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

Removal of sexual orientation doesn’t stop bigots — or the ACLU — from opposing anti-bullying bill

Jonathan Saenz

The removal of sexual orientation from an anti-bullying bill didn’t stop anti-gay groups from opposing the measure during a Texas House committee hearing on Tuesday afternoon.

Jonathan Saenz, director of legislative affiars for the Plano-based Liberty Institute, told the House public education committee that even though sexual orientation and other enumerated categories were removed from Rep. Mark Strama’s HB 224, Saenz fears the categories will be restored to the measure at some point.

“It is about the gay rights, the homosexual community, the transgender community, and an effort to create special categories and special rights in our law that don’t currently exist, and really carve off protections for some groups and not others,” Saenz told the committee. “It’s not about bullying, and it’s not about solving this problem. It’s about creating new classes of people and giving special protections to some categories and not others.”

Strama said during the hearing that he has no plans to restore the enumerated categories to the bill.

“We took all those classes out so we wouldn’t have to have this discusssion,” said Strama, D-Austin. “It’s not my intention to put any of that list back in the bill. At this point I’d like to keep it the way it is if we can get this bill moving through the process.”

Representatives from Equality Texas, which supports the bill and testified in favor of it on Tuesday, have said the enumerated categories were removed to improve the bill’s chances of passage and de-politicize the issue.

Also testifying against Strama’s bill were both the anti-gay Texas Eagle Forum and the normally pro-equality American Civil Liberties Union.

ACLU representatives say Strama’s bill, which would allow school officials to crack down on cyberbullying that occurs off campus, creates concerns about free speech and parental rights.

The bill was left pending in the education committee. To watch video of the committee hearing, go here.

—  John Wright

After losing bitter custody battle, lesbian mother Debie Hackett of Dallas takes her own life

Debie Hackett with her son, from her Facebook page

Another suicide in the LGBT community this week showed that bullying isn’t the only reason people take their own lives.

Last July, I wrote about Debie Hackett, who was fighting with her former partner for visitation rights with their son. An appeals court gave her the right to assert her parental rights and sue for visitation and the case was remanded to the lower court. When I spoke to her, she was hopeful that she would be able to see her son soon.

This month she lost her case.

Despondent, Hackett took her own life on Christmas Eve.

Could interpretation of laws to discount a same-sex relationship be the underlying cause of this needless death?

A friend of Hackett’s sent me an e-mail to let me know what had happened and asked that as a tribute I post suicide-prevention information.

Local counselor Candy Marcum said that, surprisingly, December is not necessarily the worst month for suicide. In Hackett’s case, the loss in court combined with loneliness on the holiday must have been too much for her.

Grieving friends and family can only wonder if there was something more they could have done. Marcum said the warning signs are not always apparent and counsels those grieving not to blame themselves.

Ann Haas of the American Foundation for Suicide Prevention specializes in prevention in the LGBT community. In a November article, she listed a number of warning signs for suicide. To read them, go here.

—  David Taffet

N.C. high court voids lesbian lawmaker’s 2nd-parent adoption

GARY D. ROBERTSON | Associated Press

RALEIGH, N.C. — North Carolina’s highest court on Monday, Dec. 20 voided a state senator’s adoption of her former domestic partner’s biological son, a move that appears to close a method for same-sex couples to adopt unless the Legislature steps in.

The state Supreme Court ruled 5-2 that the adoption of Melissa Jarrell’s son by state Sen. Julia Boseman was invalid because a Durham County District Court judge waived a requirement five years ago that Jarrell had to give up her parental rights in the process.

Under the adoption plan approved by the lower court, Boseman became an adoptive parent while Jarrell retained full parental rights as well.

However, Associate Justice Paul Newby wrote for the majority that the adoption never occurred in the eyes of the law because lawmakers have made clear the biological parent must terminate a legal relationship with the child. That part of the ruling favored Jarrell, who had sued to negate the adoption after the couple separated.

She and Boseman, North Carolina’s first openly gay member of the General Assembly, had been living together when Jarrell gave birth to Jacob in 2002.

The majority of justices let stand another lower court ruling allowing the two to have joint custody of the child, saying it would be in Jacob’s best interest for the women, who have been sharing parental responsibilities, to rear him.

Still, the ruling eliminates a method for same-sex couples to adopt and could raise legal questions about so-called “second parent” adoptions like this one. They have been granted in Durham and Orange counties in recent years, according to testimony and court documents.

“If our uniform court system is to be preserved, a new form of adoption cannot be made available in some counties but not all,” Newby wrote.

For such two-parent adoptions to occur by parents of the same gender — granting inheritance and other rights to the child — same-sex marriage would have to be created in North Carolina or the adoption law would have to be changed, said Michelle Connell, a Winston-Salem lawyer and chairwoman of the family law section of the North Carolina Bar Association.

Several Christian groups filed briefs arguing the adoption was illegal, while law professors and the American Civil Liberties Union urged the court to uphold Boseman’s adoption to ensure the child and others in similar situations would be in stable family environments.

Those issues are best addressed at the General Assembly, Newby wrote. At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign, a national group that works for lesbian, gay, bisexual and transgender equality.

“The avenue is going to have to be changing the statute,” Connell said in an interview. Otherwise, she said, this ruling closes down the method completely. Republicans taking charge of the Legislature next month are considering whether to vote on a constitutional amendment that would prohibit gay marriage.

Associate Justice Patricia Timmons-Goodson wrote in a dissenting opinion that Jarrell was barred from challenging the decree because she missed deadlines to do so. In a separate opinion, Associate Justice Robin Hudson said there was no explicit prohibition against or permission for a waiver like the one Jarrell received.

“The majority overlooks the interests of this child and promotes (Jarrell’s) rights over those of the child, in direct contravention of the law as written,” Hudson wrote in arguing for a Court of Appeals ruling earlier this year upholding the adoption.

Jarrell attorney Leslie Fritscher said her client was pleased with the adoption being voided but was still reviewing the ruling granting joint custody.

Lawyer Jim Lea, representing Boseman, said the senator is pleased that she will remain part of Jacob’s life but is unhappy with the adoption decision. “If you have two loving parents that want to adopt a child … one should not be forced to comply with North Carolina statute by terminating parental rights,” he said.

Boseman, a Democrat from Wilmington, was first elected to the Legislature in 2004. She didn’t seek re-election this year and leaves office at the end of this month.

—  John Wright

Lesbian mother wins first fight in custody battle

Judge’s ruling gives Debie Hackett standing to fight for visitation with son from previous relationship

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Dallas District Judge David Hanschen ruled in June that a non-biological mother could assert her right to pursue visitation with and access to a child she raised since birth.

Kim Ferris, the biological mother, argued that Texas law prohibits the non-biological parent from seeking the right of visitation.
She and former partner Debie Hackett decided together to conceive a child with donated sperm and raised and cared for the child together.

Hanschen’s ruling was one simple sentence.

“After reviewing the pleadings of counsel, relevant case law, and my own hearing notes, the court denies Kimberley Ferris’ plea to jurisdiction in the above referenced cause,” he wrote to the three attorneys involved.

The ruling did not grant visitation, but denied Ferris’ move to dismiss the case and allowed Hackett to continue her pursuit of parental rights.

Hackett said she knew Ferris for 10 years and they had been in a relationship since 2007. They discussed having children early in their relationship and decided Ferris would have a child first, based on her age, Hackett said.

Ferris conceived with sperm donated by Carlos Rojas, a gay man who both women had known for seven years.

The women’s relationship ended in November 2009. “When Oliver was 11 months old, she asked me to leave,” Hackett said. Hackett moved out of the house and said she gave Ferris 30 days “to come to her senses.” After the women broke up, Ferris filed to change the child’s name from Hackett-Ferris.

After reading a story in Dallas Voice in December about a court decision in favor of Kristie Vowels, a non-biological mother, Hackett retained legal counsel.

Attorney Jonathan Winacour, who represents Hackett, said Texas law gives a non-custodial parent that has cared for a child for at least six months just 90 days to file a motion.

Ferris and Rojas retained separate attorneys in the case, but neither returned calls from Dallas Voice.

Before the child’s birth, Ferris wrote that she wanted Hackett to have “all the rights and responsibilities available in the state of Texas as a parent.”

The hearing established that Hackett shared full duties as a parent. To prove her involvement, she produced records that showed she paid for clothing, food, diapers, development classes and health care.

Their pediatrician testified that she understood that Hackett had medical decision-making power.

Winocour emphasizes that this case is not about establishing same-sex marriage, but simply about what is best for the child.

In his arguments, Winocour made the case that the father is not a legal resident and is less likely to be able to maintain a residence within 100 miles. The father’s paternity was not established for a year and was not on the birth certificate until after Hackett and Ferris broke up.

Winocour said that waiting a year is grounds for establishing abandonment in Texas.

Hackett said she is not trying to prevent Rojas from participating in raising the child. She simply wants standard visitation rights. She said she is in the best position to provide health insurance and has a stable home and income to benefit her son.

“The three of us made a contract to bring a child into this world. I’m not going away. This is my son,” Hackett said.

On Wednesday, July 14, Winocour filed a motion seeking an order compelling mediation in advance of a hearing on temporary orders. All sides would be required to appear before a mediator.

If mediation were successful, Hanschen’s court would presumably instate those orders. If not, the case would return to his court for further hearing.

This article appeared in the Dallas Voice print edition July 16, 2010.

—  Kevin Thomas