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Legal recognition of LGBT parents shifts state-by-state
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LGBT parents have no guarantee of their legal status as they travel around the country.
A heterosexual couple who adopted three children together in the state of Illinois moved to Michigan several years later. As often happens, things ended and the couple went to court to determine custody of their children. To their surprise, the court determined that neither the man nor woman is considered the legal parent since Michigan has different adoption laws than Illinois, so the court refused to even hear the case. What should have been a straight forward custody case escalated into a protracted legal battle that needed to be decided by the Michigan State Court of Appeals.
In Mississippi, the state Supreme Court ruled that it was in the best interest of a 15 year-old boy that his mother have sole custody, even though her new husband has a history of violence and substance abuse and has beaten the boy’s mother in front of him. The reason the boy’s father was not granted custody is because his new girlfriend is black. The court did however over rule a lower court’s ruling that during visitations, the father’s girlfriend could not be present and would have to leave the home that they owned together.
Thanks to the federal Constitution’s full faith and credit clause, the Michigan situation did not happen to a heterosexual married couple. The hypothetical couple could move about the country without a second thought as to their rightful place as parents of those three children. But thanks to the lack of nationwide recognition of adoption rights for its LGBT citizens, and same-sex relationships in general, the above situation did recently happen to a lesbian couple, Diane Giancaspro and Lisa Ann Congleton.
Illinois has second-parent adoption laws, which among other things allows unmarried couples, straight or gay, to adopt. Since Michigan does not have parallel laws, the lower courts determined that the legality of the couple’s status as parents was itself in question and so they could not apply the state’s custody laws in this case. For good measure, they also cited the state’s anti-same-sex marriage Constitutional Amendment as a road block. It was determined that even if they did acknowledge maternal rights they could not recognize the couple’s relationship. Thus all precedence set by custody based on divorce cases would not apply to a couple that not only was never married, but could not even be considered akin to married. The courts questioned whether either parent even had the legal authority to care for their children, to carry out essential parental duties such as authorizing medical treatment, enrolling them in school or even claiming them from the police station if they were reported missing.
In February 2009, the Michigan State Court of Appeals determined that the well being of the children (and common sense) supersedes all other considerations, and the courts must rule on the case as if it were any other divorcing couple attempting to settle custody.
Similar confusion abounds across the country. Lisa Miller and Janet Jenkins were registered under Vermont's civil union laws. They split up and Ms. Miller, the biological mother, fled to Virginia with their daughter. She then attempted to block her ex from custody or even visitation. Since Virginia does not recognize Vermont’s civil unions, and is also among the states with an anti-gay Constitutional Amendment, once again the very validity of the couple’s relationship was called into question. If they had been able to marry, and have that marriage recognized across state lines, Ms. Jenkins would have been considered if not an equal parent under the law, then at the very least a step-parent and so covered by any laws pertaining to that designation. The Virginia Supreme Court eventually determined that the case was best handled by Vermont, which ruled that Ms. Jenkins receive visitation. (please see end of article for updates on this case).
Meanwhile, the second scenario presented at the top of this article is also a true case with one twist on the facts; the black girlfriend of the father is really his male partner. All other facts remain the same. In 1997 David Weigand sued for custody of his son after the boy witnessed repeated beatings of his mother by her new husband. In a 6-3 ruling, the Mississippi Supreme Court determined that the father’s sexual orientation was a far greater threat to the well being of the boy than it was watching his mother violently abused, and being at risk of being himself assaulted.
Another child custody case that took place in Virginia involved Sharon Bottoms whose own mother sued for, and won, custody of Ms. Bottoms' son Tyler. The case began in 1993 when a Henrico County court judged Ms. Bottoms an unfit mother based solely on her sexual orientation. Her mother, Pamela Kay Bottoms, was awarded custody of 20-month old Tyler. An appeals court later overturned that ruling, but the Virginia State Supreme Court later reinstated the Henrico County ruling. Ms. Bottoms was granted limited visitation rights, and as with David Weigand and his partner in Mississippi, Ms. Bottoms' partner April Wade was forbidden from being present. The precedent set by this case is frightening to any parent who is LGBT; the state has determined that at almost anytime a child can be taken away based solely on a parent's sexual orientation.
All cultures consider family an institution of such profound importance that intricate legal and social structures have been erected to support it. And yet here in the United States we have weakened that support by relegating family to a state-level matter. It seems illogical that a family is only a family with-in one state’s borders, regardless that the individual family members are U.S. citizens no matter where they travel. The Constitution’s full faith and credit clause is only enough of a loophole to compensate for this weakness if we focus more on form (father/husband, mother/wife, 2.2 kids, regardless of results) over function (competent parent(s), healthy thriving children, regardless of parents’ relationship, gender, sexual orientation, etc) .
This column offers just a snapshot of the holes in our current legal support structures. Due to the patchwork application of laws covering - or not covering - their relationships and their status as parents, LGBT families are the primary victims falling through these holes.
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Update regarding the Miller v Jenkins custody battle, November 22, 2009: Last week a Rutland Vermont Family Court Judge shocked all those closely following this case by ruling that Ms. Jenkins be awarded full custody of their daughter. Judge William Cohen has determined that, where Ms. Jenkins has been willing to share custody and compromise during the protracted legal battles, Ms. Miller has repeatedly ignored court ordered visitation rights awarded to Ms. Jenkins. Since Ms. Miller has shown such disregard for her daughter's relationship with her other mother, she can not be trusted with custody.
You can read a more detailed timeline on this case at lezgetreal.com.
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