Nancy Polikoff

Missouri court deprives one child of a second mom and the other of child support

Filed By Nancy Polikoff | June 25, 2009 9:30 AM | comments

Filed in: Marriage Equality, The Movement
Tags: lesbian mothers, Missouri, second parent adoption

The number of states that disregard a child's second mother grows. I don't know whether to scream or cry. I do know that if judges cannot see the family in front of their eyes then the answer lies in changing state statutes to recognize two parents of a child born through donor insemination.

Here is the latest disaster, which adds Missouri to the hall of shame.

Leslea and Michelle White (Michelle changed her surname to Leslea's...a heterosexual custom I wish same-sex couples would discard...but I digress) had been together for about 4 years when Michelle gave birth to one child, C.E.W. Two and a half years later, using the same anonymous semen donor, Leslea gave birth to their second child, Z.A.W. When that child was about a year and a half the couple separated and the children went back and forth between the two moms. Some months later, Michelle refused to allow Leslea any contact with C.E.W.

Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.

The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.'s life, let alone C.E.W.'s best interests. In the most offensive line in the opinion, the court rejected Leslea's theories by saying that "neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children." (emphasis added). But of course Leslea is not "any third party." To C.E.W., she is a mother. To the state of Missouri, she is a stranger.

The court also dismissed Leslea's claim for child support from Michelle for Z.A.W. despite Leslea's allegations that the couple explicitly agreed to raise the children of their relationship together and shared the costs of the pregnancy and the childrearing. One judge, of the three on the panel, dissented from this part of the ruling (only!) and would have allowed Leslea the opportunity to prove that she relied on Michelle's agreement to co-parent in deciding to have a child and that therefore Michelle should bear some financial responsibility for the child.

Missouri, like many states, has a statute that says that a husband who consents to his wife's insemination with donor semen is the father of the child she conceives. It's a statute based on the original Uniform Parentage Act written in 1973. As I have written about in several other posts, the latest version of the UPA extends that status to a "man" who consents to a woman's insemination with the intent to parent, and the American Bar Association Model Act Governing Assisted Reproductive Technology extends parentage to an "individual" who consents to a woman's insemination with the intent to parent. That would cover Michelle and Leslea, and the ABA intended exactly that with its model law.

Earlier this week I posted that the Uniform Probate Code definition of a parent-child relationship for purposes of inheritance now includes an "individual" who consents to a biological mother's insemination with the intent to parent.

I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle...where were you?

cross-posted at Beyond Straight and Gay Marriage

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This is yet another reason why we need all jurisdictions and the feds to recognize same-sex marriage. It is much more practical to fight for marriage equality and claim all the benefits that marriage has, rather than to try to invent new legal animals that the public will not or has difficulty accepting. LGBTQ are all part of society at large, and we should claim our full equality, claim those rights, and not be demanding that the entire social-legal system be reinvented for us. It just won't fly. This is why I take strong exception to your positions against marriage. This case would have been decided differently in Iowa, Massachusetts, Connecticut, etc. where our marriages are legally protected.

Actually, marriage is not the answer here. It creates a presumption that the spouse is a parent, but the presumption can be rebutted, just as it can for the husband of a woman who gives birth. In many states the presumption can be rebutted based on biology, leaving lesbian couples out entirely unless the non-gestating mother has contributed an egg to the child's conception (something no couple should be required to do for legal reasons). Lawyers still advise married couples in Massachusetts to do second parent adoptions.

Plus, heterosexual couples do not have to marry to both be recognized as the parents of a child. That is one of the most important legal advances of the second half of the 20th century. So it would be a step backwards to require same-sex couples to be married to protect their parent-child relationships.

As I have written about often, the answer for lesbian couples lies in assisted reproduction legislation that makes the partner of a woman who gives birth through donor insemination the parent of the resulting child. This is doable whether a state has marriage or not. (The only state that has it now is New Mexico -- effective January 1, 2010 -- and they do not have marriage or CU or DP. In fact, we need this statute even where there is marriage or civil union or DP. There is litigation pending in some of those states now because of the lack of such statutes and the rebuttability of the parentage presumption.

Donna Pandori Donna Pandori | June 25, 2009 10:29 AM

Actually what's needed is second-parent adoptions. A second-parent adoption allows a second parent to adopt a child without the "first parent" losing any parental rights. Here's a map of second-parent adoption laws in U.S.

Yes second parent adoption accomplishes this, and I am proud to have helped create the legal theories that made second parent adoption possible. But now I am on to replying to the question I have heard from countless lesbian moms: "Why should I have to adopt my own child?" Reforming parentage statutes would let me say, "you don't have to," although to be sure that the parental relationship will be respected if the couple moves to another state, second parent adoption will continue to be the surest protection. Here's a link to one of my many posts about this:

Gah! Both "parents" suck.

One for using the children emotionally hostage and the other for using financial hostage.

Great. Love seeing the LGBTQRXYZ "community" being as HUGE of an asshole as the heteros.
See? We are are just like everyone else.

Proven in court w/lots of lawyer fees.
Something that religion/science go back and forth... and it's really all about conditioning.

Born from the asshole and live as an asshole.
It doesn't have a thing to do sexual orientation.

I mean the show me state has showed us what they are about.

That's what I was thinking when I was reading this - why do they even need to go to court? Wouldn't both moms have an interest in maintaining each other's visitation?

Apparently not. I hope Michelle has a good reason for tearing this family apart.