THE BATTLE TO BE A PARENT.

Recognizing the rights of gay and lesbian parents is the latest frontier for equality

When 10-year-old Miguel Washington was born, his mother, a mentally disabled woman living in an assisted-care facility, was unable to care for him. His father's whereabouts were unknown. When he was just 8 days old, Miguel was sent to live with his uncle, Paul Washington Jr., a single gay man.

"When my father [Paul Washington Sr.] called and told me my sister had given birth to Miguel," recalls Washington Jr., "I immediately offered to take him in. The fact that I'm gay has always been a bit of an issue with my family, but at the time and in this situation, it didn't seem to be a problem."

For almost 10 years, Washington Jr. raised his nephew in Cathedral City, Calif., without any problems. Helping him was Timothy Forrester, a special-education teacher whom Washington Jr. met and fell in love with when Miguel was 18 months old.

Then on October 6, 2000, Miguel left for an overnight fishing trip with his grandfather and didn't come home. The following day Washington Jr. and Forrester received a letter from a Los Angeles law firm representing the elder Washington. The letter informed the couple that Miguel had been removed from their custody and cited Miguel's participation in ballet and a "gay art class" as evidence that the two men were "actively promoting or influencing a gay lifestyle for the minor." Though Washington Jr. and Forrester had cared for Miguel all his life, suddenly their ability to parent was being called into question because of prejudice within their own family.

Though the circumstances of Miguel's case are exceptional, custody battles and fights over visitation rights have become increasingly common for gay and lesbian families in the wake of the late-'90s gay baby boom. "We've been involved with hundreds of these cases in the past year," says Patricia Logue, senior counsel for Lambda Legal Defense and Education Fund, a gay legal group. "And for every case we actually attach our name to, there are a hundred others we're assisting in some way."

The cases are the latest legal frontier for gays and lesbians. Twenty years ago, says Kate Kendell, executive director of the National Center for Lesbian Rights, gay parents were typically involved in custody hearings or visitation disputes only after coming out of heterosexual relationships.

"At that time gay men and lesbians were routinely denied custody of the children they helped raise," Kendell explains. "However, in the last 10 years there has been a significant decrease in these kinds of cases. Not only have the parents who've fought these custody battles helped effect change, but also the sheer number of children affected and the growing level of public awareness have all combined to assure that, in most cases, sexual orientation is not an issue."

According to Lambda, there are as many as 10 million gay and lesbian parents in the United States, mothers and fathers to as many as 14 million children. But because gay parents are not always biological parents, their rights are not universally protected, and laws and legal precedents regarding custody issues vary widely from state to state.

"Sexual orientation in and of itself is less a factor in some courts and still a major factor in others," says Logue. "In some parts of the country, courts are still questioning whether gay men and lesbians are fit to raise children or whether they should be allowed visitation rights. But when the focus is on the actual family--the actual nurturing and parenting--we're able to put the reality before the myth and are often successful in securing our rights."

That is the challenge the younger Washington is currently facing. He has had to establish that he is indeed Miguel's parent, because the bond was never legally established. Soon after he began caring for his nephew, Washington Jr., now 50, contacted Los Angeles County Child Protective Services to inquire about securing legal custody of Miguel. He received a letter from the agency indicating that the proposed arrangements for Miguel, agreed on by his family, seemed to be in order and that a custody hearing would be set up. But, Washington Jr. says, the agency never followed through.

He had cause to reconsider the issue a few years later. "About five years ago, my father and his wife sat me down and expressed concerns," he says. "But their concerns were purely based in homophobia They said Miguel needed to be raised around women, that [Tim and I] should not be physically demonstrative in front of him--that we needed to `give Miguel's heterosexuality a chance.'" The conversation prompted him and Forrester to further investigate how they might establish legal custody of Miguel, perhaps even adopt him.

"But it was so expensive," recalls Washington Jr. "The attorney we spoke with mentioned that we might lose Miguel in the process, which terrified us. Things seemed OK as they were--people called us the `gay poster family of the desert'--and the legal costs would have altered our lifestyle in a way that would have been detrimental to Miguel, so we decided not to pursue it."

But when Miguel was removed from the couple's care by his grandfather last October, Washington Jr. and Forrester realized how tenuous their rights to custody really were. Authorities were unable to determine who had legal custody of the boy, although he had lived with his uncle and his uncle's partner virtually all of his life. Washington Jr. and Forrester were forced to go to court to obtain temporary custody of the child they'd raised as their own. In a landmark decision on October 9, the court granted joint temporary custody of Miguel to Washington Jr. and Forrester, legitimizing their family unit. Washington Sr., however, immediately sought to have the ruling overturned. When a judge denied the motion, Miguel's grandfather defied the court order that Miguel be returned to Washington Jr. and Forrester and instead sent his grandson to live with straight relatives in Pennsylvania.

Though Miguel was eventually returned to his uncle and Forrester, the legal battle over who should have custody of Miguel was just beginning. In an effort to settle the dispute between Miguel's fathers and grandparents, a judge postponed a December 8 custody hearing in favor of court-mandated counseling for the parties involved. At that appearance, Washington Jr. and Forrester were referred to in open court as Miguel's "two dads," and the denial of a ,notion to remove Forrester as a de facto parent seems a positive sign that the court may ultimately grant the couple joint custody. But as tension increases, even a full custody hearing, now scheduled for March 2, may not bring an end to the dispute.

In California there is no precedent for removing a child from the care of a parent or legal guardian solely based on his or her sexual orientation, and Washington Jr. says his attorneys are confident that he and Forrester will not lose Miguel. However, even if they are granted permanent custody of Miguel, the ruling could be appealed. Like many gays and lesbians raising children, Washington Jr. and Forrester are being forced to fight for their rights as parents amid suggestions that their sexual identity makes them unfit for the role.

Like their heterosexual counterparts, nonbiological gay parents often are able to win visitation rights to see the children they've helped raise by riding on the coattails of the established rights of nonadoptive parents, most commonly legal stepparents. Still, when the end of a relationship is contentious, the sexual orientation of the parents can become an issue in the legal wrangling that follows.

"We've seen a precipitous increase in visitation and custody disputes between gay and lesbian couples," says Kendell. She says the cases, ugly as they may be, have had a positive effect on the law: "The legal fact is that most states no longer see a parent's sexual orientation alone as a basis for limiting parental rights."

Even for gay and lesbian parents in stable relationships, legally protecting their children can be difficult. Second-parent adoption, in which one partner seeks to adopt the other partner's children, is a crucial issue for same-sex couples raising children together. It's the only real way to provide custody rights to a surviving parent in the event of one partner's death, to protect a child's right to inheritance, and to ensure that children qualify for health care insurance and other benefits under both parents. But because many states require that the biological parents waive their right to custody before an individual other than a legal spouse is allowed to adopt a child, second-parent adoption is often problematic for gay parents. The cost and the intense scrutiny placed on parents in the process is daunting.

"I did it myself, for my 4-year-old son," says Kendell. "Now nothing can diminish the fact that I'm legally recognized as his parent. But the truth is that it was a very expensive process---upward of $3,000-and social workers came to my home to observe my family. I was required to answer very personal questions. It was invasive." Still, Kendell says, gay couples who can take advantage of second-parent adoption should do so.

State legislatures last year presented nonbiological gay and lesbian parents with one significant victory and one major setback with regard to adoption rights. In May the Connecticut general assembly overwhelmingly supported a bill allowing second-parent adoption, and in June, Gov. John G. Rowland signed the bill into law, making Connecticut the first state to protect the practice through legislation. However, this victory came on the heels of a disappointing move by lawmakers in Mississippi, who passed a law barring gay men and lesbians from adopting. A similar law was taken off the books in New Hampshire in 1999, but Mississippi is now the fourth state--along with Arkansas, Florida, and Utah--to limit the rights of gay and lesbian parents.

However, state courts rather than state legislatures most often dictate the outcome of custody battles, and in 2000 courts made significant steps toward recognizing the rights of gay parents. In April a New Jersey court granted visitation rights to a lesbian who helped raise her former partner's twins for the first two years of their lives. The court referred to the biological mother's ex as the twins' "psychological mother" and determined that she was, therefore, entitled to visitation rights. In what could be considered a de facto victory for non-biological gay and lesbian parents, in October the U.S. Supreme Court declined to hear an appeal of the ruling, allowing the lower court's decision to stand.

Lending further credibility to the idea of psychological parenting, in October a judge in New York granted a woman permanent visitation rights to see the two children she helped raise, in spite of the objection of her former partner, the biological mother. Persuaded by the testimony of a child psychologist, the court determined that it was in the best interests of the children involved "to see both parents." Lawyers in the case called the ruling the first of its kind in the state.

Kendell says 2000 was a pivotal year in terms of the legal recognition of gay and lesbian families. "It's fair to say that we may have turned a corner with these cases, with courts now looking at the factual reality of family life and focusing less on the strict legal constructs of the statutes involved," she says. "In fact, it was the first year in which we actually won more cases than we lost."

In May a Maryland appeals court ruled that an ex-partner in a lesbian relationship could have legal standing similar to that of a stepparent, though the court stopped short of equating the legal status of same-sex partnerships with that of heterosexual ones. While visitation rights were not granted because of the emotional problems of the child involved, the ruling affirmed the rights of nonbiological gay parents.

Also in May another ruling in favor of gay parents came out of Florida. There, the district court of appeals reversed the 1998 ruling of a trial court that had granted sole custody of two young children to their father, removing them from the care of their lesbian mother and her partner. The court condemned the antigay sentiment in such custody battles by stating that the lower court inappropriately "succumbed to the father's attacks on the mother's sexual orientation."

However, not all of the high-profile custody cases of 2000 had positive outcomes. Gay parents in Pennsylvania saw the courts limit their rights to adopt when in November the state superior court denied second-parent adoption rights to two couples--one lesbian, one gay--in spite of the fact that such adoptions have been done frequently in many Pennsylvania counties. The court's ruling clearly stated that same-sex partners do not have the same legal standing as heterosexual couples in second-parent adoption cases. The case, a major setback for gay and lesbian parents, came down to a strict interpretation of state law. The court cited the state adoption act, which extends second-parent adoption rights to "spouses" of biological parents. But because gay marriage is not legal in the state, the court said, partners of gay men and lesbians are not legally considered spouses and therefore have no fight to adopt the biological children of their partners.

"It's obvious to me that legal marriage represents the Holy Grail in terms of legal protections for our families," says Kendell, who admits to reservations about the institution of marriage. "But as a lawyer, the conclusion is inescapable: Not having legal marriage will always relegate our families and relationships to second-class status."

Still, there is hope. In what might be considered a small victory, superior court judge Correale Stevens, author of the majority opinion in the Pennsylvania case, made it clear that the court's ruling was dictated by the letter of the law, not the sexual orientation of the couples seeking adoption rights. It is the job of the legislature, not the judiciary, the court said, to expand existing laws to recognize stone-sex partners.

The dissenting opinion, however, said the court inappropriately focused on the same-sex relationship between the parents rather than the relationship between parent and child, suggesting that the interests of the children were being ignored. The Pennsylvania case is one example of many heard in courtrooms across the country every year. And as the courts and legislatures continue to deter mine the boundaries of gay parents' rights, what is becoming clear is that the rights of the children of gay parents, the most important but often forgotten participants in custody disputes, are being established as well.

"Overall, 2000 was a positive year," says Logue. "Much has been added to the foundation. Though custody disputes can be dis heartening, our families are being recognized and validated more than ever."

RELATED ARTICLE: A FAMILY THING

Director Debra Chasnoff talks about That's a Family/ a new film for children that takes a look at families of all shapes, sizes, and sexualities BY BARBARA RAAB 

"You love each other and take care of each other. That's a family!" It's a clear and simple fact of life for a 10-year-old boy named Fernando, whose life isn't so simple. He lives with his mother, and while he knows his father's name, he has never had any contact with him.

Fernando is one of the children who tell their stories in That's a Family/a powerful new film designed for children, presented from their point of view, and created to help them understand the wide range of family structures in America today. "It's really important to kids to have a space to talk about differences in families," says the film's director, Debra Chasnoff, "We're afraid it will make them uncomfortable or they won't understand, and in fact, kids need and want to talk about these issues,"

The 30-minute film includes few adult voices and instead "stars" more than two dozen children who are in families that don't fit the mom-dad-and-biological-kids mold, Many have parents who are divorced, single, or of different races, There are also adopted children, kids being raised by a grandparent or guardian, and children whose parents are gay or lesbian,

Ten-year-old Josh, for example, lives with his two moms, while Breauna, who is shown at her 11th birthday party, lives with her two dads, "You're not gay when you grow up just because you have gay parents," she says,

The film, produced by Chasnoff and Helen Cohen of the San Francisco-based Women's Educational Media, is a fun, colorful half hour, depicting kids doing ordinary things--making chocolate cake, jumping rope, playing games-and talking about what they want everybody to know about their families, The message: "Different" is normal.

National conservative groups such as the American Family Association have already launched attacks against That's a Family/ Chasnoff says, So far, however, the backlash has been nothing like the relentless campaign against the local PBS broadcasts of WEM's previous documentary, It's Elementary, which focused on elementary schools that teach students about differences in sexual orientation.

Indeed, That's a Family/has already won support from the leaders of children's, family, civil rights, and educational organizations. Two such groups--tile National PTA and the Child Welfare League sent their executive directors to introduce the film at a screening at the White House in December. Many of the more than 100 community leaders who attended that event have pledged to help disseminate the film to schools, churches, and community centers where it can reach the children who are its intended audience. "They were incredibly enthusiastic," says Chasnoff. "They said over and over, `This is what our mission is about, and we're going to work with you to get this film out there.'"

Chasnoff says she's been surprised by the emotional reaction, not only from kids but also from adults who have seen the film. "A number of adults have said to me, `If I had seen this film when I was 8 years old, it would have changed my life.'"

WEM's next big goal is to get That's a Family/ into classrooms around the country, `I'm extremely proud that 7-, 8-, 9-year-olds would see something at their school or at their church or at the service center where they go, where the words gay and lesbian are conveyed in a positive sense and connected with family," Chasnoff says, "Thousands and thousands of children in this country are going to have that experience for the first time because of this movie, I think it's really revolutionary."

Tare, a freelance writer in Los Angeles, is a former editor for RadioSpy.com.