Gay Custody Disputes

The Wall Street Journal has an interesting article that highlights a growing issue nationally and in the Rhode Island legal community. Increasingly, we are seeing the relationships of gay couples (married and non-married) disolving and impacting their children. Naturally there are issues that are unigue to gay couples, and this article discusses custody disputes when only one member of the couple is the legal parent of the child.

New York's highest court to begin tackling thorny question

On Thursday, the New York Court of Appeals will hear arguments in a case brought by a gay woman seeking visitation rights for a young boy she says she helped raise. The suit challenges a New York state law that limits the scope of parental rights to those with a clear biological or adoptive tie to a child.

The case is being watched closely by gay-rights groups and mirrors challenges playing out in a handful of other states, including Maryland and Massachusetts, often involving lesbian couples who were together when one of the women had a child through artificial insemination. Plaintiffs argue "parenthood" should include those who play a key role in a child's upbringing with the support of a birth parent, even when not connected to the child by biology or an adoption.

"What constitutes a family ain't what it used to be," said family-law attorney Richard Adago, who supports broadening New York's definition of a parent. "It's not mom and dad and the three kids and the white picket fence."

Opponents say expanding the scope of who can seek parental rights could lead to bogus challenges. Without the link of biology or adoption, they argue, anyone who contributed to a child's upbringing, including friends or nannies, could seek legal rights, leading to fraught custody battles that aren't in the best interests of children.

Hard statistics don't exist on the number of families such custody laws affect. But research from the University of California, Los Angeles School of Law Williams Institute estimates that in 2013, 15% of unmarried, same-sex couples nationwide were raising children.

As the makeup of families evolves, dozens of states, including Delaware, New Jersey, Texas and Colorado, have established ways to broaden parental rights.

But others, including Florida, Utah and New York, take a more limited view, largely relying on marriage at the time of a child's birth or a formal adoption to solidify rights for non-birth parents. Gay-rights groups argue that such laws don't always account for couples who choose to have children while unmarried, leaving one parent a legal stranger if a relationship disintegrates.

"The children in these cases have two parents. It's only an accident of law that leads one of those parents to be unrecognized," said Suzanne Goldberg, a Columbia Law School professor who, along with 45 other academics, is urging the New York court to broaden the definition.

But domestic-violence experts fear such a change could put those in abusive relationships at risk of losing custody fights to former partners they are trying to cut out of their lives.

Dorchen Leidholdt, the director of the Center for Battered Women's Legal Services at Sanctuary for Families in New York, says an overly broad definition of parent "gives an opportunity for an abuser or someone who came into the picture quite late in the game to really create an enormous amount of disruption and threaten the stability of the family."

Religious groups have argued that families formed by means other than biology can have negative consequences on children. Before gay marriage became legal nationwide, some groups opposed an expanded definition of parent because they said it contradicted with laws denying same-sex couples the right to be considered legal spouses.

The New York appeal centers around the broken relationship of Brooke Barone, 33 years old, and Elizabeth Cleland, 31, who were dating in western New York almost seven years ago when Ms. Cleland had a son through artificial insemination. The two later split up.

Ms. Barone says she played the role of doting parent, cutting the baby's umbilical cord, and caring for him through bath times, meals and doctor's appointments until Ms. Cleland cut off contact in 2013. "I was his Mamma B," Ms. Barone says. "I live for the day I get to wrap my arms around him and tell him how much I missed him."

Ms. Cleland says the two had a tumultuous relationship and that she stopped feeling safe leaving her son with Ms. Barone. "I look at my son, and I'm the only mom he's ever known," said Ms. Cleland, who married four years ago.

Ms. Cleland's attorney, Sherry Bjork, said she believes New York's definition of parent should be broadened, but that it is more appropriate for the state Legislature to make such a change. In Ms. Bjork's view, the current law makes clear that Ms. Barone can't seek custody.

In a short opinion released last year in the New York case, a lower court said there was good reason for the state's "bright-line rule" requiring parentage to come from biology or adoption. The rule, wrote the court, "promotes certainty in the wake of domestic breakups" that might lead to combative and drawn-out custody and visitation battles.

Decisions are expected soon from high courts in Maryland and Massachusetts, which heard oral arguments in two similar cases earlier this year.

Some caught up in legal battles have argued that the sole fact a pregnant woman was dating someone at the time a baby is born shouldn't penalize her later if no other steps were taken to make the partner a legal parent. "What did I do, other than be in a relationship with someone while pregnant, that gave up my legal rights to my children?" said attorney Jennifer Lamanna of her client's position in the case on appeal in Massachusetts.

While parental rights can typically be secured through marriage or adoption, for many gay and lesbian couples, marriage only became possible after last year's landmark Supreme Court decision backing gay marriage. Legally adopting a partner's child can sometimes be prohibitively expensive, lawyers say, and some couples don't realize it is even necessary until a relationship ends.

Those backing a change to New York's law note the court has at times recognized heterosexual men as parents, even without a genetic or adoptive tie, as a way to force child-support payments. Such rulings, backers say, are seemingly in conflict with a 1991 New York Court of Appeals precedent that has blocked same-sex former partners from winning custody and visitation rights.

"We think it's time for the court to view these families through a lens of normalcy," said Susan Sommer, an attorney at gay-rights organization Lambda Legal who represents Ms. Barone in the appeal. "It should not be that the only children who get legal protection are those whose parents marry."