Groups hope couples, lawyers will take the parenting pledge

New guidelines for same-sex parenting and custody aimed at stopping LGBTs from denying parental rights to ex-partners

Mary-Bonauto
GLAD’S MARY BONAUTO | (Photo courtesy InfinityPortraitDesign.com)

Dana Rudolph  |  Keen News Service
lisakeen@me.com

Some of the most contentious lawsuits involving the rights of LGBT people have occurred when the biological parent of a child uses anti-LGBT laws to try and deny the child’s non-biological parent custody or visitation.

But several LGBT legal organizations have published a revised set of standards aimed at stopping such behavior, and they’re hoping parents and attorneys will take a pledge to abide by them.

The publication is “Protecting Families: Standards for LGBT Families,” produced by Gay and Lesbian Advocates and Defenders, the National Center for Lesbian Rights and NCLR’s National Family Law Advisory Council. It encourages lawyers to support and respect LGBT parents even when legal rights do not, and advises parents and lawyers to honor children’s relationships with both parents, seek custody resolutions that minimize conflict, and use litigation only as a last resort.

Mary Bonauto, the director of GLAD’s Civil Rights Project, authored the original version of the standards in 1999. She said the intent of the document is to urge same-sex parents to use whatever parental protections are available in their states, “for the sake of your children.”

These protections may assist with issues such as medical decision-making, but may also help maintain both parents’ relationships with the children when the couple breaks up.

The revised document is updated to reflect new laws in several states recognizing the relationships of same-sex couples, whether through marriage, civil unions or domestic partnerships. But it cautions that same-sex parents should not rely on such laws to protect their parental relationships with their children.

“[W]e still have a huge architecture of discrimination against same-sex relationships,” said Bonauto. Many states do not recognize them at all or may not treat them in the same way as opposite-sex relationships. This may jeopardize the relationships of non-biological, non-adoptive parents to their children.

Even in Massachusetts, the first state to allow same-sex couples to marry, courts may not look favorably upon a non-biological parent who has not also done a “second-parent adoption” of a spouse’s biological child, she said.

“There are still very parent-specific protections you should try to avail yourself of,” said Bonauto.

Some protections may be available even in states that have constitutional bans against marriage for same-sex couples.

If parents do break up, Bonauto said, going to court is damaging financially and emotionally. And it can destroy the couple’s ability to work together as parents.

There have been a number of recent cases across the country in which a biological or adoptive parent has tried to claim the other parent has no parental rights. Best known among them is the case of Janet Jenkins and Lisa Miller, which has grabbed headlines nationally.

Miller, the biological mother, asked courts in both Virginia and Vermont to deny Jenkins visitation and custody, and has taken issues to the U.S. Supreme Court five times, without success each time.

Miller was eventually ruled in contempt of court for defying a Vermont court order that she allow Jenkins visitation. The court then granted legal custody to Jenkins.

But Miller went into hiding with the girl at the end of 2009, and a man accused of helping her leave the U.S. was arraigned in a federal court last April.

Many similar cases exist, and the outcomes have been mixed.

The Delaware Supreme Court issued a ruling in March upholding the right of a woman to be identified as a de facto parent of a child she had been raising with her former same-sex partner — a child the partner adopted but that the woman herself did not.

The Nebraska Supreme Court in August ruled that a non-biological mom has a right, under the doctrine of in loco parentis — which recognizes a person who acts as a parent — to a custody and visitation hearing regarding the child she and her former partner were raising together.

But the North Carolina Supreme Court in December 2010 voided a lesbian mother’s second-parent adoption. The majority on the court said state statutes permit adoptions only if the existing parent gives up all parental rights or is married to the person seeking to adopt, as in the case of a stepparent.

Other cases with biological mothers trying to deny parental rights to non-biological mothers have reached the appellate or state supreme court levels in the past few years in states including Arizona, Arkansas, California, Florida, Indiana, Kentucky, Louisiana, Minnesota, Missouri, Montana, New Mexico, New York, Ohio, Oregon, Texas, Utah and Wisconsin — again with mixed results.

In several of these cases, notably Miller v. Jenkins, attorneys from conservative legal organizations such as Liberty Counsel and the Alliance Defense Fund have represented the biological mothers.

“They are making an industry of it,” Bonauto noted of the groups. But many individual, private attorneys, including ones in the LGBT community, are also representing biological mothers against non-biological mothers in such cases.

GLAD will soon be launching an online pledge where attorneys can promise not to take these cases and to endorse the revised standards. Parents, too, can pledge to uphold them.

New Jersey attorney William Singer, a member of the Family Law Advisory Council, said he hopes attorneys will discuss the standards with parents, not just at the time of breakups, but also at the time of family creation, “to try and impress upon both parents why it’s so important to maintain continuity of relationships for their children.”

The standards are available via GLAD’s Web site, GLAD.org.

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

DOJ says DOMA justified to prevent ‘inequities’

LGBT advocates disappointed in Obama administration’s decision to defend law that he favors repealing

Lisa Keen  |  Keen News Service

The U.S. Department of Justice filed its brief Jan. 13 with a federal appeals court that will hear the government’s appeal of two district court decisions that found the Defense of Marriage Act unconstitutional.

The cases are Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, and Massachusetts v. Department of Health and Human Services, brought by the state.

DOJ, led by Assistant Attorney General Tony West, argues that U.S. District Court Judge Joseph Tauro in Boston erred last year in finding one section of the federal Defense of Marriage Act (DOMA) unconstitutional.

It also argues that “back-and-forth changes” such as those experienced by California concerning the recognition of same-sex marriages “have the potential to cause inequities in the operation of federal programs, and could result in administrative difficulties across a variety of federal programs.”

“Should [a federal] agency begin awarding benefits in response to court decisions that might later be overturned?” asks the brief. “How should the agency treat a couple who is married, then moves to a state where that marriage is not recognized? These questions highlight the administrative difficulties that federal agencies might face if federal law were automatically tied to state law in an area subject to substantial and sometimes rapid change.”

Mary Bonauto, civil rights director at GLAD, says the “touchstone is whether the marriage is valid under state law.”

“Even if a state reversed itself on marriage licensing for same-sex couples by passing an amendment, as happened in California,” said Bonauto, “that change does not affect the validity of the existing marriages.”

In response to the concern about same-sex couples moving from one state to another, said Bonauto, “The general rule is that if a couple is considered married in the state of their residence at the time they apply for a federal marital benefit, then they are married for purposes of that benefit even if they later move to a state that disrespects their marriage.”

Last July, Judge Tauro ruled, in Gill, that DOMA violates the equal protection and due process rights in the U.S. Constitution, and, in Massachusetts, that DOMA violates the 10th Amendment right to exercise control of certain state issues.

Evan Wolfson, head of the national Freedom to Marry group, said he “regrets” DOJ “continues to defend a law that President Barack Obama has repeatedly said is discriminatory.”

“Also disappointing is that the Justice Department is urging the court to give this discriminatory law a presumption of constitutionality,” said Wolfson. “The Justice Department should be asking the courts to examine DOMA with skeptical eyes, not rubberstamp discrimination.”

DOJ’s brief argues that the appeals court should use only the most minimal standard — rational basis — in scrutinizing the reasons the government gives to justify DOMA’s ban on recognition of married same-sex couples when it comes to having access to federal benefits made available to married straight couples. It then claims that the rational justifications behind DOMA are:

  • to preserve a national status quo at the federal level regarding marriage,
  • to ensure “uniform application” of federal law regarding marriage benefits, and
  • to show respect for each state’s sovereignty in developing its own policy concerning marriage.

The latter justification will probably make for an interesting discussion before a three-judge panel of the First Circuit U.S. Court of Appeals later this year. The First Circuit is located in Boston, Massachusetts, which famously became the first state to honor its state constitutional mandate of equal protection with regards to the issuance of marriage licenses.

The Massachusetts Attorney General’s office argued, in its district court brief, that DOMA is not showing respect for the sovereignty of Massachusetts.

“Instead, Congress chose to force Massachusetts (and other States) to violate the equal protection rights of its citizens or risk federal funding,” argued Massachusetts’ brief. “That is not neutrality; rather, it significantly burdens the ability of States to adopt any definition of marriage that does not match the federal one. …”

But while arguing that Congress needs to show respect for each state’s sovereignty, DOJ also argues Congress “could” reasonably conclude that a “uniform federal definition for the purposes of federal law would most consistently address variations between states that permit same-sex marriage and those that do not.”

“Without DOMA,” said DOJ, “federal benefits would vary for same-sex couples from state to state.”

Of course, that’s true for heterosexual couples, too. Only those straight couples who are married are eligible to receive federal marriage benefits. But DOJ adds that “while it may be preferable as a policy matter for Congress to have provided the same benefits to all married couples, the uniform path that Congress chose was permissible.”

The Defense of Marriage Act (DOMA) was introduced by U.S. Rep. Bob Barr (R-GA) and signed into law in 1996 by Democratic President Bill Clinton. Wolfson noted that both have since “repudiated” the law.

GLAD and the Massachusetts Attorney General’s office both filed lawsuits challenging DOMA’s Section 3, which limits the definition of marriage for federal purposes to one man and one woman.

There are three other cases challenging DOMA now in the federal courts. GLAD and the ACLU also filed two other lawsuits challenging DOMA — Pederson v. OPM in a Connecticut federal district court and Windsor v. U.S. in a New York federal district court. Both of these cases, if appealed, will come before the 2nd District U.S. Court of Appeals. Lambda Legal Defense argued its case, Karen Golinksi v. OPM, in federal district court in San Francisco last month. In that case, Lambda’s Marriage Project Director Jenny Pizer is arguing that 9th Circuit court employee Golinski should be able to obtain health coverage for her same-sex spouse the same as other federal court employees can obtain for their spouses. OPM, headed by openly gay appointee John Berry, instructed the 9th Circuit’s employee insurance carrier not to enroll Golinski’s same-sex spouse for coverage. The case is awaiting a decision from U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush.

© 2011 by Keen News Service. All rights reserved.

—  John Wright