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lordhelmet
QUOTE
Battles between estranged lesbian partners over child custody, visitation and financial support will reach the California Supreme Court on Tuesday in a hearing to determine the ground rules for parental disputes between same-sex couples.

http://sfgate.com/cgi-bin/article.cgi?file...MNGNVCT8EU1.DTL

Later this week, the court will hear another lesbian pair's discrimination case with possible implications for the looming legal war over same-sex marriage.

Tuesday's three-hour hearing in San Francisco combines three lawsuits from different counties with one central issue: whether a member of a same-sex couple who helped to plan a childbirth and raise the child should be considered a legal parent, regardless of biological ties or marital status.

A majority of lower courts have said no, limiting parental rights to the birth mother unless her partner has formally adopted the child. The state's high court is due to decide the issue within 90 days.

A majority of lower courts have said no, limiting parental rights to the birth mother unless her partner has formally adopted the child. The state's high court is due to decide the issue within 90 days.


Question for debate:

How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?
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Amlord
How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?

If you look at the biology of the situation, the lesbian partner is not a biological parent. In this instance, the partner helped raise the child, but is that enough to qualify as a parent?

I'd say no. Let's take an analogous situation: A girl who is pregnant wants nothing to do with the father of the baby. Or, let's say she is artificially inseminated. Should her new boyfriend be required to pay child support if he helped raise the child? Should he have visitation rights?

I'd say the answer is no to both questions. An unrelated boyfriend or girlfriend is not a parent, even if they want to be.
Aquilla
How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?

California has a concept that is sometimes applied in family law cases that might deal with this one. I haven't been able to locate it specifically, I'm not even sure if it's codified. Basically this concept is that if a person can show that they've been a de facto parent through such actions as financial support, nuturing and the like, they have standing in California courts as a parent. That would allow a same-sex partner to request visitation with the child and most likely get it. It is usually used in the cases of grandparents, but I see no reason it couldn't be applied in this case.

Edited to add.....

The primary goal in California custody cases is whatever is in the best interest of the child. If a person can demonstrate to the court that they've been an important part of the child's life and that the child has and will benefit through contact with that person, they will be granted some sort of visitation rights.
CruisingRam
I have been looking all over the net for this one too Aquilla- but didn't Robert DeNiro have to pay child support to a child that later proved not to be his own, being lied too and tricked by the mother, yet, because he had provided support, then he was a de facto parent? I have heard of a few cases like this- not same sex of course, but fraud allowed to be commited by the mother against someone she CLAIMED was the parent, and then perpetuated by the court for the "good of the child".

I think this MIGHT have relevence in this case.

I have always said that the entire gay marriage debate is not about protecting the sanctity of marriage, but rather, the sanctity of divorce w00t.gif
Eeyore
How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?

It should rule on law without considering the sexual status of the partner. If people in California have de facto rights based on the time they have devoted to a child and its upbringing, than a lesbian, also being a person should have the same rights. If people in CA do not have these rights regardless of status the courts should rule against the partner.

If this outcome does not suit the best interest of the child, legislators should try to find a solution that would fix it. Before then the courts should uphold the present law.
Aquilla
QUOTE(Eeyore @ May 23 2005, 12:39 PM)
How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?

It should rule on law without considering the sexual status of the partner.  If people in California have de facto rights based on the time they have devoted to a child and its upbringing, than a lesbian, also being a person should have the same rights.  If people in CA do not have these rights regardless of status the courts should rule against the partner.

If this outcome does not suit the best interest of the child, legislators should try to find a solution that would fix it. Before then the courts should uphold the present law.
*




California Superior Courts (which is where family law cases are heard) are given very broad leeway by the California Legislature in determining issues involving custody and visitation. In effect the law directs the judge that the primary consideration in such matters should be what is in the best interest of the child. This gives the court pretty much a free hand to evaluate the situation on a case basis and make the appropriate ruling. That's why I termed the idea I cited earlier as a "concept". I think it was derived from a ruling made by a Superior Court judge in a custody/visitation case. Something like "Person with a compelling interest", "Person with a special interest" - something like that. Now before people start screaming "judical activism" here keep in mind that the law simply directs the court to rule in whatever fashion suits the best interests of the child. As I stated I have heard of this sort of thing used in the case of grandparents requesting visitation rights and also in the case where a man is not the biological father of a child but has actively participated as the child's father in a day to day fashion. If he can prove he's done that to a California Court, he will recieve the same consideration by that court that he would as the biological father - appropriately so. In the case cited in this thread, should such proof be offered by a same-sex partner, I would expect the court to rule the same way.

CR's citation concerning DeNiro and such cases is an entirely different matter. That deals with paternity and child support. California law is far more well-defined and strict there.

Edited to add the following:

Reading through these cases it would appear that the arguments being presented are more in form of legal status with respect to same-sex marriage than with respect to parenthood. sad.gif That is unfortunate. I really hate it when special interest groups use kids to "make a point". mad.gif
hayleyanne



How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?


It is not an issue of the "rights" of the same sex partner at all. It is an issue of what is best for the child.

If two people make a commitment to raise a child and they subsequently break up-- custody and support issues should be resolved in a way that is best for the child. That means that the non-custodial partner should be required to pay full child support. Additionally, if the court determines the child would benefit from visitation or shared custody, then that should be granted. It is unfortunate that both sides in the gay marriage war are getting involved in this issue. The primary consideration should be the children being raised by the two people and what is best for those kids.
Amlord
The "best interests of the child" obviously must have boundaries.

It would probably be in the best interest of my children in Bill Gates were forced to pay child support for them. I doubt he will be forced to, however.



More to the point, from the original article:

QUOTE
Rulings in New Jersey, Colorado and several other states have granted either parental status or visitation rights to a same-sex partner who had bonded with the child. While not biologically related, such a nurturing adult may be considered a "psychological parent,'' those courts have ruled.


What's to prevent a teacher, for instance, from claiming that they "bonded with the child" and should have visitation? The standards seem ludicrous here.

One of the three cases in CA involves a situation where one partner donated the eggs and the other carried the child. In that case, I would definitely say that both should be considered parents. In the other cases, I'd side with the courts to put the burden of proof overwhelmingly on a non-biological "parent".

It cuts both ways: should a non-biological "parent" be forced to pay support? Should they be guaranteed visitation? I think it's best to err on the side of caution and use "no" as the default answer to both of these questions.
hayleyanne
QUOTE(Amlord @ May 24 2005, 10:15 AM)
The "best interests of the child" obviously must have boundaries.

It would probably be in the best interest of my children in Bill Gates were forced to pay child support for them.  I doubt he will be forced to, however.



More to the point, from the original article:

QUOTE
Rulings in New Jersey, Colorado and several other states have granted either parental status or visitation rights to a same-sex partner who had bonded with the child. While not biologically related, such a nurturing adult may be considered a "psychological parent,'' those courts have ruled.


What's to prevent a teacher, for instance, from claiming that they "bonded with the child" and should have visitation? The standards seem ludicrous here.

One of the three cases in CA involves a situation where one partner donated the eggs and the other carried the child. In that case, I would definitely say that both should be considered parents. In the other cases, I'd side with the courts to put the burden of proof overwhelmingly on a non-biological "parent".

It cuts both ways: should a non-biological "parent" be forced to pay support? Should they be guaranteed visitation? I think it's best to err on the side of caution and use "no" as the default answer to both of these questions.
*



But Amlord--from a policy perspective, isn't the more cautious approach one that looks at the intent of the couple (married, unmarried, heterosexual, homosexual) when they both took on the responsibility of raising a child? Society must insure that couples take the decision to raise a child very seriously. If a couple undertook such a serious commitment as raising a child, they should be held to it, regardless of the biological relationship to the child. Child support should be imposed on the person who does not have custody of the child. Similarly, the noncustodial parent should be granted visitation rights if a bond has been established (and this can be shown by evidence) between that person and the child.
Amlord
In some states, taking a child into your home and caring for them is grounds for pseudo-parenthood.

Let's say I have a girlfriend who has a child. If I agree to have the girlfriend move in with me because she is being evicted and I subsequently pay some of the costs for childcare, should I then be forever bound by my generosity?

In these cases, the children were already alive when the partnership was joined. That is, one partner had children that she brought into the relationship. Should the second partner be obliged to provide support? Should the biological parent be forever obliged to allow visitation for such a person?

When the phrase "the good of the child" in invoked, it should only be applied to biological parents or adoptive parents. That is, those that have an undeniable legal obligation in the matter.

Forcing you to grant me visitation rights to your children because I was their nanny for the first 10 years of their lives does not seem like a very sound legal basis. I can imagine all sorts of scenarios in which unrelated adults can ask for either visitation rights or child support from those who would be disinclined to provide them.

Who determines intent, if nothing is written down? Whose word should we take when determining that both partners wanted to have and/or raise children? There is simply too much reliance on hearsay without legal documents.

Let's take a real life example of a guy I know. After being widowed, he decided to remarry. He had a daughter, as did his new wife before this marriage. Neither adopted the other's child. Seven years later, they divorced. After the divorce, there is no obligation for either to pay the other for child support, despite the income disparities between them. Should either of them pay to support a child that is not their own?

This example is similar to one of those cited in the article.
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Eeyore
QUOTE(Amlord @ May 24 2005, 02:40 PM)



Let's say I have a girlfriend who has a child.  If I agree to have the girlfriend move in with me because she is being evicted and I subsequently pay some of the costs for childcare, should I then be forever bound by my generosity?


Forcing you to grant me visitation rights to your children because I was their nanny for the first 10 years of their lives does not seem like a very sound legal basis. 

Let's take a real life example of a guy I know.  After being widowed, he decided to remarry.  He had a daughter, as did his new wife before this marriage.  Neither adopted the other's child.  Seven years later, they divorced.  After the divorce, there is no obligation for either to pay the other for child support, despite the income disparities between them.  Should either of them pay to support a child that is not their own? 

This example is similar to one of those cited in the article.
*



Well between slippery slope arguments there are a few keen observations.

Yes a law that asks for the situation to be looked at carefully gives more power to a judge in this case. It is the right of a legislature to think that this is the best case.

Perhaps in California if your friend divorced after seven years of marriage and the situation was weighed with the wishes of the divorcing adults and children taken into account the result would have been the same.

In my case I have not been responsible enough to this point to adopt my daughter who I met as my wife's daughter when she was 13 months old. She has never ever seen her biological father and has never received a penny of support from him although her existence and whereabouts has been known by her biological father from day one.

Because I have not yet legally adopted her, although that is my and her mother's intentions, if my wife passed away tomorrow our family would be torn apart and the state would take custody of my daughter (I am the only person she has ever called daddy) and I would have no legal standing.

She would lose her mother, her four year-old brother, her four week old baby sister, her father, and her home all at once, because the local judge would have no discretion to act.

Sure I would deserve the blame, and I would never have any economic or legal obligation to her again. But it would be a double tragedy of the worst type for my daughter.

In all of the rhetoric about judicial activism lately, the need for a human look at the context around our crafted state, local, and national laws has been pushed into the dust bin. Judicial flexibility often creates better justice. Narrowly crafted laws sometimes create injustice.
Bay State Rebel
While the partner helped to raise the child, she is neither a biological relative nor legal adoptive guardian, and thus has no legal authority over the child. While she did help to raise the child, this gives her no more ipso facto legal guardianship than a nanny or a mentor. Had she adopted the child, this would be a different matter, but unless I misread the article, the formal custody was fully with the other. While this case may be compelling reason for common law guardianship legislation, this legislation does not as yet exist.

Several of you are viewing this as an issue of gay rights and the legal recognition of same-gender couples. To these people, it doubtless seems callous of me to compare the woman to a nanny or mentor, but the fact that she was in a relationship with the mother, no matter what the nature of the relationship, does not give her guardianship. I am uncertain whether even being legally married would be sufficient to give her guardianship; I know too little of California family law. Regardless, because California is not a state with marriage equality, the point is moot.

As such, the question is not whether she should be considered a parent, but a legal guardian of the child. In the absence of a provision of federal or state law (to my knowledge) giving her such guardianship, she has none; whether she should is academic.
overlandsailor


How should the CA court decide? Should a same-sex partner of a biological mother be given the same rights as a "parent"?

I am curious to know how the courts would handle such a case if the non-biological partner had filed for formal adoption?

In some states this might not be an option for a same-sex couple as the adoption might be denied by the state due to the sexual-persuasion of the perspective adopter (Which I think is ridiculous, someone wants to take responsibility for a child and we deny the child a legitimate parent simply because we don't like the sex of the consenting adult(s) they sleep with?).

Would it have been an option for the partner in any of these cases to have filed for adoption?

If this would have been an option in California, then the partners had the ability to have their parental rights legally recognized yet did not do it. As a result they are behind the eight ball in the custody case.

This happens to hetero couples all the time as well. The default for the courts is always biology when it comes to parental rights. We have all read the cases over the years of horrible parents winning custody cases because of biology alone. This issue is no different.

To address this issue (outside of legalizing Gay Marriage, which should be done), the courts need to address any discrimination issues that might exist in terms of legal adoptions.

If no legal barriers to adoption exist currently, and the people now finding it difficult to secure parental recognition did not make the attempt to legal adopt the child(ren), the the responsible party for the problems they face now is themselves.
KivrotHaTaavah
A biological parent has a fundamental liberty interest in the care, companionship, control, and custody of her or his child that she or he shares with no one else save the other biological parent. See, Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972).

Re the so-called "psychological parent," In the Matter of Baby Girl L., 51 P.2d 544, 557-558 (Okla. 2002), the court reported:

“We caution to note that merely showing on remand that the child has a strong relationship with the adoptive parents or might be better off if left in their custody based on some type of comparative fitness or balancing is not enough to show serious psychological harm. [citation omitted] Our ruling here should not be interpreted as giving judicial imprimatur to some form of subtle social engineering in custody cases involving third parties and we are not sanctioning the reallocation of children merely because putative adoptive parents might be ‘better’ parents than a biological father. Ultimately, the standard adopted today, based on constitutional considerations and on legislative authorization, has as its benchmark the welfare of the child while at the same time protecting the rights of biological parents. [citation omitted] Simply, the standard to be applied on remand is not one of comparative fitness nor is it one that may be used to victimize poor (or otherwise arguably disadvantaged) biological parents on the basis of some well-meaning, but misguided, view that certain adoptive custodians might possibly be ‘better’ parents than the child’s biological parents. [citation omitted] Furthermore, although the phrase serious psychological harm may not lend itself to precise definition, a general definition is that it is both serious and enduring psychological harm [citation omitted], grave psychological trauma that would drastically affect the welfare of the child [citation omitted]. In other words, it is severe and long-term emotional or psychological trauma, not merely separation anxiety of either minimal impact, or that would likely last for only a relatively short period of time. The standard we adopt is not that a change in custody cause no psychological pain or trauma, but serious, extensive and lasting harm. [emphasis in original]
*****
Without a showing of serious psychological harm, as above defined, the New York Court of Appeals has aptly stated our view of the rights biological parents have to the care, custody and rearing of their biological offspring: [‘]In all of this troublesome and troubled area there is a fundamental principle. Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless circumstances are compelling. Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children.”
azchurchmouse
QUOTE
Amlord said, "If you look at the biology of the situation, the lesbian partner is not a biological parent. In this instance, the partner helped raise the child, but is that enough to qualify as a parent?


Many parents in heterosexual relationships aren't the biological parent. But the law holds them to everything a biological parent is held to.
To qualify to be a parent do you have to be the biological one? So all parents of adopted kids, and stepkids, aren't parents?


QUOTE
Let's take an analogous situation: A girl who is pregnant wants nothing to do with the father of the baby. Or, let's say she is artificially inseminated. Should her new boyfriend be required to pay child support if he helped raise the child? Should he have visitation rights?


If they were not married then I would think the courts would say no he is not liable, nor would he be able to have visitations even if he helped raise the child.


Take this analogous situation:
Girl gets pregnant. Her boyfriend is happy about the baby, she however is not. She decides to abort. (she aborts a child with her DNA and his)
She says, "I don't care, its my body to do with as I please."
Court says she can do it. His DNA is not important.

Girl gets pregnant. Boyfriend is NOT happy one bit, and wants her to abort. She does not and has the child. It's after all her body, she calls the shots. Guy fights for his child, courts says hey its her body you have no rights.

The government by allowing woman to abort says that the fathers DNA is nothing. Should they be able to turn around and make this guy pay child support when he did not want the baby to begin with?

Should she be able to force him to pay child support?

The male is taken out of the equation in both circumstances. He has no choice. He doesn't have a chance or choice in either case.

Our laws in this country are horrible and quite frankly I think are unfair to men in this child custody issue and abortion.

My brother in law was once married to a woman and had three kids. His name appear on all three birth certificates.
He found out a few years ago that his two younger children were not his. He heard rumors and had DNA testing done. It was horrific, devastating to the children and to him. At the time the children were 15, 13, and 8.
The biological father had been a part of the kids life from the get-go and they called him "uncle".
It was hell for everyone. The mother was so furious that he did the testing she turned the two against him. His daughter came around and is in his life.
The youngest hates him and refused to see him.

He went to court to fight to be able to see his son. The court ruled, he had to continue paying child support until the boy reached 18 and that the boy did not have to go because his father was involved in his life. They felt it would be to confusing for him.
My brother in law still has to pay. Pay for a son he cant see. His heart is broken. Even though this boy is not biologically his, his love is like that of a real fathers.
Did the courts do what was in the best interest of this child?



















Vibiana
A lesbian couple -- or a gay male couple, for that matter -- who have raised a child together should be treated the same as a heterosexual couple when it comes to custody issues. If the child has bonded with a non-biological parent, that child should not be separated from that parent's affection and support (unless the non-bio parent has proven to be abusive or neglectful).

I don't think this can be compared to a nanny or a teacher demanding visitation. A child knows the difference between his teacher and his parent.

The only thing that matters here is whether an innocent child's family should be completely ripped apart by the letter of the law, rather than preserved as much as possible for his/her sake. It's a shame that these two women, who probably went to considerable effort and expense to conceive a child, are now putting that child's security at risk by divorcing.
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