"With liberty and justice for all (families)": the modern American same-sex family.
I. Introduction II. Assisted Reproductive Technology and Its Effect on Same-Sex Parentage III. Uniform Parentage Act: Narrow vs. Enlightened Application Among The States IV. The Fundamental Right of a Natural Parent: A History of Flexibility V. The Need for Evolution in Parentage Law A. Free Exercise of the Right to Procreate B. The Policies Underlying Parentage Law 1. Extensions of "Tradition" in Furtherance Thereof 2. Extension to Same-Sex Parents: The Next Logical Step? C. The Inadequate Remedy of Adoption 1. Florida is the Last State to Lift its Ban on Gay Adoptions 2. State Adoption Laws and their Underlying Policies 3. The Hurdle of Second-Parent Adoptions VI. Redefining "Parent" and Family: Proposed Solutions A. Recognizing Varying Degrees of "Parent" B. Intent During the Pendency and Formation of the Parent-Child Relationship C. Extending the Marital Presumption to Same-Sex Legal Unions VII. Conclusion
Evolutions in societal norms have redefined what it means to be a family in today's society. (2) Due to the widespread shift in those who seek the aid of reproductive technologies, the number of would-be parents has greatly expanded. (3) This great range of parenting possibilities presents novel and complicated issues in terms of legal parentage of children. (4)
In an attempt to address these novel issues, the Uniform Parentage Act was adopted in 2000, but has changed little since. (5) Much inconsistency exists among and within the several states in determinations of legal parentage, largely in the area of same-sex couples. (6) Adhering strictly to a definition of "parent" that does not reflect realities of families as they exist within society has the effect of violating those families who fall outside its scope. (7)
Remedies such as adoptions and co-parenting agreements afford non-biological same-sex parents a remedy at law in some instances, but loopholes still create obstacles. (8) This presents an issue as to the traditional understanding of a "parent" and calls for a broader interpretation of the term to encompass parents as they exist among non-traditional family units today, so as to afford them and their children proper and predictable protection under the law. (9) In particular, a "parent" should include the same-sex non-biological parent of a child conceived via reproductive technology. Such a change is consistent with the underlying policies and rationales involved in legal parentage, (10) and can, in effect, serve to further them while ensuring the child is afforded a legally recognized relationship with his or her second parent. (11)
This Comment does not propose that all third parties should be afforded the opportunity to co-parent a child, but focuses only on the necessitated, yet limited, expansion of this fundamental right. (12) As the Vermont Supreme Court noted, "the term 'parent' is specific to the context of the family involved." (13) We have seen evolutions of society and of our fundamental fights as its members in the past, but is the time right for another forward leap?
Part II of this Comment addresses the effect that assisted reproductive technology has had on same-sex parentage. (14) Part III addresses the Uniform Parentage Act and its failure to adequately address same-sex couples as legal "parents," therefore, creating the great inconsistencies among and within the several states. (15) Part IV addresses the fundamental right of a natural parent over his or her child and the possibility for the fight's modern evolution. (16) Part V addresses a woman's fundamental fight to procreate, the policies underlying parentage laws, and current adoption laws, all of which are demonstrative of the need for an evolved understanding and application of what it means to be a "parent" in today's society in order to afford same-sex parents adequate legal fights under the same legal presumptions as other "parents." (17) Part VI explains how that presumption should be, and in some cases is, extended to same-sex couples, and also proposes the best means by which to do so. (18) Ultimately, patterns of constitutional evolution, growing nationwide acceptance of same-sex adoption, and the policies underlying parentage law are in accord with evolving the legal definition of a "parent" to encompass same-sex non-biological parents and afford them predictable and consistent constitutional protections. (19)
II. ASSISTED REPRODUCTIVE TECHNOLOGY AND ITS EFFECT ON SAME-SEX PARENTAGE
Assisted reproductive technology affords many non-traditional couples the opportunity to become parents via artificial insemination, in vitro fertilization, or surrogacy. (20) As a result, parentage has evolved from its traditional form, where a husband and a wife use their own sperm and egg to conceive a child carded by the wife, to pregnancy via technological conception, creating varying forms of parentage. (21) Where a woman carries and delivers a child conceived with the sperm from a man other than her husband, she is the natural mother, but her husband is only the presumed father at law. (22) However, where a same-sex couple conceives, some states recognize equal rights in the non-biological parent, while others recognize limited rights or none at all, at their discretion. (23) Traditional legal doctrines based on the presumption of a traditional family of a mother and a father do not properly consider technological conception and the differing family units created therefrom, and thus do not adequately protect the rights of the families involved. (24)
In K.M. v. E.G., a lesbian couple signed an ovum donation consent form where K.M., the egg donor and partner of E.G., "agreed not to attempt to discover the identity of the recipient thereof," and "disclaimed all rights to the resulting children." (25) Although the language of the agreement clearly did not pertain to the couple or to their arrangement, this was the standard contract required in order to move ahead with the artificial insemination of E.G. (26) While K.M. was clearly distinguishable from an anonymous donor, having donated her ova to her lesbian partner with the intent of co-parenting the child, the dissent argued otherwise and felt that recognizing rights in K.M. would "threaten to destabilize ovum donation and gestational surrogacy agreements." (27) Although ultimately the court found in favor of K.M., this case presents an excellent example of the gaping holes in the law surrounding both parentage and reproductive technologies that lead to many situations where courts either struggle to find a place for same-sex families within existing laws, and sometimes it is quite a stretch, or merely refuse to recognize any legal rights at all. (28)
III. UNIFORM PARENTAGE ACT: NARROW VS. ENLIGHTENED APPLICATION AMONG THE STATES
The original Uniform Parentage Act ("U.P.A.") was adopted in 1973 to create uniformity in the law as it pertained to children born to unmarried parents. (29) In 2000, a new version was adopted, and amended in 2002, to address modern issues of parentage including the growing use of reproductive technologies. (30) Although the Act recognizes the parent-child relationship may arise in different contexts, it still defines the parent-child relationship as biological or adoptive, and subject to a gestational agreement only if the state laws hold such agreements valid or enforceable. (31) In addition, many states continue to adhere to the traditional criteria established by the 1973 Act. (32) Meanwhile, the use of reproductive technologies by same-sex parents is continually increasing, and the pressing need to develop the legal definition of the term "parent" to encompass same-sex couples remains unfulfilled. (33)
Among the several states exists a muddle of inconsistencies and unpredictability, with some recognizing parental status in those who have participated in the child's life before and after birth as de facto or psychological parents, (34) others flatly rejecting parentage in anyone other than a biological or adoptive parent, (35) and others with contradictory holdings within the state resulting from similar cases. (36) In efforts to recognize that outdated law should not preclude courts from establishing the parental rights of same-sex non-biological parents, some states attempt to fit these cases into a statutory framework that was not made to encompass them. (37) Other states acknowledge no statutory remedy is available and, instead, look to the common law doctrines to afford them parental rights. (38)
Psychological parent, (39) de facto parent, (40) and in loco parentis (41) are common law doctrines used to describe a third-party who has developed a parent-like relationship with a child and may have standing to seek visitation. (42) In states that recognize third party claims to parentage based on these or similar doctrines, a legal "stranger" may have rights to custodial responsibilities over the child. (43) As early as 1963, proponents explained:
The mutual interaction between adult and child, which might be described in such terms as love, affection, basic trust, and confidence, is considered essential for the child's successful development, and is the basis of what may be termed psychological parenthood. It is this psychological parenthood, rather than the biological events[,] which may precipitate such a relationship, which many psychologists identify as the sine qua non of successful personality development. (44)
In recognizing third party visitation rights against the wishes of a fit, natural parent, these doctrines are said to deviate from the exclusive rights traditionally afforded to a natural parent. (45) Instead, determinations based on these doctrines focus on the intent of the parties at the commencement of the pregnancy (46) and during the formation and pendency of the parent-child relationship. (47) Also considered is whether the non-biological parent has "[taken] the child into [her] home and [held] it out to the world as [her] own." (48)
In E.N.O. v. L.M.M., the court found that if visitation with a de facto parent is found to be in the best interests of the child, the non-biological parent was entitled to such, over the biological parent's objection that no statutory authority exists to permit visitation rights to one who is not a natural parent of a child. (49) The Massachusetts court recognized that "[a] child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent." (50) In such cases, the best interests of the child would ultimately determine whether shared custody and visitation should be awarded and not whether the party seeking standing as a parent is a natural or de facto parent. (51)
In Coons-Andersen v. Andersen, however, the Texas Court of Appeals affirmed a trial court holding that recognized no standing for the biological mother's long-time same-sex partner to seek custody of, or visitation with, the child conceived via artificial insemination. (52) Although the court claimed to recognize rights of persons standing in loco parentis, the narrow interpretation of who qualifies as such could not apply to the non-biological parent and, therefore, afforded her no legal protection. (53)
One author described it as follows: "It is synonymous to applying the rules of basketball to the game of football simply because both sports involve throwing a ball, and no other applicable rules exist. Applying the rules of one sport to a similar, but different, sport is not going to make for a smooth game." (54) These greatly varying holdings, although representing progress within society, create the inconsistencies that exist. (55) The lack of settled law results in each case being treated as a novel one and provides no settled protection for same-sex couples or their children. (56) However, that result is precisely what the U.P.A. seeks to avoid in its stated intention:
[R]eplace state-by-state varying statutes and common law precisely because of the need for a clear, unwavering rule. The return to the common law, the use of which the UPA is intended to replace, [should] be a red flag to the legislature that case-by-case adjudication [is] on the horizon. (57)
IV. THE FUNDAMENTAL RIGHT OF A NATURAL PARENT: A HISTORY OF FLEXIBILITY
The tug-o-war that exists among the states between the desire to adhere to tradition and the emergent need for legal evolution in a new and diverse society seems to exist within the United States Supreme Court as well. (58) On several occasions, the Court has favored "established family type relationship[s] over ... biological bond[s]." (59) Recently, Justice Kennedy noted in Troxel v. Granville that "cases are sure to arise--perhaps a substantial number of cases--in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto." (60) He further noted that "the inconclusive historical record and case law, as well as the almost universal adoption of the best interests standard for visitation disputes, [would make it] hard pressed to conclude the right to be free of such review in all cases is itself 'implicit in the concept of ordered liberty.'" (61)
Nevertheless, strict compliance with traditional Supreme Court holdings seems to prevent courts from intervening in a natural parent's fundamental rights absent exceptional or compelling circumstances, such as the parent's unfitness. (62) But because this standard of strict compliance does not recognize the diverse forms of parenting that exist, it effectually ignores the best interests of the children which, the Court has noted, does not necessarily result from a biological relationship. (63) This absolute protection of a natural parent's right is deeply rooted in the historical fundamental right to privacy and in what a "family" has signified traditionally. (64)The Court has vigorously sought to maintain that conformity. (65)
Throughout history, however, the Court has had to reinterpret the intent of the Framers of our Constitution with regard to changing times and issues that could not have been foreseen at the time the document was drafted. (66) There have been instances in which the Court has been forced to veer off the path of tradition to afford legal protections where they were lacking. (67) For example, in Loving v. Virginia, the Court recognized for the first time that the fundamental right to marry extended to interracial marriages, contrary to the traditional and historical context of marriage at the time. (68) Today, interracial marriages are a norm and represent more than seven percent of the married population of fifty-nine million. (69)
Prior to the Supreme Court's decision in Stanley v. Illinois, the father of a child born out of wedlock had little to no rights to the custody or parenting of his child. (70) The "stigma" of illegitimacy persisted until the Supreme Court finally recognized that "penalizing children who have no power over the circumstances of their birth is both 'illogical and unjust,'" (71) and labeled state laws that did not recognize the legal fights of illegitimate and legitimate children equally unconstitutional. (72) The U.P.A. aimed at protecting the interests of the children, and the state governments soon followed. (73) Stanley symbolized a "revolutionary step forward" from tradition and the laws of the time by recognizing and eliminating laws frivolous in nature and extending much needed legal protection. (74) Today, a significant number of children are born out of wedlock. (75)
The Court's recent decision in Troxel v. Granville signals an evolving appreciation for the complexity and diversity that make up today's modern families, and for the dangers that implementing bright constitutional lines poses to real families. (76) The Court observed: "[t]he demographic changes of the past century make it difficult to speak of an average American family." (77) As one author stated: "[t]he greater flexibility and self-restraint apparent across the great run of the Supreme Court's family privacy cases should be reassuring...." (78)
V. THE NEED FOR EVOLUTION IN PARENTAGE LAW
A. FREE EXERCISE OF THE RIGHT TO PROCREATE
An important issue underlying the need for recognition of a nonbiological same-sex parent's rights is the fundamental right to procreate, which is also among the important considerations underlying the legal establishment of illegitimate children. (79) In addition to the importance of considering the distinction recognized by the courts between the right to procreate and the right to parent, it is also very important to consider that this right cannot be limited or impeded. (80) Children are continually born into same-sex families without the security of a legally recognized second-parent because of the social stigma attached to homosexuality, (81) similar to the social stigma deemed "illogical and unjust" in Gomez v. Perez. (82) Meanwhile, lesbian partners will continue to conceive and male partners will continue to seek conception via surrogates "even in the presence of laws preventing homosexual marriage or adoption," as well as in the absence of laws protecting their rights or those of their children. (83)
In 1999, statistics showed approximately 250,000 children under age eighteen were being raised by same-sex parents, of which only five percent were adopted. (84) Results from the 2000 census show a national average of approximately twenty-two percent of male same-sex couples and thirty-three percent of female same-sex couples raising their "own" children. (85) Additionally, studies have suggested a comparable rate of separation between same-sex couples and opposite-sex couples. (86) The logical conclusion from this data is that the number of children born into same-sex families will likely continue to rise, along with the custody and visitation disputes pursuant thereto.
The express purpose of the original U.P.A. and related statutes, was to define the legal rights of illegitimate children without regard to the marital status of their parents in an effort to address the mounting concern of illegitimate children, and the exigent circumstances arising from the need for their care and financial support. (87) Cognizant that the right to procreate could not be limited, this legislation was enacted to conform to an evolving society at the expense of tradition in order to preserve the underlying policies of parentage. (88) Similarly, "[o]ne cannot prevent an individual from reproducing merely because of that person's sexual orientation," and continued lack of appropriate legislation on the issue of same-sex parentage will serve to disseminate policies underlying parentage today. (89)
B. THE POLICIES UNDERLYING PARENTAGE LAW
The most important policy underlying the law of parentage is "to ensure that children have at least one, and preferably two, legal parents who are responsible for their care and support." (90) This policy serves to secure the interests of the child while securing that of the public as well, by ensuring that parents and not the public bear the financial responsibility. (91) Parentage law, however, remains reflective of traditional notions of family, which may support rules promoting some forms of family over others. (92) Nevertheless, these traditional notions have evolved and extended through the years where the interests of the children and the public are in peril. (93)
1. Extensions of "Tradition" in Furtherance Thereof
Traditionally, the legally recognized father of a child born to a married woman was her husband. (94) Although this marital presumption is rebuttable today, courts typically avoid non-paternity of a husband when it would conflict with the child's best interests, regardless of the biological relationship. (95) The effect of this strong presumption is to ensure that "children of married couples will almost invariably have two parents with care and support obligations." (96) A natural parent's traditional or fundamental rights are sacrificed in the best interests of the child and the public, as well as in furtherance of traditional notions of a two-parent family. (97)
The significant increase in children born out of wedlock during the 1970's, however, prompted legal recognition of illegitimate children because of the growing concern that the potential "impact of single parenting on children, and its corollary public costs" might hinder the continued success of parentage policies. (98) This was a departure from the traditional idea of family, but was necessary to further the interests of the children and the public. (99) This extension of the parent model throughout the years implies a willingness of the legislature to accommodate underlying notions of traditional families in order to adequately enforce the primary policies of securing care and support for the children because these concerns are so great. (100) While the ongoing evolution of marriage seems to imply marriage is strictly a matter of private concern and personal choice, (101) the parent-child relationship is increasingly becoming one of public concern. (102) One academic stated the following:
Parenthood itself is increasingly seen as a functional status, rather than one derived from biology or legal entitlement. This new, child-centered perspective has led courts to limit the rights of parents who have failed to accept responsibility for their children and to grant "parental" rights to nonparents who have done so in their stead ... [P]arents' rights are secondary to children's interests. (103)
2. Extension to Same-Sex Parents: The Next Logical Step?
The policy underlying parentage law is to ensure children have "at least one, and preferably two, legal parents" upon whom they can depend. (104) In Nancy S. v. Michele G., the biological mother of a young boy was killed in a car accident. (105) While the boy was in the hospital, his biological mother's former partner, whom he referred to as his "other mother," arrived to claim him; but, because she was not a legally recognized parent, the child was placed in foster care, regardless of what would be in his best interest. (106) Is that in accord with public policy? Is family homogeneity more important than affording children the security and the right to two legally recognized parents to depend on, regardless of their sex?
Is homogeneity more important than securing the financial interests of the forum state? In Elisa B. v. Superior Court, a lesbian couple jointly decided to become parents and raised their children together throughout their relationship; Elisa, the non-biological parent, provided substantial financial support. (107) A couple of years later, Elisa decided she no longer wanted to provide financial support for the children. (108) In this case, however, the court did find Elisa was a "presumed parent" and had a financial obligation to the children after considering a number of factors, including the fact that one of the children had Down's syndrome. (109) Parentage policy is said to serve as a security for the interests of the child while simultaneously securing that of the public. (110) But is it only where the danger of grave financial burden on the public exists that the best interests of the child will trump the societal scruples associated with same-sex couples?
Statistics show same-sex couples raising their own children have lower household incomes, and therefore, have fewer economic resources to provide for their children than do heterosexual couples raising their own children. (111) As these statistics show, the potential negative effects of single-parenting that prompted the legal recognition of illegitimate children threaten an equally, if not more, severe effect on the policies of parentage. (112) The continually growing number of same-sex families makes this a matter of persisting concern. (113)
Legal recognition of same-sex non-biological parents, as well as equal rights for their children, may be the best way to maintain and further the success of parentage policies. Current parentage law is child-centered, and the stigma associated with same-sex couples is a separate matter. (114) The paramount concern in the issue of parentage among all the states should become "the effect of our laws on the reality of children's lives." (115)
C. THE INADEQUATE REMEDY OF ADOPTION
1. Florida is the Last State to Lift its Ban on Gay Adoptions
Florida recently lifted its thirty-three year ban on gay adoptions after its Third District Court of Appeal ruled the law unconstitutional. (116) During trial, substantial expert testimony established that sexual orientation is not indicative of a person's parenting ability. (117) That and growing public support for the law's removal prompted the judges' ultimate decision. (118) After noting that politics may no longer play a role in these decisions, one Florida attorney stated: "It's pretty apparent across the board that the [public] majority agrees the law is ill-advised.... There are a lot of kids who are going to have homes who would not have homes without this decision.... That's what it comes down to." (119)
2. State Adoption Laws and their Underlying Policies
Over the years, social mores as well as the growing number and characteristics of children available for adoption have changed the structure of U.S. adoption laws in order to better meet the needs of adoptive children. (120) Traditionally, being married and within a designated age range were requirements for adoption, and exceptions were made only in exceptional circumstances. (121) Today, the age and marital status of adoptive parents remain among the considerations, but the number of unmarried adoptive parents has increased greatly. (122) However, while sexual orientation of an individual is no longer an allowable consideration for adoption among the states, various states maintain restrictions on a same-sex couple's right to petition jointly. (123) The recent lift of Florida's ban on gay adoptions, therefore, constitutes neither an end nor a solution to the battle same-sex parents continue to wage against legislatures in their efforts to attain legal parentage rights over children born of their own relationships. (124)
The same policies and values surrounding parentage laws are manifested in adoption laws: ensuring the children's interests take precedence over those of their parents; and ensuring that children have two parents with obligations of care and support, resulting in a financial benefit to the state as a result thereof. (125) Laws preventing adoption by gays are engineered with the societal stigma and morality concerns of particular groups of people at the forefront, rather than in furtherance of relevant policies. (126) A Florida, attorney stated:
Everywhere in the law where children are affected, the standard must always be what is in the best interest of the child.... What is stunning to me is that when it comes to dealing with gays, that standard goes out the window [based on the idea that] [c]hildren do better with a mother and a father. (127)
In addition, these laws create high costs for the state and affect a large number of children. (128)
3. The Hurdle of Second-Parent Adoptions
While a normal adoption procedure can be completed only once the former parents' rights have been relinquished, second-parent adoptions do not require the first parent to relinquish his or her rights as a parent. (129) Rather, second-parent adoptions allow a second-parent to assume equal rights and responsibilities over the child. (130) Both parents have equal rights to make medical and educational decisions, and both maintain equal rights to a continued relationship with the child should the couple's relationship end. (131) Additionally, if one parent should become incapacitated or die, the surviving parent is legally entitled to maintain custody of the child, rather than a more distant relative or the state in certain instances. (132)
However, second-parent adoption is not available in all states. (133) Pennsylvania is among the states that recognize same-sex couples' right to a second-parent adoption; however, in In re Adoption of R.B.F. & R.C.F., the lower court's ruling against that right resulted in an interpretation of Pennsylvania's adoption laws that frustrated a gay, non-biological parent's right to adopt his or her own child. (134) In the superior court case, the dissent noted the law's reasoning as applied to same-sex couples led to an illogical result and wrongly focused on "the relationship between the petitioners at the expense of attention to the parent-child relationship and the potentially salutary effect that an adoption would have on the child's interests." (135) Finally, in 2002 the State began to recognize the right of a same-sex parent to a second-parent adoption. (136)
Currently, only ten states expressly recognize second-parent adoptions as an option for same-sex couples. (137) Others either have no express prohibitions or have allowed for such adoptions only within certain jurisdictions. (138) While only a few states expressly prohibit second-parent adoptions, (139) the unpredictability among those states that have recognized these rights on a case-by-case basis provide no legal security for same-sex non-biological parents. (140)
VI. REDEFINING "PARENT" AND FAMILY: PROPOSED SOLUTIONS
While the Constitution provides fundamental privacy rights to an undefined parent, legislatures traditionally have relied upon socially accepted norms and ideals to assign meaning to the words "parent" and "family." (141) This theoretical American family, however, does not reflect modem realities. (142) An adequate legal resolution is one that seeks to honor the modern-day's real families and to preserve the children's interests in the stability and continuity of parent-child relationships, rather than trying to force families into a "preferred model"; (143) not "family standardizing, but family enabling."(144) In appreciation of the diversity and complexity of family life, and the great constitutional regard for family privacy, the fundamental rights of a parent should evolve to include protections for the particular family relationship at stake. (145) A broad interpretation of parentage that encompasses varying gradations of "parent" will allow for the legal recognition of parents that may come to their status not only by way of childbirth or a court decree, but also by way of caretaking within a functioning family. (146)
Parentage laws, as they apply to same-sex couples, demonstrate a disjuncture between respecting the private realm of family that is beyond the reach of the state and employing coercive measures to enforce conformity with social norms regarding what a parent or family should be. (147) Societal norms, however, are changing; and growing numbers of same-sex couples raising children and growing numbers of social acceptance, legal recognition is the next logical step. (148) This interpretation will harmonize the core constitutional protections of family integrity and intimacy for those families who fall outside of conventional boundaries. (149) Why should respect for the private realm of family be extended only to those who fit the mold?
A. RECOGNIZING VARYING DEGREES OF "PARENT"
Following Stanley v. Illinois, (150) the Supreme Court seems to have begun recognizing claims to constitutional protection of non-traditional parents who are afforded varying degrees of protection depending on the nature of their relationship, although their rights are still subordinate to those of the natural or adoptive parent. (151) The Court noted the distinction as follows:
It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they are freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another's constitutional recognized liberty interest that derives from blood relationship.... (152)
Therefore, a state cannot recognize a non-traditional parent's rights as being equivalent to those of the natural or adoptive parent unless such recognition is in furtherance of a compelling state interest. (153) However, a minimal intrusion is subject to a lower level of scrutiny than a substantial intrusion into the natural parents' fundamental rights. (154) Although an award of shared parental rights over the child is generally considered a substantial intrusion and thus subject to strict scrutiny, (155) focusing on the intent of the parties during the pendency and formation of the parent-child relationship does not require the biological parent to give up anything more than that which he or she has consented to and has been practicing throughout the child's life and, therefore, does not serve to substantially interfere with his or her parental right. (156)
B. INTENT DURING THE PENDENCY AND FORMATION OF THE PARENT-CHILD RELATIONSHIP
The many states that recognize parental rights in same-sex nonbiological parents make the ultimate determination by focusing on the intent of the parties throughout their relationship, at the commencement of the pregnancy, and during the formation and pendency of the parent-child relationship. (157) By employing a similar standard, parental status is conferred only upon those regarded as parents per the actions of the legal parent. (158) In addition, the justification for deferring to the natural parent's judgment in regards to the care, custody, and upbringing of his or her child is upheld, but in a manner that eliminates the possibility of post-split self-interest. (159) Therefore, the determination of parentage is based on the parties' past practices. (160)
Proposed considerations include the following: the expectation and intent of both parties that the non-biological parent be the child's second parent; (161) whether the parties resided together as a family unit; (162) whether both parties treated the non-biological parent as the child's second parent and the biological parent actually held him or her out as such, (163) and the amount and type of caretaking and support provided to the child by the non-biological parent. (164) Whether there exists a bonded, dependent parent-child relationship between the child and the non-biological parent is another important consideration. (165) And finally, whether there is any other claimant to the status of parent, where a negative decision would leave the child with only one legal parent also should be considered. (166) Employing this standard as a means by which to afford legal parental rights to non-biological same-sex parents will not substantially reduce the natural parent's rights in that he or she will continue to enjoy the same amount of time customarily spent with the child and the decision-making authority he or she has always enjoyed. (167) Further, it limits the court's ability to define a parent per its own subjective standards; and while arguably interfering in what traditionally have been regarded as absolute parental rights of a natural parent, it does so only to the extent voluntarily created by the family arrangement in order to preserve the parent-child relationship. (168)
Traditional strict categorization has been justified based on the belief that "natural bonds of affection lead parents to act in the best interests of their children." (169) When the family is broken, however, self-interest may compromise a parent's usual impulses on behalf of the children; resulting in an inaccurate reflection of his or her better judgment. (170) Therefore, focusing on the parties' previous intent, during the intact relationship, is the best avenue by which to ensure fairness and legal justice for the parents as well as for the children. (171)
C. EXTENDING THE MARITAL PRESUMPTION TO SAME-SEX LEGAL UNIONS
Extending the marital presumption, traditionally afforded to the husband of a child's biological mother, to a same-sex couple's legal union also can serve as adequate legal footing for a non-biological parent. (172) In accord with the rationale for previous evolutions in the parent model, an extension of the presumption to the non-biological same-sex parent will ensure children born to same-sex couples will have two parents with obligations to care for and support them, a legal right equal to that afforded children of heterosexual couples. (173) With this extension, the best interests of the child will be served, and the risk of grave financial burden to the public can be significantly lessened. (174)
If, in their efforts to preserve and further parentage policies, courts have been willing to defer to the marital presumption over a biological parent's objections or to disregard the moral implications associated with out-of-wedlock births then the unfounded social stigma against same-sex couples should not be the wall impeding legal modernization in the exercise of justice and the continued success of parentage policies. (175)
The law as it pertains to same-sex parents is made up of complications, inconsistencies, and an inadequate body of legal rights. Although today gay parentage remains at the forefront of the legal arena, there remains widespread unwillingness among courts and legislatures to stray from traditional notions of parentage, as well as stern opposition to treating same-sex families with the same level of respect and equality as heterosexual or "normal" families. Meanwhile, the number of same-sex couples conceiving via reproductive technologies and raising children continues to increase. (176)
As Americans, we pride ourselves on being a progressive, forward-moving nation, that is diverse and colorful. We are a society that demands better education for our children and greater opportunities for their future. We embark on countless endeavors to keep them away from drugs, to increase their self-esteem, and to enhance their chances of success in today's world. We campaign to protect them from violence and from bullying. We are a nation obsessed with turning out a quality force to forge ahead our nation's future. It is in this spirit that we must address the issues of gay parenting laws.
The war over legal parenting rights for same-sex non-biological parents represents a battle between conformity and social mores on one end, and equality and the freedoms of privacy and personal choice on the other. However, the faces of this war and injustice belong to the most innocent members of our society, our children, those who we strive so hard to protect. Through the eyes of a child, the unique parent-child bond with his or her non-biological same-sex parent does not differ from a conventional father-child or mother-child bond, with the exception of a biological relationship that is scientifically impossible. (177) This child is not interested in what society believes his family should look or act like. His interest is only in maintaining the love and stability offered to him by his second mother or father.
For nearly a decade, courts have vigilantly guarded a parent's fundamental liberty interest concerning his or her child's upbringing. (178) This right is considered "perhaps the oldest of the fundamental liberty interests." (179) However, this dates back to a very different time. Today, why should traditionalists dictate what a family should look like? Why should a rigid society be allowed to punish the diversity of others? The Supreme Court in Troxel v. Granville stated:
[S]o long as a parent adequately cares for his or her children ... there will normally be no reason for the State to inject itself into the private realm of the family [or] to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. (180)
Why should this standard be considered inapplicable merely because of the sexual orientation of a child's parent? Why is the respect afforded the private realm of family suddenly discarded, with coercive measures with which to maintain conformity in its place? Similar to the social changes that have compelled legal reform in the past, current law must evolve so as to embrace the diverse reality that is the American family, and to accord liberty and justice for all families, of all colors, shapes, sizes, and sexual orientations.
LISSETTE GONZALEZ (1)
(1.) J.D. Candidate, St. Thomas University School of Law, 2012; M.A., Florida International University, 2009; B.S., Florida International University, 2007. I would like give a special thank you to Ryan Price for all of his great insight and hard work, for his great interest in the topic from the start, and last, for his support and belief in me. He is an excellent mentor, and I could not have done it without him.
(2.) See John G. New, Note, "Aren't You Lucky You Have Two Mamas?": Redefining Parenthood in Light of Evolving Reproductive Technologies and Social Change, 81 CHI.-KENT L. REV. 773, 774 (2006). Changing social attitudes concerning same-sex couples include the increasing acceptance of domestic partnerships, the expansion of adoption laws to include single parents as well as same-sex couples, and, in some states, same-sex marriage. Id.
(3.) See Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 HARV. L. REV. 835, 846 (2000) (recognizing the significant shift of usage over recent years from married couples with fertility problems to single women with no male partner and same-sex couples).
(4.) See id. at 847-52 (noting that current parentage law fails to adequately reflect these technological advances).
(5.) See UNIF. PARENTAGE ACT (2000) (amended 2002), 9B U.L.A. 1 (Supp. 2010). The Uniform Parentage Act is considered to be the modern trend amongst state laws regarding the parent-child relationship. Id. The most significant objective of the UPA is the equal treatment of all children without regard to the marital status of the parents, including children born out of wedlock, adopted children, and children conceived through reproductive technologies. Id. Since the UPA was first adopted in 1973, only nineteen states have enacted the Act, and many other states have enacted significant portions of it. See 69 CSG COMMITTEE ON SUGGESTED STATE LEGISLATION, CSG SUGGESTED STATE LEGISLATION 2010, 213 (2010), available at http://knowledgecenter.csg.org/drupal/system/files/ uniformparentageactstatement2010ssl.pdf (reflecting that nine states, Alabama, Delaware, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming have adopted the 2000 Act as of February 2009); New, supra note 2, at 779 (stating that in 2006 most of the states were still adhering to the Act of 1973).
(6.) See In re Nelson, 825 A.2d 501, 504 (N.H. 2003) (refusing nonparent a claim to parental rights over the objection of fit, biological parent); In re Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991) (refusing to interpret the term parent to include categories of nonparents who wish to continue visitation with the child); In re Bonfield, 780 N.E.2d 241, 247 (Ohio 2002) (declining to entertain the claim that same-sex partner was a "parent"); In re Thompson v. Thompson, 11 S.W.3d 913, 923 (Tenn. Ct. App. 1999) (rejecting former same-sex partner's claim to visitation); Coons-Andersen v. Andersen, 104 S.W.3d 630, 635-36 (Tex. Ct. App. 2003) (refusing to recognize in loco parentis claim by same-sex partner, thereby denying visitation rights); Jones v. Barlow, 154 P.3d 808, 815, 819 (Utah 2007) (refusing to extend in loco parentis or adopt de facto or psychological parent doctrines to permit visitation claim by former same-sex partner); Stadter v. Siperko, 661 S.E.2d 494, 501 (Va. Ct. App. 2008) (refusing to adopt de facto or psychological parent doctrines). But cf. Elisa B. v. Superior Court, 117 P.3d 660, 670 (Cal. 2005) (recognizing former same-sex partner as the children's presumed second parent); In re E.L.M.C., 100 P.3d 546, 562 (Colo. Ct. App. 2004) (granting former same-sex partner joint parental rights as a psychological parent); Mason v. Dwinnell, 660 S.E.2d 58, 72-73 (N.C. Ct. App, 2008) (holding that a biological mother relinquished the exclusive right to direct her child's upbringing to her former same-sex partner, requiring custody be granted in the best interests of the child); Beth R. v. Donna M., 853 N.Y.S.2d 501, 508-09 (N.Y. Sup. Ct. 2008) (finding biological parent may not deny former same-sex partner's standing to seek custody).
(7.) See David D. Meyer, What Constitutional Law Can Learn from the ALI Principles of Family Dissolution, 2001 BYU L. REV. 1075, 1079. "No matter how strong the emotional bonds between unmarried cohabitants (or between other unconventional intimates ...) such individuals simply fall outside of the traditional idea of 'family'; therefore, no special justification is required by the Constitution for measures intruding upon their relations." Id.
(8.) See In re Bonfield, 780 N.E.2d at 243--44. The court noted:
[S]econd-parent adoption is not available in Ohio, [so the non-biological parent] cannot adopt the children ... the effect would be to terminate the [biological parent's] rights and responsibilities. An option in some states for [the non-biological parent] would be ... to pursue a 'second-parent adoption'.... a process by which a partner in a cohabitating and non-marital relationship may adopt his or her partner's biological or adoptive child, without requiring the parent to relinquish any parental rights.
Id.; see also Katherine Swan, All about Second Parent Adoptions for Gay Families, THE RAINBOW BABIES, available at http://www.therainbowbabies.com/ SecondParentAdoption.html (last visited Mar. 10, 2011) ("[F]our states have outlawed second parent adoption: Colorado, Nebraska, Ohio, and Wisconsin.").
(9.) See Moore v. City of E. Cleveland, 431 U.S. 494, 513 (1977) (holding that constitutional protections of family extended only to individuals related by "blood, adoption, or marriage"); see also Meyer, supra note 7, at 1084-86.
Traditionalism leads the courts to recognize as holders of constitutional privacy rights only those persons whose claims to family status have long-standing societal approval .... [Non-traditional parents] have been considered legal "strangers" to the child, barred from any child-rearing role over a parent's objection except upon some quite extraordinary showing, such as the parent's unfitness.
(10.) See Garrison, supra note 3, at 882 ("[E]nsuring that children have at least one, and preferably two, legal parents who are responsible for their care and support ... has been thought to serve the interests of both the children and the public.").
(11.) See Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 968 (Vt. 2006). The court recognized the need for legal evolution, stating:
When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment. To deny the children of same-sex partners, as a class, the security of a legally recognized relationship with their second parent serves no legitimate state interest.
Id. (quoting In re B.L.V.B., 628 A.2d 1271, 1275 (Vt. 1993)).
(12.) See discussion infra Part IV.
(13.) Miller-Jenkins, 912 A.2d at 969 (affirming the family court's determination that a same-sex non-biological parent is entitled to temporary custody and visitation, a right separate and apart from that of the parties' same-sex union).
(14.) See discussion infra Part II.
(15.) See discussion infra Part III.
(16.) See discussion infra Part IV.
(17.) See discussion infra Part V.
(18.) See discussion infra Part VI.
(19.) See conclusion infra Part VII.
(20.) See Garrison, supra note 3, at 845-52 (discussing the processes and procedures involved with artificial insemination, in vitro fertilization, and surrogacy).
(21.) See id.
(22.) See id.
(23.) See, e.g., VT. STAT. ANN. tit. 15, [section] 1204(f) (2010); see also supra note 6 and accompanying text.
(24.) See Garrison, supra note 3, at 845-52 (recognizing the need for the current law to legally address the new family units turning to reproductive technologies to conceive).
(25.) 117 P.3d 673, 676 (Cal. 2005).
(26.) See id. at 676. The various factors clearly indicating the parties' intent to co-parent the children included: purchasing a home together, naming both parties on the children's school paperwork, and referencing K.M's parents as the children's grandparents. See id. at 677.
(27.) Id at 683-88 (Werdegar, J., dissenting); see also CAL. FAM. CODE ANN. [section] 7613(b) (West 2009). "The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." Id.
(28.) See K.M., 117 P.3d at 682; see also Holtzman v. Knott, 533 N.W.2d 419, 422-27, 430 n.26 (Wis. 1995) (refusing to extend the state's parentage statute to the lesbian parent). In refusing to allow her any parental rights, the court held that the "law does not recognize the alternative type of relationship" and the legislature's intent was for the statute to be "triggered by marriage." Id.
(29.) See sources cited supra note 5; see also New, supra note 2, at 777.
(30.) See UNIF. PARENTAGE ACT [section] 201(a)(4) (amended 2002), 9B U.L.A. 15 (Supp 2010) (recognizing gestational agreements as grounds to establish parentage). Lindsy J. Rohlf, The Psychological-Parent and De Facto-Parent Doctrines: How Should the Uniform Parentage Act Define "Parent"?, 94 IOWA L. REV. 691, 714-15 (2008) (noting that the amended Act purported to encompass "all possible bases of the parent-child relationship").
(31.) See UNIF. PARENTAGE ACT [section] 201 (amended 2002), 913 U.L.A. 15 (Supp 2010); see also Nicole L. Parness, Forcing a Square into a Circle: Why are Courts Straining to Apply the Uniform Parentage Act to Gay Couples and Their Children, 27 WHITTIER L. REV. 893, 907 (2005).
[N]ot once in the entire Act are any of the following words mentioned: Gay, lesbian, domestic partnership, or homosexual. As a result, when courts attempt to apply the Act to gay couples to determine parentage of their children, it is almost as if they are attempting to fit a square into a circle....
(32.) See New, supra note 2, at 779.
(33.) See id.
(34.) See E.N.O. v. L.M.M., 711 N.E.2d 886, 892-93 (Mass. 1999); see also infra notes 39-41.
(35.) See Thompson v. Thompson, 11 S.W.3d 913, 918-19 (Tenn. Ct. App. 1999). On appeal, the presiding judge explained:
While it may be true that in our society the term "parent" has become used at times to describe more loosely a person who shares mutual love and affection with a child and who supplies care and support to the child, we find it inappropriate to legislate judicially such a broad definition of the term ... as relating to legal rights relating to child custody and/or visitation. Just as a grandparent who provides care and support to a child does not become recognized as being a parent (absent adoption) under Tennessee law, other persons are not recognized as being a parent under Tennessee law based only upon prior care and support of a child[,] ... includ[ing] any unmarried persons who maintain a close intimate relationship with a child's natural parent, whether they are of the same or opposite sex of that natural parent.
(36.) Compare Elisa B. v. Superior Court, 117 P.3d 660, 670 (Cal. 2005) (stating that because the non-parent held the children out as her own, she was a second parent and obligated to pay child support), with West v. Superior Court, 69 Cal. Rptr 2d 160, 161 (Cal. Ct. App. 1997) (holding that a non-parent in a same-sex relationship did not have standing to obtain custody or visitation).
(37.) Recent Cases, Family Law--Same-Sex Couples' Parental Rights and Obligations--California Supreme Court Holds Child Support Provisions of Its Uniform Parentage Act Applicable to Same-Sex Couples, 119 HARV. L REV. 1614, 1620 (2006) [hereinafter Recent Cases].
(38.) See id.
(39.) In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995). In determining psychological parentage, the following factors apply:
To demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
(40.) See E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999) ("A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family.").
(41.) See Coons-Andersen v. Andersen, 104 S.W.3d 630, 635 (Tex. Ct. App. 2003) ("The in loco parentis relationship arises when a non-parent assumes the duties and responsibilities of a parent.").
(42.) See supra notes 39-41.
(43.) See Meyer, supra note 7, at 1089 (recognizing that courts generally classify all caregivers who are not the biological parents of the child as "strangers" in the eyes of the law).
(44.) See Note, Alternatives to "Parental Right" in Child Custody Disputes Involving Third Parties, 73 YALE L.J. 151, 157-58 (1963) (opposing the general view that "a 'blood tie' between parent and child will eventually result in more and better love and, hence, in a more adequate psychological development of that child").
(45.) See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (noting the importance of the constitutionally protected rights of natural parents "in the care, custody, and control" of their children); Sheppard v. Sheppard, 630 P.2d 1121, 1127 (Kan. 1981) ("[N]atural parent's right to the custody of his or her children is a fundamental right which may not be disturbed by this state or by third persons absent a showing that the natural parent is unfit."); In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999) (denying a parent custody in favor of a non-parent without proof of unfitness or substantial harm to the child is in violation of his constitutional rights).
(46.) See K.M. v. E.G., 117 P.3d 673, 682 (Cal. 2005) ("A woman who supplies ova to be used to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child.").
(47.) See, e.g., V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000) (establishing the intent of the natural mother during the relationship, and not her wishes at the end, as the relevant inquiry to better protect the bond she fostered and the best interests of the child); see also Joanna L. Grossman, New York's Highest Court Recognizes a Lesbian Co-Parent's Rights, but Affirms an Unpopular Precedent (pt.2), FINDLAW.COM (May 25, 2010), http://writ.news.findlaw.com/ grossman/20100525.html. It is the initial sentiment in making the decision to have a child together, not the bitterness resulting from a breakup, which should be honored by the law. Id. Explaining further, to consider intent otherwise would mean the same-sex partner who is the biological parent has all the power to decide whether or not to permit the other any custody or visitation rights. See id.
(48.) See Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 123, 144 (Ct. App. 2004) (finding that the best interests of the child were determined indirectly, by observing the non-biological parent's behavior); see also New, supra note 2, at 791 n.133. The author noted:
The advantage of "intentionality" as evidenced by behavior as a standard over the "best interests of a child" is the unpredictability of the latter standard. In cases where there is no clear-cut choice (as, for instance, between an abusive and non-abusive partner) the decision [of what is in the child's best interests] may rely on stereotyped notions or prejudices, financial contributions, or other criteria not strictly related to the child's emotional welfare.
(49.) See E.N.O. v. L.M.M., 711 N.E.2d 886, 892-93 (Mass. 1999). In this case, the parties had been in a committed relationship for thirteen years. Id. at 888. E., the non-biological parent, had been a part of the decision to conceive, participated throughout the pregnancy, and was present during the birth. Id. at 888-89. E's last name formed part of the child's last name and the child called her "mommy." Id. at 892-93. The parties also resided together as a family, and E. provided substantial financial support for the child. Id. at 892. Additionally, the parties had executed a co-parenting agreement, indicating their intent to allow the relationship between E. and the child to continue should the romantic relationship between the parents end. Id. at 892.
(50.) Id. at 891. A de facto parent was defined by the court as one who, although having no biological relation to the child, has participated in the child's life as a member of the child's family, residing with and caring for the child, with the consent and encouragement of the legal parent. Id. Additionally, the de facto parent "shapes the child's daily routine, addresses developmental needs, disciplines the child.., and serves as a moral guide." Id.
(51.) See id. Same-sex couples are increasingly deciding to have children and those children form parental relationships with both partners, regardless of whether they are legal parents or de facto parents. See id. The best interests of the child determination must, therefore, be made by merely examining the nature of the relationship between the child and each of the parents. See id.
(52.) 104 S.W.3d 630, 637-38 (Tex. Ct. App. 2003). In this case, many factors evidenced the parties' intent to co-parent. See id. at 637. The parties lived together and the non-biological parent supported the other financially and emotionally in her efforts to conceive via artificial insemination. See id. The parties also executed a co-parenting agreement that allowed for the non-biological partner to continue to co-parent the child in the event of their split. See id. at 638. After the child's birth, the non-biological partner financially supported the family. See id. However, the court held that by moving out of the household and maintaining actual care and control of her child, the biological parent ended the non-biological parent's standing as in loco parentis. See id. at 635-36.
(53.) See id. The court stated:
Texas courts have traditionally recognized the fights of persons standing in loco parentis to a child ... in the place of a parent and [referring] to a relationship a person assumes toward a child not his or her own. .... We do not agree a person can be in loco parentis to a child without actually having possession of the child.... The defining characteristic of the relationship is actual care and control ... [;][here] the child's mother was actually caring for the child and appellant was not. Texas courts have never applied the common law doctrine of in loco parentis to grant custodial or visitation rights to a non-parent, against the parent's wishes, when the parent maintains actual custody of the child.... Once [the mother] and the child moved out.... any possible claim appellant may have had for standing in loco parentis ended.
Id. at 634-36.
(54.) Parness, supra note 31, at 911.
(55.) See supra notes 33-36 and accompanying text. Compare K.M.v.E.G., 117 P.3d 673, 677 (Cal. 2005) (analogizing the lesbian partner to an anonymous sperm donor, the court refused to recognize any rights in her over her genetic child), with Elisa B. v. Superior Court, 117 P.3d 660, 669-70 (Cal. 2005) (recognizing the biological parent's same-sex partner as the child's second parent).
(56.) See supra notes 34-36 and accompanying text.
(57.) Recent Cases, supra note 37, at 1621 (2006).
(58.) See, e.g., Troxel v. Granville, 530 U.S. 57, 91-92 (2000) (Scalia, J., dissenting) (finding the fundamental right of parents to direct the upbringing of their children is at odds with the states' power to interfere with parents' authority over their children); Lehr v. Robertson, 463 U.S. 248, 261 (1983). In Lehr, the Court held:
[T]he importance of the familial relationship, to the individuals involved and to society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in "promot[ing] a way of life" through the instruction of children ... [and] from the fact of blood relationship.
Id. (quoting Smith v. Org. of Foster Families for Equal. and Reform, 431 U.S. 816, 844 (1977)) (emphasis added). In Troxel, Justice Scalia stated:
Only three holdings of this court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children, two of them from an era rich in substantive due process holdings that have since been repudiated. The sheer diversity of today's opinions persuades me that the theory of unenumerated parental fights underlying these three cases has small claim to stare decisis protection. A legal principal that can be thought to produce such diverse outcomes.., is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.
Troxel, 530 U.S. at 92 (Scalia, J., dissenting) (citations omitted). In addition, Justice Kennedy stated:
True, this Court has acknowledged that States have the authority to intervene to prevent harm to children, but that is not the same as saying that a heightened harm to the child standard must be satisfied in every case in which a third party seeks a visitation order.... [The] conclusion that the Constitution forbids the application of the best interests of the child standard in any visitation proceeding.... seems to proceed from the assumption that the parent or parents who resist visitation have always been the child's primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child. That idea ... appears influenced by the concept that the conventional nuclear family ought to establish the visitation standard for every domestic relations case[,] ... [t]his is simply not the structure or prevailing condition in many households. For many boys and girls a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood[,] ... whether their childhood has been marked by tragedy or filled with considerable happiness and fulfillment.
Id. at 97-98.
(59.) In re Custody of H.S.H.-K., 533 N.W.2d 419, 434 n.36 (1995) (citing Michael H. v. Gerald D., 491 U.S. 110 (1989) and Lehr, 463 U.S. 248). In Lehr, the Court determined whether the natural father's opportunity to form a relationship with his child had been provided by the forum state, and found that the natural father had no "greater right to object to such an adoption [by the husband of the natural mother] than to an adoption by two total strangers." Lehr, 463 U.S. at 262 n. 19. In denying the putative father relief, the Court observed:
[T]he result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the "best interests of the child."
Lehr, 463 U.S. at 262 n.19 (quoting Quilloin v. Walcott, 434 U.S. 246, 255 (1978).
(60.) Troxel, 530 U.S. at 98 (Kennedy, J., dissenting) (noting that states are entitled to consider that certain relationships are such that the best interests of the child standard should govern the determination).
(61.) Id. at 100 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (recognizing Washington for employing the best interest of the child standard in circumstances it deems necessary).
(62.) See id. at 68-69. The Court emphasized the importance in not intervening with a natural parent's rights and stated:
[T]here is a presumption that fit parents act in the best interests of their children.... Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.
(63.) See supra notes 59-61.
(64.) See Meyer, supra note 7, at 1079. The author explained that "[e]mbedded societal norms permit a man and a woman to claim family status in their decision to many but preclude other combinations[, n]o matter how strong the emotional bonds between unmarried cohabitants." Id.
(65.) See id.
(66.) See Pamess, supra note 31, at 912.
(67.) See infra notes 68-78 and accompanying text.
(68.) 388 U.S. 1, 11-12 (1967) (recognizing the fundamental right of an individual to marry an individual of his or her choosing).
(69.) David Crary, Interracial Marriages Surge Across the U.S., USA TODAY (Apr. 12, 2007) available at http://www.usatoday.com/news/health/2007-04-12-interracial-marriage_N.htm.
(70.) 405 U.S. 645, 646 (1972) (recognizing the parenting rights of a father over a child born out of wedlock).
(71.) New, supra note 2, at 777 (citing Weber v. Aetna Casualty & Surety, Co., 406 U.S. 164, 175 (1972)).
(72.) See, e.g., Weber, 406 U.S. at 175-76 (noting the Supreme Court's authority to strike such laws that serve no legitimate state interests); Gomez v. Perez, 409 U.S. 535, 538 (1973) ("[T]here is no constitutionally sufficient justification for denying ... an essential right to a child simply because its natural father has not married its mother.").
(73.) See UNIF. PARENTAGE ACT, Prefatory Note (1973) (amended 2002) ("[T]he states need new legislation on this subject because the bulk of current law on the subject of children born out of wedlock is either unconstitutional or subject to grave constitutional doubt.").
(74.) New, supra note 2, at 777 ("[T]he Court, through these decisions, exorcised at least the legal stigma attached to illegitimacy that had been used as a means of social condemnation of non-marital relationships.").
(75.) See Barbara Downs, Fertility of American Woman, Census 2000 Special Reports, U.S. CENSUS BUREAU, at 5 (2003), available at http://www.census.gov/prod/2003pubs/p20-548.pdf. Between June 2001 and June 2002 alone, approximately 1.3 million women gave birth out of wedlock, representing thirty-three percent of all births during that period. Id. In 2002, Eighty-nine percent of out of wedlock births were attributed to young women between the ages of fifteen and nineteen. Id. at 6.
(76.) See Meyer, supra note 7, at 1101. "Instead of resolving the constitutional questions with the announcement of a clear rule, a majority of the Court insisted that the better course would be to decide the issues slowly and incrementally against the background of specific family controversies." Id.
(77.) Troxel v. Granville, 530 U.S. 57, 63 (2000). The majority of the Court did not address whether the natural parent's fundamental rights could be interrupted only upon a finding of substantial harm to the child; and the dissenting judges expressly rejected the standard as too "rigid" and "categorical." See id. at 73-77, 86, 96.
(78.) Meyer, supra note 7, at 1101.
(79.) Cf. In re Baby M, 537 A.2d 1227, 1253 (N.J. 1988) (rejecting the biological father's claim that his constitutional right to procreate gave him the right to custody of the child over a claim by the surrogate birth mother). The court found:
[T]he right to procreate ... is [no more than] the right to have natural children, whether through sexual intercourse or artificial insemination.... The custody, care, companionship, and nurturing that follow birth are not parts of the right to procreation.
(80.) See id.; see also supra notes 68, 70-73 and accompanying text.
(81.) See Meyer, supra note 7, at 1079 (recognizing the rights of same-sex couples poses moral, ethical, and religious issues within the individual states); HUMAN SERV. & WELFARE COMM., NAT'L CONFERENCE OF STATE LEGISLATURES, SAME-SEX MARRIAGE, CIVIL UNION, AND DOMESTIC PARTNERSHIPS (2010), available at http://www.ncsl.org/default.aspx? tabid=16430 (showing only ten states recognize gay marriages).
(82.) See supra text accompanying notes 71-72.
(83.) New, supra note 2, at 802; see also id. ("[O]ne cannot prevent an individual from reproducing merely because of that person's sexual orientation.") (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
(84.) See R. Bradley Sears, Gary Gates, & William B. Rubenstein, Same-Sex Couples and Same-Sex Couples Raising Children in the United States: Data from Census 2000 (UCLA/Williams Project on Sexual Orientation Law and Pub. Policy, Los Angeles, CA.), Sept. 2005, at 10-11, available at http://www2.1aw.ucla.edu/williamsinstitute/ publications/CaliforniaCouplesReport.pdf (citation omitted) (noting that the figure of 250,000 includes the couples' own children, foster children, and adopted children).
(85.) Tavia Simmons & Martin O'Connell, Married-Couple and Unmarried-Partner Households: 2000, Census 2000 Special Reports, U.S. CENSUS BUREAU 1, 10 (2003), available at http://www.census.gov/prod/2003pubs/ censr-5.pdf. "[W]hile the vast majority of households containing own children were married-couple households (24.8 million), over two million households included own children whose parents were living in nontraditional arrangements (1.9 million opposite-sex unmarried partners, 96,000 female partners, and 66,000 male partners)." Id. at 11. See also id. at 10 (defining "own" children as including biological children of the relationship as well as the children of previously married partners before entering the same-sex relationship).
(86.) See New, supra note 2, at 802 ("[A]lthough there are no strong data concerning rates of divorce or separation among gay and lesbian couples in the United States (where homosexual marriages are generally illegal), recent studies suggest that the rate of separation for committed homosexual couples is comparable to that of heterosexual couples.") (internal citation omitted).
(87.) See supra note 5; see also discussion infra Part V.B.
(88.) See discussion infra Part V.B.
(89.) New, supra note 2, at 802 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
(90.) Garrison, supra note 3, at 882.
(91.) See id. at 882-83 (noting that the emotional needs of the child and the financial aspect are of significant weight, more so than the rights of the parents themselves).
(92.) Id. at 883.
(93.) See discussion infra Part V.B. 1.
(94.) See Garrison, supra note 3, at 883 (discussing the strong marital presumption).
(95.) See id. at 884. Regarding the issue of non-marital paternity, the author explained:
There are any number of cases in which divorce courts, usually relying on estoppel or laches principles, have refused to permit the mother's husband to [contest] the paternity issue or denied the mother the opportunity to contest the presumption when she had acquiesced in her husband's establishment of a parental relationship with her child.
Id.; see also Casbar v. DiCanio, 666 So. 2d 1028, 1030 (Fla. Dist. Ct. App. 1996) (striking parties' non-paternity agreement that conflicted with the child's best interests and stating, "parents may not contract away the rights of their children to support"); Jean E. Goldstein, Children Born of the Marriage: Res Judicata Effect on Later Support Proceedings, 45 MO. L. REV. 307, 308 n.5 (1980) (discussing the many courts that rely on res judicata to bar post-divorce paternity contests).
(96.) Garrison, supra note 3, at 885-86. Garrison stated:
[P]aternity law ... constitutionally focus[es] on children's interests and allow[s] a minor child to assert a paternity claim at any time under any circumstances but permit[s] an unmarried father to block his child's opportunity to experience two-parent care only after demonstrating a willingness to offer the child a meaningful relationship himself.
Id. at 886.
(97.) See Michael H. v. Gerald D., 491 U.S. 110, 129 (1989) (plurality opinion). The Court explained:
Where, however, the child is born into an extant marital family, [and] the natural father's unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage ... it is not unconstitutional for the State to give categorical preference to the latter ... [A]lthough "'[i]n some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father,'.... the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist.'"
Id. (citations omitted); see also Lehr v. Robertson, 463 U.S. 248, 261 (1983) ("When an unwed father demonstrates a full commitment to the responsibilities of parenthood ... his interest in personal contact with his child acquires substantial protection ... [b]ut the mere existence of a biological link does not merit equivalent constitutional protection.").
(98.) Garrison, supra note 3, at 887; see also Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 FAM. L.Q. 519, 527-28 (1996). "As policymakers began to pay attention to the mushrooming number of out-of-wedlock births ... [e]stablishing paternity was seen as a way to alleviate some of the poverty [associated with single parenting] because it opened the door to possible receipt of child support." Id.
(99.) See discussion supra Part V.A.; see also Garrison, supra note 3, at 887 ("[C]hildren in single-parent households have a higher rate of poverty and welfare dependence than any other segment of the American population."); SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS, 19-38 (1994) (noting children in single-parent households are more likely to experience problems such as delinquency, behavioral problems, low educational attainment, and early childbearing).
(100.) See supra notes 94-99 and accompanying text.
(101.) See Loving v. Virginia, 388 U.S. 1, 11-12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.").
(102.) See supra notes 94-99 and accompanying text (discussing the public's financial interest in securing two parents for the child); see also Linda McClain, "Irresponsible'" Reproduction, 47 HASTINGS L.J. 339, 372-419 (1996) (addressing legislative initiatives aimed at promoting two-parent care and reducing single mothers' dependence on welfare).
(103.) Garrison, supra note 3, at 893-94.
(104.) See Garrison, supra note 3, at 882; see also supra note 91 and accompanying text.
(105.) See Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Non-Biological Lesbian Co-parents, 50 BUFF. L. REV. 341, 341 (2002) (discussing facts omitted from the opinion of Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct. App. 1991)).
(106.) See id. at 341.
(107.) See Elisa B. v. Superior Court, 117 P.3d 660, 663 (Cal. 2005) (describing the parties' agreement that Emily would bear the children and stay at home because Elisa had a significantly larger income).
(108.) See id. at 663-64.
(109.) See id. at 663, 669-70. Paralleling the lesbian partner to a traditional second parent, the court decided that, because of the substantial role the non-biological parent played in the child's life, finding that she was not the child's parent would produce a situation they had sought to avoid in the past: "leaving the child fatherless." Id. at 669 (citing In re Nicholas H., 46 P.3d 932, 934 (Cal. 2002)).
(110.) See supra note 91 and accompanying text.
(111.) See Sears et al., supra note 84, at 14. The author noted:
Parents in same-sex couples have lower levels of education than [heterosexual married parents]. Only [twenty-three percent] of same-sex couples raising children have a college or advanced degree, while [thirty percent] of [heterosexual] married couples with children have a college or advanced degree. ... The median household income for.., same-sex couples is [almost nine thousand dollars] lower than the median household income for [heterosexual] couples with children; the average household income is nearly [eleven thousand dollars] lower.
(112.) See supra notes 98-99, 111 and accompanying text.
(113.) See discussion supra Part V.A.
(114.) See supra text accompanying notes 90-91.
(115.) Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 968 (Vt. 2006).
(116.) See generally Florida Dept. of Children and Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d. Dist. Ct. App. 2010). At the time of this decision, Florida was the only remaining state that expressly prohibited gay adoptions. See id. at 81. The Third District Court of Appeal, utilizing rational basis scrutiny, held that a Florida statute violated an adopting parent's equal protection rights. Id. at 91. The statute stated: "No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual." Id. at 81 (citing FLA. STAT. [section] 63.042(3) (2006)). In finding the statute unconstitutional, the court reasoned:
Under Florida law, homosexual persons are allowed to serve as foster parents or guardians but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons-even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children. The Department has argued that evidence produced by its experts and F.G.'s experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department's position. We conclude that there is no rational basis for the statute.
Id. at 91. After the decision, the Florida Department of Children and Families stated that it would not appeal. See Robert Nolin, DCF Move Ends 33-year Ban on Gays Adopting: Agency Gives Up Fight After Law Ruled Unconstitutional, SUN SENTINEL, Oct. 13, 2010, at A1. For additional background information related to the decision, see Judge: 'No Rational Basis 'for Gay Adoption Ban Man Allowed To Adopt 2 Foster Kids, JUSTNEWS.com (Nov. 25, 2008), http://www.justnews.com/news/18142235/detail.html [hereinafter Judge: 'No Rational Basis "for Gay Adoption Ban]. To further summarize, "there was no legal or scientific reason for sexual orientation alone to prohibit anyone from adopting." Id. Specifically, the trial judge was quoted as stating, "I find that the law prohibiting gay adoption violates the children's right to equal protection. It treats foster children in the custody of homosexual foster parents differently than foster children in the custody of heterosexual foster parents without any rational basis." Id.
(117.) See Adoption of X.X.G., 45 So. 3d at 88-92. See also Judge: 'No Rational Basis "for Gay Adoption Ban, supra note 116. The trial court judge was quoted as follows:
It is clear that sexual orientation is not a predictor of a person's ability to parent .... A child in need of love, safety and stability does not first consider the sexual orientation of his parent. The exclusion causes some children to be deprived of a permanent placement with a family that is best suited to their needs.
Id. "Organizations such as the American Academy of Pediatrics, American Medical Association and American Psychiatric Association all support permitting same-sex couples to adopt." Id.; see also Jerome Hunt & Jeff Krehely, State Antigay Adoption Policies Need to Go: Laws Have High Economic and Social Cost, CTR. FOR AM. PROGRESS (Oct. 12, 2010), http://www.americanprogress.org/issues/2010/10/ state_antigay_adoption.html (listing various child development experts who find that gay men and women are as good at parenting as heterosexuals). A development psychologist stated during trial testimony that "research shows children raised by a gay or lesbian parent are just as likely to grow up well-adjusted adults as children raised by heterosexual parents." Id. "[R]esearchers at the University of Virginia find that children adopted by lesbian and gay couples develop no differently than children adopted by heterosexual couples." Id.
(118.) See Nolin, supra note 116; see also Hunt & Krehely, supra note 117. A 2009 poll of Florida residents conducted by Quinnipiac University showed that "55% opposed the ... state law that prohibited gay men and lesbians from adopting children." Id. That same year, a national poll revealed that "53% of Americans support allowing same-sex couples to adopt children." Id.
(119.) Nolin, supra note 116; see also Judge: 'No Rational Basis "for Gay Adoption Ban, supra note 116 ("The height of [the] unfairness [is] to threaten to tear children from the only home that ... [they] [have] ever known simply for.., outdated politics." (quoting American Civil Liberties Union attorney, Robert Rosenwald, Jr.)).
(120.) See Stephen P. Presser, The Historical Background of the American Law of Adoption, 11 J. FAM. L. 443, 443-46 (1972); see also infra notes 121-23 and accompanying text.
(121.) See Garrison, supra note 3, at 890 ("Adoption agencies ... stressed a stable marital relationship and many refused applications from would-be parents over a designated age."); ALFRED KADUSHIN & JUDITH A. MARTIN, CHILD WELFARE SERVICES 542-46 (Macmillan 4th ed. 1988) (describing the various factors considered in selecting adoptive parents). "In exceptional circumstances, when the opportunity for adoption for a specific child might not otherwise be available, a single parent (who may be unmarried, widowed, or divorced) should be given consideration." Id.
(122.) See Garrison, supra note 3, at 892.
(123.) Adoption Laws: State by State, THE HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/issues/parenting/ adoptions/8464.htm (last visited Mar. 22, 2010) [hereinafter HRC]. While Florida was the only state with an outright ban on gay adoption, three states maintain restrictions on adoption by same-sex couples--Mississippi, North Carolina, and Utah. See id. These states allow for gay individuals to adopt, but expressly prohibit same-sex couples to jointly petition. See id.
(124.) See id. Currently, only ten states expressly allow a same-sex co-parent to adopt his/her partner's child or the child of the relationship--California, Colorado, Connecticut, D.C., Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont. See id.
(125.) See Garrison, supra note 3, at 892; see also discussion supra Part V.B. (describing the policies underlying parentage laws, equally applicable to adoption laws).
(126.) See Hunt & Krehely, supra note 117. Anti-gay adoption laws have been based on "nothing more than antigay bias" that serve merely to "shortchange children who need permanent homes and cost states a lot of money." Id. The author's stated further that, "[d]uring a time of state budget crunches it makes no sense to continue these discriminatory policies. Such laws and regulations are based on animus toward gay men and women, not on sound economic or social science." Id.
(127.) Judge: 'No Rational Basis' For Gay Adoption Ban, supra note 116.
(128.) See Hunt & Kreherly, supra note 117. "The Williams Institute ... at the UCLA School of Law, estimate[d] that the Florida ban kept 165 children in foster care, costing the state $2.5 million per year." Id. They further estimated that approximately "219 children will be adopted by same-sex couples now that the ban is lifted, saving the state $3.4 million." Id.
(129.) Katherine Swan, Second Parent Adoptions (and Other Alternatives for Gay Families), THE RAINBOW BABIES.com, http://www.therainbowbabies.com/SecondParentAdoptions.html (last updated May 24, 2007).
(132.) See id.
(133.) See infra notes 137-40 and accompanying text.
(134.) See In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195, 1198-99 (Pa. 2002). Petitioners, C.H.F. and B.A.F., were engaged in an intimate relationship and had been domestic partners since 1983. Id. at 1198. When the couple decided to raise a family, C.H.F. conceived through in vitro fertilization and gave birth to twin boys on March 11, 1997. Id. On April 24, 1998, the women filed a petition for the adoption by B.A.F. of the twins, ld. Attached was a consent form by C.H.F., "which intentionally omitted the phrase indicating that she intended to permanently give up her rights to the children." Id. The Common Pleas Court dismissed the petition on October 22, 1998. Id. at 1198-99. The Superior Court affirmed the denial. Id. at 1199. On January 21, 2000, the Superior Court again affirmed the denial of the adoption petition, holding that only a natural parent's spouse could adopt a child without the parent being required to waive all parental rights. See id. at 1197, 1199. Because Pennsylvania did not recognize same-sex marriages, members of same-sex couples were prevented from adopting their partner's children unless their partner agreed to waive all parental rights. See id. at 1199-1201.
(135.) See In re Adoption of R.B.F. and R.C.F., 762 A.2d 739, 748 (Pa. Super. Ct. 2000) (Johnson, J., dissenting). Judge Johnson stated:
In cases such as the one before us, the reality is that a lesbian couple is parenting the children. It is doubtful that our decision here will have any affect [sic] on this reality. However, our decision here does affect the children's interests. Regrettably, the Majority turns a blind eye to the children's interests by choosing to ignore the reality of non-traditional families.
Id. at 748-49; see also New, supra note 2, at 801. The author explained:
[T]he majority's rule inconsistently and unreasonably penalizes one type of family headed by same-sex partners (those in which one partner is a biological parent), and promotes other families headed by same-sex couples (those in which neither party is biologically related to the adoptive child).... [A] partner in a same-sex couple could not adopt her partner's biological child, but if the two decided to adopt another child from an outside source, then she would be legally entitled to do so. The result would be a family in which both partners [are] the parents of the child adopted from outside the original family unit; but a biological child could only call ... (her biological mother or father) her parent, in the legal sense of the word.
(136.) See In re Adoption of R.B.F. and R.C.F., 803 A.2d at 1202-03 (reversing the lower court's ruling, and holding that a same-sex co-parent can petition to adopt his or her partner's child(ren)). The court held:
Upon a showing of cause, the trial court is afforded discretion to determine whether the adoption petition should ... be granted. The exercise of such discretion does not open the door to unlimited adoptions by legally unrelated adults. Such decisions will always be confined by a finding of cause and a determination of the best interests of the child in each individual case.
Id. at 1202. The court further explained:
There is no language in the Adoption Act precluding two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child who had no legal parents. It is therefore absurd to prohibit ... adoptions merely because [the] children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition. It is a settled rule that in the construction of statutes an interpretation is never to be adopted that would defeat the purpose of the enactment, if any other reasonable construction can be found....
Id. at 1202-03.
(137.) See supra note 124.
(138.) See HRC, supra note 123. The list of states that either have no express prohibitions or have recognized a same-sex parent's right to a second-parent adoption in the past includes: Alabama, Alaska, Arizona, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Missouri, Montana, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and West Virginia. Id.
(139.) See id. (listing the states that explicitly prohibit second-parent adoptions to same-sex couples--Wisconsin, Utah, Ohio, Nebraska, Mississippi, and Florida).
(140.) See In re Adoption of K.S.P., 804 N.E.2d 1253, 1260 (Ind. Ct. App. 2004). The court held:
[W]here, as here, the prospective adoptive parent and the biological parent are both in fact acting as parents, Indiana law does not require a destructive choice between the two parents. Allowing continuation of the fights of both the biological and adoptive parent, where compelled by the best interests of the child, is the only rational result.
Id. But see In re Adoption of M.M.G.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003), The court held that, "[w]hile Indiana statutory law does not expressly divest the rights of an adoptive parent in the event of a second-parent adoption, neither does it expressly permit two unmarried adults to simultaneously exercise these rights with respect to an adopted child." Id.
(141.) See Meyer, supra note 7, at 1084-85. The author explains the Court's rigid traditionalism:
Traditionalism leads the courts to recognize as holders of constitutional privacy rights only those persons whose claims to family status have long-standing societal approval [while] In]on-traditional family members ... may ... be unable to invoke any privacy interests of their own with which to offset the competing claims of a traditional family member.
(142.) See supra notes 84-85 and accompanying text.
(143.) See Meyer, supra note 7, at 1077. The American Law Institute's Principles of the Law of Family Dissolution represent a positive reinterpretation of parenting laws in that they seek to "reconstruct the judicial process so that it will do less damage to real, living families who find themselves splintered by internal discord." Id. at 1076-77.
(144.) Id. (quoting Katherine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809, 819 (1998)).
(145.) See id. at 1078; see also discussion supra Part IV-V.
(146.) See Meyer, supra note 7, at 1089.
(147.) See Stadter v. Siperko, 661 S.E.2d 494, 501 (Va. Ct. App. 2008) (Beales, J., concurring) (stating lesbian partner had no legal claim under U.S. or Virginia law to parental rights over the child). Justice Beales stated:
She did not give birth to the child, she did not adopt the child.... [The] [c]ode... [that] defines the parentage of a child conceived by [artificial insemination], as was the case here, states that the gestational mother and the husband of that mother are the parents. The language of this statute does not state or suggest that any other person is also a parent to a child conceived in this manner.
(148.) See David Crary, Who's a Family? Some Say Pets In, Same-sex Couples Out: Poll Indicates Growing Support for Gay Parents, but Also Some Resistance, MSNBC.com (Sept. 15, 2010), http://www.msnbc.msn.com/id/39177707/ns/us news-life/. Between 2003 and 2010, three surveys conducted by a sociologist at Indiana University "showed a significant shift toward [considering] same-sex couples with children as family--from 54 percent of respondents in 2003 to 68 percent in 2010." Id. He explained, "This indicates a more open social environment in which individuals now feel more comfortable discussing and acknowledging sexuality." Id.
(149.) See Meyer, supra note 7, at 1090; Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family has Failed, 70 VA. L. REV. 879, 902 (1984) ("Near consensus does exist.., for the principle that a child's healthy growth depends in large part upon the continuity of his personal relationships."); Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL. L. REV. 615, 630-32 (1992) ("Child development experts emphasize the harmful impact of the disruption associated with divorce, and the link between continuity of the parent-child relationship and healthy child development.").
(150.) See supra note 70.
(151.) See Adam K. Ake, Unequal Rights: The Fourteenth Amendment and De Facto Parentage, 81 WASH. L. REV. 787, 790 (2006) (noting that the Fourteenth Amendment recognizes a "hierarchy of parental rights").
(152.) Smith v. Org. of Foster Families for Equal. and Reform, 431 U.S. 816, 846 (1977).
(153.) See In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999) (noting that a parent's unfitness or the fear of substantial harm to the child were interests sufficient to compel state interference with a parent's rights); In re Askew, 993 S.W.2d 1, 8-9 (Tenn. 1999) (requiring a showing of parental unfitness or threatened substantial harm to the child to justify a grant of custody to a non-parent). But see supra Part V.B.2 for a discussion of why recognizing a non-biological same-sex parent's rights will serve to further parentage policies, arguably a compelling state interest in the care and support of children.
(154.) See Ake, supra note 151, at 808.
(155.) See id. at 810. The author noted that "because recognition of a second parental interest when there is one existing parent necessarily creates tension with the existing parent's rights, conflict between the two is unavoidable." Id.
(156.) See discussion infra Part VI.B.
(157.) See sources cited supra notes 46-48.
(158.) See Meyer, supra note 7, at 1093.
(159.) See id. at 1092; see also infra text accompanying notes 170-71.
(160.) See Meyer, supra note 7, at 1095. If the biological parent's partner has acted as a parent to the child with the consent and approval of the biological parent, the court must give her a continuing role in rearing the child substantially similar to the role she played before the couples' relationship ended. See id. at 1085-86.
(161.) Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 970 (Vt. 2006). Whether the nonbiological parent participated in the decision that the biological parent be artificially inseminated and participated actively in the prenatal care and birth are indications of their expectation and intent to co-parent the child. See id
(162.) See In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (listing the elements involved in considering psychological parentage, including whether the third party and the child lived together in the same household).
(163.) See id. "To demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements . . . [including] that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child." Id.
(164.) See id. (noting that the considerations include whether he or she took "significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation").
(165.) See In re Parentage of M.F., 228 P.3d 1270, 1273 (Wash. 2010) (requiring that the non- biological parent has "fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life" to be recognized as a de factor parent).
(166.) See Miller-Jenkins, 912 A.2d at 465. In the case of a child conceived via reproductive technologies, the sperm donor is generally anonymous and, therefore, has no legal claim of right. See id. at 464-65. While there exists a presumption of paternity of the husband of the mother in these circumstances, this presumption may not extend to a same-sex couple. See id. at 464 & n.5. A negative decision in this circumstance, therefore, will leave the child with only one parent. See id. at 464-455.
(167.) See AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS & RECOMMENDATIONS [section] 2.09(1) (LexisNexis 2002). The principles propose that the court "should be required to allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the[ir]  separation." ld. "[T]he level of each parent's participation in past decision making on behalf of the child" should be considered when making the relevant determination. Id. at [section] 2.10(1)(b).
(168.) See Meyer, supra note 7, at 1097 (noting that per this principle, it is impossible to attain parental status without the effective consent of the natural parent; therefore, the court is merely carrying out each parent's pre-established child-rearing role).
(169.) Parham v. J.R., 442 U.S. 584, 602 (1979). Justice Burger explained:
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" ... creates a basis for caution, but is hardly a reason to discard ... those pages of human experience that teach that parents generally do act in the child's best interests.
Id. at 602-03.
(170.) See Meyer, supra note 7, at 1092.
(171.) See id.
(172.) See Garrison, supra note 3, at 883; see also supra note 95 and accompanying text.
(173.) See supra text accompanying notes 95-100.
(174.) See supra text accompanying notes 84-86; see also supra notes 99, 111, and accompanying text (noting the potential negative effects on the children and grave financial effects on the public threatened by a continuing lack of legal resolution).
(175.) See supra notes 96-99.
(176.) See discussion supra Part V.A. and accompanying notes.
(177.) See supra note 117.
(178.) See discussion supra Part IV and accompanying notes.
(179.) Troxel v. Granville, 530 U.S. 57, 65 (2000).
(180.) Id. at 68-69.
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|Publication:||St. Thomas Law Review|
|Date:||Mar 22, 2011|
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