How Does the Law Decide What Is and Isn’t a Family? - Pacific Standard

How Does the Law Decide What Is and Isn’t a Family?

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A parental rights dispute between two women in Massachusetts is forcing the state to decide what it means to be a family in modern America.

By Kate Wheeling

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(Photo: Jamiecat/Flickr)

The outcome of a parental rights dispute between two women in Massachusetts could potentially affect not just the LGBT community, but all modern families across the state.

The Massachusetts Supreme Judicial Court is reviewing the case of Karen Partanen, who is petitioning to be legally recognized as a parent to the kids she raised with her former partner, Julie Gallagher. The couple was never married, but raised together two children — now four and seven — who were conceived through artificial insemination and carried by Gallagher. After the couple ended their 13-year relationship, Partanen wanted to ensure that she was held in equal parental standing with the children’s birthmother.

Gallagher, however, protested this parity. While she still wants Partanen to have a relationship with the kids, she does not want to share decisions about the children’s health, education, and well-being with her former partner, who is not on the kids’ birth certificates and never officially adopted either child. Gay rights advocates have since taken up Partanen’s cause, and she’s found legal representation through the GLBTQ Legal Advocates & Defenders.

Gallagher has expressed concern that her former partner is using GLAAD to go above and beyond what’s legally permissible. “What’s at issue here is my client’s legal rights as the only mother,” Gallagher’s lawyer, Jennifer Lamanna, told the state court, according to a report from the Boston Globe. “What [Partanen] seeks in this case is a path to parenthood that doesn’t require marriage, doesn’t require adoption, doesn’t require a signed voluntary acknowledgment of parentage and, in fact, can be imposed without the consent of a parent and over the objection of a fit parent.”

Other legal experts agree that this case is not, strictly speaking, an LGBT rights case—but that doesn’t mean that Partanen shouldn’t win. “The sexual orientation and gender of the mothers is not relevant. The question is whether the unmarried partner of a legal parent, who was involved in the planning of the children’s birth and served as a parent for a long time, should be recognized as a full legal parent even if she never adopted the children,” says Carlos Ball, a law professor at Rutgers University in New York and author of Same-Sex Marriage and Children: A Tale of History, Social Science, and Law. “I think the answer to that question is yes. These were Partanen’s children from the very beginning and the law should not require her to adopt her own children before it recognizes her as a parent.”

There are many legal avenues for LGBT parents like Partanen to pursue in order to gain legal parenthood, but they have not always been widely available. Married couples who have children together are both automatically considered legal parents in the eyes of the law, even if they end their relationship. But until the Supreme Court’s 2015 ruling that gay marriage bans were unconstitutional, marriage was not an option for same-sex couples in many states across the nation. Florida, where the couple lived before moving to Massachusetts, had some of the strictest anti-LGBT laws in the country until last year, according to GLAAD, including a (recently repealed) ban on adoptions by same-sex couples. But traditional marriages have been falling out of favor for some time and families are becoming more diverse; as early as the year 2000, less than a one-quarter of all American households were traditional families headed by a married, heterosexual couple.

“If Gallagher prevails, it will negatively affect unmarried parents, including unmarried LGBT parents.”

For the rising number of couples who don’t want to get married, adoption is now another common legal route to parenthood. But the adoption rights LGBT parents enjoy today have been as hard won as marriage equality. It wasn’t until the 1990s that states began codifying gay parents’ adoptive rights; Delaware was the first to authorize single, gay parents to adopt children in ’96, and New Jersey allowed joint adoptions by gay couples in ’97. Since then, nearly every state, including Alaska, Florida, Georgia, Louisiana, Texas, and West Virginia has granted second-parent adoptions — whereby a co-parent adopts their partner’s child without terminating the partner’s legal parenthood — to same-sex couples, regardless of their marital status. Several other states, Alabama, Kansas, and Kentucky among them, only allow second parent adoptions to married couples.

While states can and do in some cases still allow adoption agencies to favor married and straight couples over single and LGBT prospective parents, outright bans on same-sex adoptions have died out. This year, Mississippi became the last state in the nation to strike down its same-sex adoption ban.

“What we recommend, and this is industry wide, is that gay parents who are married and have children also do an adoption,” says Dorene Kuffer, a New Mexico attorney and member of the National LGBT Bar Association’s Family Law Institute. “It’s like wearing a belt and suspenders.”

But adoptions can be a prohibitively expensive process. There are multiple steps to adoption, including counseling for prospective parents, home studies before and after the adoption is complete, and lengthy legal proceedings. When all is said and done, even the cheapest adoptions set families back thousands of dollars, Kuffer says.

So it’s not necessarily surprising that Partanen didn’t pursue either of these commonly used routes to legal parenthood. And there is at least some legal precedent to suggest that she could win. According to a report from the National Center for Lesbian Rights:

Appellate courts in Illinois, and a trial court in New Jersey, have held that a woman who consents to her partner’s insemination can be a legal parent, even if she is not married to the birth mother, and a few other states have statutes that explicitly provide that either a man or a woman who consents to another woman’s insemination is a legal parent, regardless of marital status, including New Mexico, Nevada, Washington, and the District of Columbia.

Some states, including Indiana, Maine, Nebraska, Pennsylvania, and Washington, have case law recognizing that a non-biological and non-adoptive parent can have all of the rights and responsibilities of parentage based on the following factors: her acceptance of the responsibilities of parentage, living with the child, the legal parent’s fostering a parent-child relationship between the child and the non-biological and non-adoptive parent, and the existence of a bonded parent-child relationship.

By demonstrating that a person has accepted “the responsibilities of parentage” — by taking kids to doctors appointments, signing permission slips for school, paying for things, and otherwise actively parenting — they usually meet a state’s requirement for parenthood set forth by the Uniform Parentage Act even without being married or adopting.

“It’s not just a gay rights issue because the Uniform Parentage Act was written before the gay rights movement started,” Kuffer says. “It’s been there all along to determine with men and women who is a dad, who is a mom, and how do you become a legal parent and get the rights and responsibilities that go along with that.”

In New Mexico, for example, the Supreme Court ruled only in 2012 that the state’s Uniform Parentage Act is gender neutral. Under Massachusetts’ Uniform Parentage Act, the years Partanen spent acting as a full parent to her two children should be enough to qualify her as a parent in the eyes of the law, despite the fact that she is not their biological parent. The question in Massachusetts now is whether the state will decide that their Uniform Parentage laws applies to same-sex couples as well.

But a win for Gallagher will have ramifications for all parents in alternative family situations, regardless of their sexual orientation. “If Gallagher prevails, it will negatively affect unmarried parents, including unmarried LGBT parents,” says Ball, the Rutgers law professor. “LGBT individuals continue to be negatively affected by rulings that fail to fully recognize the rights of [non-biological] parents.”

“In these arguments about what rights there are and who has them, we lose sight of the fact that this is about people loving children and raising children together as a family, no matter what that family looks like,” Kuffer says. “Families today just look so different than they looked back in the fifties. And our law has to catch up with that, and recognize that parentage isn’t just about biology, it isn’t about the law. It’s about the children and what they need.”

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