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

Equality Texas issues action alert on bullying

As school gets under way and Equality Texas gears up for the 2011 legislative session, the statewide gay-rights organization is calling on members to contact their representatives and ask them to support LGBT-inclusive anti-bullying legislation. From the Action Alert:

Under current law, students are not specifically protected from bullying and harassment based on actual or perceived sexual orientation or gender identity/expression. Current law does not establish a uniform state school conduct policy and does not provide for monitoring or enforcement of independent school district policies.

For the third legislative session, Equality Texas will be working to pass safe schools legislation. It will not pass until lawmakers know it is a top priority for their constituents. During the 81st Legislative Session, Rep. Mark Strama filed a bill relating to safe schools for all youth. While it was voted favorably out of committee, it died on the the floor of the Texas House of Representatives. Will this be the session to finally pass a safe schools bill?

As of this morning, Equality Texas reported that only 68 of 150 representatives had been contacted via the online advocacy campaign. To contact your representative, go here.

Also, while perusing the Equality Texas website, we couldn’t help but notice another recent advocacy campaign that we’d somehow missed in the wake of the Prop 8 ruling. It’s a fundraising letter from Equality Texas that calls attention to the need for advocacy right here at home and, to illustrate the point, highlights some differences between Texas and California:

TEXAS
•    No form of statewide relationship recognition for same-sex couples.
•    Allows employers to legally discriminate against LGBT Texans.
•    Does not have a safe schools law that explicitly addresses sexual orientation and gender identity.
•    Does not permit a same-sex partner to make a medical decision on behalf of his/her incapacitated partner in the absence of an advance directive.
•    No clear adoption laws. Courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation.
•    Hate crimes law explicitly includes “sexual preference.” No provision of Texas law explicitly addresses gender identity.

CALIFORNIA
•    Allows same-sex domestic partners to register and to receive essentially all of the rights and benefits of married couples under state law.
•    Prohibits discrimination based on sexual orientation, gender identity, appearance and behavior in the areas of employment (public and private), housing and public accommodations.
•    Protects students from discrimination and hate violence on the basis of gender identity and sexual orientation.
•    Allows same-sex domestic partners to make decisions on behalf of an incapacitated partner. Domestic partners and their children are specifically granted hospital visitation rights.
•    Permits a same-sex couple to jointly petition to adopt.
•    Hate crime law covers sexual orientation and gender identity.

—  John Wright