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social sciences

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Custody Litigation  
 
page: 1  2  3  

Jones v. Boring involved Patricia Jones and Ellen Boring, who were partners for 14 years. They planned a family together and both became caregivers to their twins. After the couple separated in 2001, a Pennsylvania court found that Jones had parental rights to the children and awarded joint custody to both mothers, with primary physical custody going to Boring, the biological parent. Later, Jones filed for primary physical custody, citing Boring's history of contempt in observing the visitation schedule set by the court. The court found "convincing reasons" that being in Jones's custody would be in the best interest of the children and awarded her primary physical custody. Boring appealed the decision, contending that as the children's biological mother she could not have her children removed from her custody unless a court found her unfit. The Superior Court of Pennsylvania rejected Boring's argument and upheld the lower court's decision to grant primary physical custody to Jones.

In a historic settlement reached in Florida in 2005, a state judge granted child custody to Michael Kantaras, a stepfather in a bitter divorce case, ruling that the stepfather was legally male under Florida law, although he had been born female. The ruling, the first of its kind in the state, affirmed that Kantaras was the legal parent of his former wife's teenage son, whom he had adopted, and a daughter she conceived through artificial insemination during their marriage. The court determined that Kantaras was the better, more fit parent and that his ex-wife had tried to turn the children against him. The ruling was hailed by national gay and lesbian advocacy groups as a landmark decision in favor of transsexuals, particularly in a state that had banned same-sex marriages and barred homosexuals from adopting children.

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Adoption, Artificial Insemination, and Surrogacy Issues

Some of the most difficult legal questions involving custody issues pivot on the legal status of glbtq partners who choose to have children through adoption, artificial insemination, or surrogacy. When a same-sex couple decides to rear a child together, in most states only one of them can legally adopt. In such circumstances, the nonadoptive parent is not considered a legal parent.

Only by completing a joint or second-parent adoption can the parental rights of the other parent be protected, and only a minority of states allow joint adoption by glbtq couples. Second parent adoption (also known as Co-Parent Adoption) is a legal procedure that allows one partner of a same-sex couple to adopt the other partner's biological or adopted children without terminating the first parent's rights as a parent. Second parent adoptions give the child two legal guardians. It protects both parents by giving both of them legally recognized parental status.

Second parent adoptions often take place when a lesbian has a child through artificial insemination and her lesbian partner adopts the child as her own also. It is also sometimes used when a gay male couple has a child with the aid of a surrogate mother; although only one of the partners is the biological father of the child, both partners are legal parents.

Many couples who conceive children through artificial conception or surrogacy sign written agreements with the donors and surrogates concerning their child-rearing intentions, often limiting the donor's or surrogate's role in parenting the children. Many courts, however, have ruled that these agreements are unenforceable. In most states, courts have been unwilling to deny parental rights to known sperm donors even when they have agreed to relinquish such rights before conception.

As a result of the legalization of same-sex marriage in Massachusetts and Canada, and the adoption of Civil Unions in such states as Vermont and New Jersey, same-sex spouses in those jurisdictions are able to have both their names included on the birth certificates of children adopted or conceived by artificial insemination or surrogacy.

Resources

A number of activist legal and political organizations deserve credit for the progress that has been made in securing a fair hearing for glbtq parents in custody litigation.

The National Center for Lesbian Rights (NCLR) has been focusing on family and parenting law for over 30 years. Among the catalysts for its founding (as the Lesbian Rights Project) in 1977 was to assist lesbians who were losing custody of their children. They subsequently have led in the quest for joint adoptions. In the beginning of 2007, NCLR launched the Family Protection Project, which works to improve access to family law services for low-income same-sex parent families, with a focus on serving families of color.

New England-based Gay and Lesbian Advocates (GLAD) has also been a pioneer in ensuring equal rights for glbtq parents and families. Thanks to its advocacy, most of the New England states recognize de facto parents or permit joint adoptions or joint guardianship by glbtq couples.

Since the 1980s, Lambda Legal Defense and Education Fund has also focused on family law and same-sex marriage. Recently, they successfully challenged an Oklahoma law so extreme that it left children adopted by same-sex couples in other states orphans in the eyes of the law when their families moved to or traveled through Oklahoma.

Conclusion

Though much progress has been made throughout the country on child custody and visitation rights for gay and lesbian parents, many courts continue to deny completely a parent's rights or restrict a parent from exercising those rights in the presence of a same-sex partner. Yet, research shows that glbtq mothers and fathers have high parenting skills and that their sexual orientation has no negative impact on their children. In fact, studies demonstrate that children of lesbian and gay parents generally have positive relationships with their peers and that their relationships with adults of both sexes are also satisfactory.

Craig Kaczorowski

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   Related Entries
  
social sciences >> Overview:  Adoption

Although there are frequently social and legal barriers to overcome, adoption is an important way in which lesbian and gay male couples create families.

social sciences >> Overview:  Artificial Insemination

Artificial insemination is often used by heterosexual and single women who wish to conceive without sexual contact with males; it is frequently the method of choice when gay men create families through surrogacy or co-parenting.

social sciences >> Overview:  Census 2000

Census 2000 revealed that there were 594,391 gay male and lesbian couples in the United States, living in 99.3 percent of all U.S. counties; nearly a quarter of these couples are raising children, and these families live in 96 percent of U.S. counties.

social sciences >> Overview:  Children of GLBTQ Parents

Over three decades of research has repeatedly shown that children of glbtq parents are no different from their peers reared in heterosexual families; recently queerspawn themselves have added their own voices to the discourse.

social sciences >> Overview:  Civil Union

Vermont's Civil Union law conferred all the rights, benefits, and responsibilities of marriage on same-sex couples.

social sciences >> Overview:  Parenting

Even though glbtq people have been parents throughout history, recent political movements and advances in fertility technology have given rise to a much more visible and self-identified gay and lesbian parents.

social sciences >> Overview:  Same-Sex Marriage

Lesbian and gay couples have been fighting for the freedom to marry since the dawn of the modern glbtq struggle for equality; despite some success abroad, progress toward same-sex marriage in the United States has been slow.

social sciences >> ACLU LGBT & AIDS Project

For more than four decades, the ACLU has been at the forefront of litigation and education designed to secure glbtq rights on a variety of fronts.

social sciences >> Bonauto, Mary

American attorney Mary Bonauto, civil rights project director at Gay & Lesbian Advocates & Defenders, has won major rulings that have brought the promise of equal rights nearer to reality.

social sciences >> Gay & Lesbian Advocates & Defenders (GLAD)

New England's leading legal organization dedicated to equal justice for glbtq individuals and families, Gay & Lesbian Advocates & Defenders (GLAD) provides litigation, advocacy, and educational work in all areas of glbtq civil rights.

social sciences >> National Center for Lesbian Rights

Founded in 1977 as the Lesbian Rights Project, the National Center for Lesbian Rights is a public interest law firm committed to advancing the civil and human rights of glbtq people through litigation, advocacy, and education.


    Bibliography
   

Bowe, John. "Gay Donor or Gay Dad?" The New York Times Magazine (November 19, 2006): http://www.nytimes.com/2006/11/19/magazine/19fathering.html?_r=1&oref=slogin

Egelko, Bob. "Court Grants Equal Rights to Same-sex Parents." San Francisco Chronicle (August 23, 2005): http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/08/23/MNG66EBQ611.DTL

Gay & Lesbian Advocates & Defenders (GLAD): www.glad.org

Hawkins, Asher. "Justices Let Stand Grant of Custody to Nonbiological Lesbian Mother." The Legal Intelligencer (December 1, 2006): find.galegroup.com/itx/start.do?proId=ITOF

Lambda Legal: www.lambdalegal.org

National Center for Lesbian Rights (NCLR): www.nclrights.org

Polikoff, Nancy D. "Custody Litigation." Lesbian Histories and Cultures: An Encyclopedia. Bonnie Zimmerman, ed. New York: Garland, 2000. 218-220.

_____. "Raising Children: Lesbian and Gay Parents Face the Public and the Courts." Creating Change: Sexuality, Public Policy, and Civil Rights. John D'Emilio, William B. Turner, and Urvashi Vaid, eds. New York: St. Martin's Press, 2000.

 

    Citation Information
         
    Author: Kaczorowski, Craig  
    Entry Title: Custody Litigation  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
 
    Publication Date: 2007  
    Date Last Updated November 29, 2007  
    Web Address www.glbtq.com/social-sciences/custody_litigation.html  
    Publisher glbtq, Inc.
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Chicago, IL   60607
 
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    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2007 glbtq, Inc.  
 

 

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