California, US: Gay parents gain key custody rights - SJ Mercury News

Posted on Tue, Aug. 23, 2005
Gay parents gain key custody rights
HIGH COURT RULINGS FAVOR EQUAL PROTECTION
By Howard Mintz
San Jose Mercury News

Establishing unprecedented new legal protections for gay partners in custody battles, the California Supreme Court has for the second time this month put same-sex relationships on equal footing with married couples when it comes to issues such as raising children.

In three separate rulings, the Supreme Court on Monday concluded that lesbians who agree to raise children borne by their partners can be considered legal parents after their relationship ends with the biological mother. All three cases involved mothers who bore children through some form of artificial reproduction from sperm or egg donors.

The rulings strengthened the custody rights of non-biological parents in same-sex unions and clarified the uncertain legal landscape for thousands of gay couples across California who decide to have children. The rulings also were the latest evidence that the state's top court is receptive to the equal protection arguments of gay and lesbian couples, a factor being watched closely as the legal battle over gay marriage moves forward in the lower courts.

The Supreme Court earlier this month gave considerable legal backing to California's new domestic partners law, ruling in a San Diego case that the law gives gay partners the same protections as married couples in terms of how they are treated by businesses.

Now, the high court has extended that principle to custody feuds like one unfolding in Santa Clara County for Linda Hulberg, a Morgan Hill woman who has been seeking parental rights for two years from her former partner. Hulberg was in a three-year relationship with a woman who bore twin boys, and acted as a co-parent until their 2003 breakup, according to court papers.

Hulberg was not involved in Monday's rulings, but she has been waiting for the Supreme Court to decide the three cases while her bid to gain parent status is on hold in family court.

``I'm hoping these decisions make it a no-brainer,'' said Hulberg, a mortgage consultant. ``I should be a part of their lives."

It's not about gender, ``it's about responsibility,'' she said.

Conservative groups object

The rulings immediately drew criticism from conservative groups, who believe they will help energize proposed ballot measures aimed at restricting marriage to a man and a woman and dismantling the state's new domestic partners law.

``Today's ruling defies logic and common sense,'' said Mathew Staver, president and general counsel of Liberty Counsel, which intervened in the state Supreme Court cases. ``By saying that children can have two moms, the court has undermined the family.''

In the three cases decided Monday, the justices, despite different factual scenarios, determined that a non-biological partner enjoys parent status if they take part in the decision to have children and then play the clear, full-time role of a parent along with the biological mother.

The Supreme Court applied past decisions involving heterosexuals who conceive children through artificial reproductive science, as well as other areas of family law once reserved for mothers and fathers. In one case, the justices held that child support laws that punish deadbeat dads apply equally to estranged lesbian partners who had agreed to raise children together.

In that case, the justices held that a lesbian partner who agreed to raise twins is obligated to pay child support like any parent after a breakup. California Attorney General Bill Lockyer intervened on behalf of Emily B. in her effort to get child support in El Dorado County from her ex-partner, Elisa B.

``Today is an incredible day to be a parent in the state of California,'' Emily said after the ruling.

No bias vs. same-sex couples

In a second case out of Marin County, the court found that a woman who supplied her eggs to her partner and helped raise the child is considered a parent under the law. The court, by a 4-2 vote, said the situation was different than sperm and egg donors who do not establish a parent role with the biological mother.

``We perceive no reason why both parents of a child cannot be women,'' Justice Carlos Moreno wrote.

Justices Kathryn Mickle Werdegar and Joyce Kennard disagreed. Werdegar warned that the ruling would produce unpredictable results for custody fights around the state, and that it diminishes the birth mother's rights.

Diana Richmond, the lawyer for E.G., the birth mother in the Marin case, said the ruling could leave sperm and egg donors who do not want parent status vulnerable. However, Richmond added that all three rulings suggest the Supreme Court could prove open to arguments that California's gay marriage ban is unconstitutional.

``It is a court that appears to be free of bias against same-sex couples,'' Richmond said.

The third case was decided on more limited grounds. In that ruling, the justices found that a lesbian mother could not break a pre-birth agreement with her partner to share parental rights.

Courtney Joslin, an attorney with the National Center for Lesbian Rights who represented Emily B. in the El Dorado case, said the Supreme Court sent a clear message that gay couples should be treated the same as heterosexuals.

``Both members of a couple can be a child's parents,'' Joslin said.

Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.


California, US: Court Affirms Gay Couples' Parental Status - LA Times