NationStates Jolt Archive


What happens to the child of divorced same-sex parents?

Eutrusca
09-09-2005, 01:52
COMMENATRY: So what do you do with these children born to one member of a same-sex marriage? So far, there are no real answers. I suspect that the fairest thing is to have the same law apply to the children of same-sex marriages as apply to those of tradtional marraiges. It will be interesting to track this.


Custody After Civil Union Pits States and Judges (http://www.nytimes.com/2005/09/08/national/08custody.html?th&emc=th)


By ADAM LIPTAK
Published: September 8, 2005

MONTPELIER, Vt., Sept. 7 - Judges in Vermont and Virginia have different ideas about what is best for Isabella Miller-Jenkins, 3, born to a woman who had a civil union with another woman in Vermont. The relationship ended two years ago. Now each woman says Isabella is her daughter, with one asserting exclusive motherhood.

The judge in Vermont ruled that the women should "be treated no differently than a husband and wife." He established a visiting schedule and held the biological mother, Lisa Miller, in contempt of court when she failed to comply with it.

The judge in Virginia ruled that Ms. Miller had the sole right to decide who could see the child. He ruled that the former partner, Janet Miller-Jenkins, had no "parentage or visitation rights."

Legal experts say the decisions, which reached State Supreme Court here on Wednesday, are the first to present a direct conflict between two state courts on a substantial legal question arising from a same-sex couple's union. The decisions offer a preview, the experts added, of what are quite likely to be many similar conflicts around the nation.

Ms. Miller moved back to Virginia, where Isabella was born, in September 2003. The couple had visited Vermont briefly for the civil union ceremony in 2000 and lived there for more than a year after Isabella was born in 2002.

"When I left Janet," Ms. Miller said in a telephone interview, "I left the homosexual lifestyle and drew closer to God."

Ms. Miller-Jenkins, who declined to be interviewed, has said the couple planned and cared for Isabella together. She read a statement outside the courthouse after arguments on Wednesday.

"I sincerely believe," she said, "that it is best for my daughter that both of her parents continue to be an active, loving, responsible part of her life."

The justices here were largely skeptical of the arguments offered by a lawyer for Ms. Miller, who, like her former partner, had been known as Ms. Miller-Jenkins. The justices also indicated that they were working in uncharted territory.

"The assisted reproductive technologies are galloping ahead of existing law," Justice Marilyn S. Skoglund said.

A few minutes later, Justice Denise R. Johnson asked about the consequences of inconsistent rulings. A lawyer for Ms. Miller-Jenkins, Jennifer L. Levi, said the question was premature. A Virginia appeals court will hear arguments in that suit next Wednesday.

"I'm just trying to figure out what the effect of our decision is," Justice Johnson said, in a tone suggesting it might have no effect because Isabella and Ms. Miller live in Virginia.

The cases involve the interaction of two sets of laws. At the state level, Vermont and Virginia have laws that say the first court to take jurisdiction of a custody case should make the final determination. That would seem to help Ms. Miller-Jenkins here.

In November 2003, it was Ms. Miller, the Virginian, who filed papers in Vermont to dissolve the union. In them, Ms. Miller acknowledged that Isabella was a child of the union and asked the court to allow her former partner to have contact with the girl. Her lawyers have since taken varying positions. Ms. Miller now says she was confused and did not mean to acknowledge any parental relationship between her former partner and Isabella.

A 2004 Virginia law, the Marriage Affirmation Act, makes same-sex unions from other states "void in all respects in Virginia." Judge John R. Prosser, of Frederick County Circuit Court in Winchester, Va., relied on that law in October in granting sole custody of Isabella to Ms. Miller.

Two potentially conflicting federal laws add to the confusion. The Parental Kidnapping Prevention Act largely tracks the state custody laws and requires other states to defer to the first courts to hear such cases. But the federal Defense of Marriage Act says states need not give effect to same-sex unions.

Joan Hollinger, who teaches adoption law at the University of California, Berkeley, said the Vermont judge had the better legal arguments. But, Ms. Hollinger added, "Vermont courts are in practical terms powerless to enforce their valid orders in Virginia if Virginia courts simply say no."

If the states' highest courts issue conflicting decisions, the case could head for the United States Supreme Court, said Mathew D. Staver, a lawyer for Ms. Miller. Mr. Staver added that similar conflicts could arise from decisions in California, where State Supreme Court ruled last month that both people in a lesbian couple should be considered a child's parents in many circumstances. The Legislature in Sacramento passed a same-sex marriage law on Tuesday.

Ms. Levi disagreed, saying the case was an instance of the ordinary heartbreak after a family breaks up.

"It's an unfortunate reality that children get put in the middle," she said. "Ultimately, what this case is going to decide is whether children born to same-sex couples should be treated the same or differently as other children."

Andrew Koppelman, a law professor at Northwestern, addressed such case in a book on interstate recognition of gay marriages that Yale University Press will publish next year.

"If the Virginia court is correct," Professor Koppelman wrote, "then no parental right arising out of a same-sex marriage is secure anywhere in the United States."

Ms. Miller said Isabella neither knew about the case nor cares about its consequences. "She doesn't even ask about Janet," Ms. Miller said. "I am the only mother."

In Vermont, Judge Cohen held Ms. Miller in contempt in September for not allowing visits to Isabella. He has not imposed sanctions.

"The judicial system as a whole simply cannot allow parties to try to take advantage of legal and cultural differences," he wrote, "which may make one state favor the position of a particular party over another."

Ms. Miller said she found the idea that a court could force her to allow Isabella to visit Ms. Miller-Jenkins particularly hurtful. "It would be like somebody off the streets coming and taking my daughter," she said. "They have no ties to my daughter."
The Similized world
09-09-2005, 01:58
I fail to see why it should be treated any differently than if it had been a conventional man-woman marriage.
Ashmoria
09-09-2005, 01:59
if the non-bio parent isnt allowed to adopt the child of his/her spouse, then s/he is just screwed. divorce and other breakups are angry bitter affairs. when one person has all the power, they tend to use it to hurt their partner who cannot then hurt them back.

yeah, same sex marriage needs to be made legal and the same assumptions apply that any other marriage has--namely that even though its impossible, the child born inside that marriage belongs automatically to both spouses.

not that that helps gay men. for them we need to allow automatic adoption of a child born to a legal spouse where the mother of the child (who cannot be in the marriage eh?) relinquishes her rights.
The Black Forrest
09-09-2005, 02:00
I fail to see why it should be treated any differently than if it had been a conventional man-woman marriage.

You would think.

However, to argue that would offer an argument that gay marriage is ok so they are going to try and avoid that.
Spoffin
09-09-2005, 02:01
The law needs some major reform here.

Incidently, am I the only person who percieved some very clear geographical stereotypes going on in that article? Blue state judge says gay partnership is real, red state judge says its not?
Dobbsworld
09-09-2005, 02:04
Ms. Miller said she found the idea that a court could force her to allow Isabella to visit Ms. Miller-Jenkins particularly hurtful. "It would be like somebody off the streets coming and taking my daughter," she said. "They have no ties to my daughter."
What silliness. It's absolutely not at all like "somebdy off the streets coming and taking (her) daughter," it's entirely like her ex coming and taking her daughter. Whatever her ex's gender. Ms. Miller, you are no pleasure to the senses whatsoever.
Rotovia-
09-09-2005, 02:04
Even if the individual judge has a problem with civil union he/she should be responsable enough to but his/her biad aside and think of the child's best interests. On a case-by-case basis. Which may very well be that a child should spend equal time with the people he/she assocaites as his/her parents, providng they are both capable of providing a standard of care required of all legal gaurdians.
The Similized world
09-09-2005, 02:05
You would think.

However, to argue that would offer an argument that gay marriage is ok so they are going to try and avoid that.
Yea, I realize. But since it's a court case affecting three people who obviously didn't previously have a problem with that, I fail to see how it's relevant. If this plays into how the case is judged, then the judge(s) needs to find a job more suitable to their skills.
Silliopolous
09-09-2005, 02:11
Well, California already dealt with some aspects of this issue and ruled that gay parents owed the same obligations as hetro couples.

http://edition.cnn.com/2005/LAW/08/23/lesbian.parents.ap/

Of course, the same people who tell you that they are against Gay marriage as they need to protect the children screamed about this ruling because, according to them,

"Today's ruling defies logic and common sense by saying that children can have two moms," said attorney Mathew Staver of Liberty Counsel. "That policy establishes that moms and dads as a unit are irrelevant when it comes to raising children."


In other words, they decided to stand on the principle of their blanket opposition to gay marriage and toss the needs of the child out the window as secondary in this particular case.


Which, to my mind, proves that the basic premise of their argument - that it is all about protecting the children - is really just political expediency rather than actually caring about a specific child.
Lacadaemon
09-09-2005, 02:13
Ms. Miller said she found the idea that a court could force her to allow Isabella to visit Ms. Miller-Jenkins particularly hurtful. "It would be like somebody off the streets coming and taking my daughter," she said. "They have no ties to my daughter."

Hahahahahaha. Tough. No-one made her go through the civil whatsit.
Silliopolous
09-09-2005, 02:16
Hahahahahaha. Tough. No-one made her go through the civil whatsit.


Agreed.

You want the benefits of formalized partnership, well that means that you also get the obligations.
Orangians
09-09-2005, 02:17
The effeminate one should get the kid.


I'm just kidding. :)
Ph33rdom
09-09-2005, 02:23
Is the mother in Vermont paying child support?
Teh_pantless_hero
09-09-2005, 02:27
The judge in Vermont ruled that the women should "be treated no differently than a husband and wife."
So the woman should get the kid and all the stuff?
Eutrusca
09-09-2005, 02:38
Agreed.

You want the benefits of formalized partnership, well that means that you also get the obligations.
Exactly. A concept which needs to be accepted by more than just gay and lesbian people in our society: accept the benefits, live with the responsibilities.
Silliopolous
09-09-2005, 02:52
Exactly. A concept which needs to be accepted by more than just gay and lesbian people in our society: accept the benefits, live with the responsibilities.


Yes, well lets also be fair. Trying to get out of those very same obligations are what has powered divorce court for hetro couples for decades too. Fights over custody, visitation, and support are what the court is intended to deal with, so this would not really be an extraordinary case were it a hetro married couple. Just another nasty divorce. So anyone equating the spiteful invective from this one split-up with a general mindset of all homosexuals is also being somewhat dishonest.


But is will be interesting to see what precedent Vermont will set on this matter.
The Nazz
09-09-2005, 03:19
It'll be a Supreme Court case before it's all over, which is why vetting nominees completely is necessary. Before Rehnquist died, the last major gay rights case was Lawrence v Texas, which was a 6-3 decision, so Roberts may not be a factor when this gets to the court.
Undelia
09-09-2005, 03:24
So the woman should get the kid and all the stuff?
ROFL! :p
Dishonorable Scum
09-09-2005, 03:47
COMMENATRY: So what do you do with these children born to one member of a same-sex marriage? So far, there are no real answers. I suspect that the fairest thing is to have the same law apply to the children of same-sex marriages as apply to those of tradtional marraiges. It will be interesting to track this.

For the second time in as many days, I find myself in agreement with Eutrusca. :eek:

But seriously - yes, they should come under the same laws as traditional couples. That's what the whole gay marriage thing is about - making the law apply equally to gay and straight couples. And yes, that does mean obligations as well as rights.

Unfortunately, I suspect it will be a long time before the US as a nation comes to a common understanding about this issue.

:rolleyes:
TearTheSkyOut
09-09-2005, 15:25
Hmm... hopefully issues like this will help increase the 'fairness' in hetero custody disputes... :)
Dempublicents1
09-09-2005, 17:29
if the non-bio parent isnt allowed to adopt the child of his/her spouse, then s/he is just screwed.

Non-adoptive step-parents have been allowed visiting rights in the past. In a way, this situation is the same.

Is the mother in Vermont paying child support?

If she isn't, she should be. She is every bit a parent of that child as the biological mother is. Of course, if Vermont's civil union laws don't allow for a non-biological parent to adopt a child (which they do not, as far as I know), we have no way of legally obligating the woman to pay child support.


There are two major problems here. The first is that a civil union is not the same thing as a civil marriage. If this were a civil marriage, and the child were born within that union, the law would be clear - custody would by default go to both parents in some joint manner. The parent with primary custody would get child support payments from the parent with secondary custody. However, a civil union does not carry all the rights of a civil marriage, and thus does not carry all the responsibilities either. Thus, a child gets hurt in the process.

The second problem is that DOMA has not yet fallen. It is blatantly unconstitutional as it attempts to bypass the full faith and credit clause of the US Constitution. However, it has not yet fallen and is still the law. Thus, a Virginia court can decide that Vermon's civil union means exactly squat. Thus, a child gets hurt in the process.
The Nazz
09-09-2005, 17:35
Hmm... hopefully issues like this will help increase the 'fairness' in hetero custody disputes... :)
I suppose it depends on what you mean by "fairness." It's sad to say, but based on my experience, problems with custody in most relationships come down to one factor--the level of assholishness between the two people splitting up, and that's a shame, because the only people truly hurt by all that crap are the kids.

My ex and I have been divorced for over ten years now, and we have a 15 year old daughter together. She's spent considerable time with both od us over the years, and we've never had a dispute over visitation, over child support, or anything of the sort, because we put her first. My ex's house was flooded by Katrina, so my daughter is coming to live with me--no questions, no arguments, not even a conversation yet about how long she'll be here or about covering the extra expenses while she's here. If divorcing people stopped trying to hurt each other with the kids, a lot of those disputes would be resolved.
The Squeaky Rat
09-09-2005, 18:13
So we have :

One child.
One biological mother.
One former partner of the mother who has no biological ties to the child.

Surely this type of thing has happened before ? Widows that remarry ?
Or perhaps more relevant: an infertile straight couple using a sperm donor ?
If those ex-partners got visiting rights, so should this one. If they didn't , neither should she.
Liskeinland
09-09-2005, 18:19
Normally the mother gets custody, so the child should go to the most effeminate one. (You may have noticed that I've decided I haven't been offensive enough lately, so I'm taking care of that)
Dempublicents1
09-09-2005, 22:26
Normally the mother gets custody, so the child should go to the most effeminate one. (You may have noticed that I've decided I haven't been offensive enough lately, so I'm taking care of that)

It would have been offensive, if you hadn't pointed out that you were just saying it to be offensive. Ah well.
Liskeinland
09-09-2005, 22:34
It would have been offensive, if you hadn't pointed out that you were just saying it to be offensive. Ah well. I'm good at offensive. A girl joked tonight about not liking this sexist guy because he's Irish, so I said "At least he knows womens' place". Not sure if it's a good talent…
Equus
09-09-2005, 22:37
Normally the mother gets custody, so the child should go to the most effeminate one. (You may have noticed that I've decided I haven't been offensive enough lately, so I'm taking care of that)

How would you determine which one was most effeminate?

The one who came to court in full makeup, skirt, and heels, or the one who baked a cake for the judge?
Liskeinland
09-09-2005, 22:39
How would you determine which one was most effeminate?

The one who came to court in full makeup, skirt, and heels, or the one who baked a cake for the judge? Cake baker. More motherly.
Equus
09-09-2005, 23:01
Cake baker. More motherly.

So to you motherly = manipulative and willing to bribe?
The macrocosmos
09-09-2005, 23:28
"The assisted reproductive technologies are galloping ahead of existing law," Justice Marilyn S. Skoglund said.

this implies that the child was indeed conceived by artificial insemination or some other technological process. in this case, then, having the child was most likely a decision that the two parents made together in wedlock and i would say that both parents should have some kind of visiting rights as both women really do lay an equal claim to parenthood. however, in doing so i am implicitly accepting the idea that legitimate children are only born into wedlock, which i don't usually like one bit. what if they made the decision without being married? what does being married really have to do with anything at all if it was a decision they made together.....being unmarried doesn't stop a man and a woman from having a child, breaking up and going after each other for visitation rights or even accidentally having a child and wanting equal rights in raising it.

this is indeed tricky.

furthermore, i do see the biological mothers' point that the other woman is in some ways a "step-mother" to the child and has less legal rights. do step-parents get legal visitation rights against the wishes of the true parents? why would or should they? however, in accepting this argument i am implicitly accepting that one woman is not a true parent, which i do not like one bit as the decision to have this child was made by both women and not just the one that used her egg

tricky, tricky, tricky.

unfortunately it appears that one of these women is trying to keep the child away from the other because of her orientation and a fear it might warp the kid, which is the ultimate irony in all of it.
Dempublicents1
10-09-2005, 08:37
furthermore, i do see the biological mothers' point that the other woman is in some ways a "step-mother" to the child and has less legal rights. do step-parents get legal visitation rights against the wishes of the true parents?

Sometimes, yes.

why would or should they?

They have both acted as parents to that child, and are thus a part of that child's life. Unless one parent is abusive or something like that, it is generally in the best interest of the child to keep both parents in their life, regardless of what one of the parents may want to bitch about.

however, in accepting this argument i am implicitly accepting that one woman is not a true parent,

A step-parent is no less a true parent than a biological parent, as long as they are acting as a parent to that child.
The Squeaky Rat
10-09-2005, 08:58
furthermore, i do see the biological mothers' point that the other woman is in some ways a "step-mother" to the child and has less legal rights. do step-parents get legal visitation rights against the wishes of the true parents? why would or should they?

I think the following situations are similar tho this one:

1. A couple wants to have a child, but the man is sterile. They use a anonymous spermdonor to conceive. Biologically the man is not related to the child, but should he be considered to be her father nonetheless ?

2. A wife cheats on her husband and gets pregnant. The man doesn't know and raises the child as his own. After 16 years the couple breaks up. Can the woman claim he has no parental rights since he is not biologically related to her daughter ?