals court found that Debra had a "loving and caring" parental relationship with the boy. Janice cut off Debra's contact with M.R. in May 2008 and shortly after that Debra filed suit, seeking joint legal and physical custody and parenting time (and also the restoration of telephone contact with M.R.).
As might be expected, Debra and Janice have very different interpretations of the contours of their relationship. As Art Leonard described on his blog,
Debra's petition to the court paints a detailed picture of a couple intending to create a family together, asserting her full participation in the decision to have a child, in assisting her partner through the pregnancy, and in parenting the child after it was born.
She further claims that Janice, a lawyer, had assured her that adoption was unnecessary because Janice "would never take M.R. away from her" and so they never pursued it.
Janice, both in her own words and through the words of her lawyer, tells a very different story. In her petition to the court in an earlier phase of the proceedings she argued that she agreed to the domestic partnership and civil union to placate her partner, but not with the intention of creating a legal family. (!)
Janice's lawyer diminishes Debra's status even further. As Newsday reported,the lawyer said "Debra was not a parent. She was not treated like a parent; she was treated like who she was. She was Janice's short-term girlfriend."
This is appalling behavior even by nasty custody fight standards, because it poses a real chance of doing much more than just further f**king up the children and adults involved, which is bad enough. It also has the potential to mess with the lives of LGBT parents and their kids in an entire state. The court in this case held that its decision was controlled by Matter of Alison D. v Virginia M., a 1991 NY case where a biological mother was successfully able to shut her former same-sex partner out of their children's lives by convincing the court she wasn't a parent under New York law. If Janice prevails in the NY Court of Appeals (I'm assuming the case will end up there), the law made in that case will in turn diminish the parental rights of subsequent LGBT parents. Remember, Janice isn't arguing that she's a better parent than Debra or is otherwise in a better position to care for their son. She's arguing that Debra isn't a parent at all, and that even the existence of a civil union doesn't count to establish parental intent, because civil unions themselves aren't real expressions of intent to create a legal family.
As appalling as it is, this case perfectly captures one of the most important legal reasons for same-sex couples to be able to marry and one of the most important reasons for same-sex marriages and civil unions to be recognized nationwide.
First, "marriage"--unlike "civil union"--carries with it a web of familial associations. Can you possibly imagine someone making the claim that she married her "short-term girlfriend" only to "placate her partner" and without intending to create a legal family? Any judge in the country would laugh that claim out of court on its face. (Whether the court would be able to recognize that marriage legally is a different question. Every judge would "get" that people create families when they marry.)
Second, the existing patchwork of legal recognitions allows people to evade the legal consequences of their actions by crossing state lines. (Andrew Koppelman has a great book on this). Under Vermont law, children born into an existing civil union are considered to be the legal children of both civil union partners. Which is great if you stay in Vermont, but lousy if you leave Vermont and go to a state that doesn't recognize civil unions. (New York recognizes same-sex marriages, but not civil unions.) Although Lisa Miller failed when she tried to use Virginia's anti-marriage amendment to deprive her ex- civil union partner of access to their child, she failed for some pretty case-specific reasons that probably won't apply to other LGBT people trying to use the lack of interstate recognition to push ex-partners away from their kids.