conuly

http://www.nytimes.com/2004/03/24/national/24CUST.html?pagewanted=2

Split Gay Couples Face Custody Hurdles
By PAM BELLUCK and ADAM LIPTAK

Published: March 24, 2004

The case might be called Uterus v. Ovum.

E and K were a lesbian couple in Marin County, Calif., who wanted children. K provided the eggs, E the womb, and a fertility clinic supplied the sperm and the technical help.

When twin girls were born, the women exchanged rings and raised the children together, sharing everything from feeding and diapering to signing school forms. But five years later, they split up. E moved to Massachusetts with the girls, and K went to court to obtain shared custody.

"The world had known us as Mom and Mom," said K, an executive with a nonprofit educational organization, who like E asked to be identified by an initial. "I'm asking that my daughters have access to both moms."

E, a medical administrator who declined to be interviewed, said in a statement, "I made it clear to her from the beginning that I wanted to be a single parent, and that I would accept her ovum donation only if it was truly a donation and I would be the sole legal parent."

The judge agreed, reluctantly, that although K was the genetic mother, E, the birth mother, was entitled to sole custody.

As tens of thousands of same-sex couples become parents, they are increasingly confronting what heterosexual parents have long dealt with: remaking their lives and those of their children after a breakup.

But for gays and lesbians, the legal landscape surrounding such breakups is often uncertain or uncharted. Laws, ill fitting and varying by state, were not written to anticipate same-sex situations, and judges often take interpretative license as they struggle to navigate a rocky path.

The children are caught in the middle, and for many, the trauma and confusion of conventional divorce can be magnified. Judges have weighed in on issues like whether a former partner should pay child support, and how the children should be told of or shielded from a parent's homosexuality.

"Courts are struggling with the whole definition of what is an American family today," said John Mayoue, author of "Competing Interests in Family Law." "It's a cultural thing. There's very little law and very little regulation."

The judge in the twins' custody case, Randolph E. Heubach of Marin County Superior Court, wrote, "The court recognizes the harsh consequences this decision will visit upon the innocent children born of the parties' unusual arrangement." He said he deeply regretted that the evidence did not allow him to rule otherwise.

There are several reasons no legal road map exists for cases involving same-sex couples with children. Courts have been slow to address the status of children being raised by unmarried couples, straight or gay; advances in medical technologies have moved faster than the courts; and judges and legislators have had mixed reactions to the idea of gay couples as parents.

As a result, judicial rulings vary widely. The judge in the E and K case based his decision largely on a release form that K, whose uterus could not support a pregnancy, had signed, waiving her right to adopt when her eggs were harvested. The judge did not uphold K's claims that she considered the form only an obligatory permission slip so the fertility clinic could give her eggs to E, who could not produce viable ovum. K is appealing the ruling.

In other cases, judges have focused less on documents, many of which were not particularly tailored to same-sex couples. Those judges have relied more on the parental intent of the partners, and their relationships with the children.

According to the census, at least 600,000 same-sex couples are living together, about evenly split between men and women, but experts say such relationships are undercounted. The census also says about 60,000 female couples and 15,000 male couples live with a child, and in the vast majority, only one member of the couple has a legal relationship with the child.

Many of these children are the products of earlier heterosexual relationships, and often, courts allow a divorced man or woman who is now gay to share child custody. But not always, and courts sometimes condition custody and visitation orders on shielding the child from the homosexual relationship. In January, for instance, a Tennessee appeals court forbade an estranged husband from "exposing the child to his gay lover(s) and/or his gay lifestyle."

In Idaho Falls, a father, Theron McGriff, initially shared legal and physical custody of his two daughters. Months after divorcing in 1997, Mr. McGriff said in an interview, he realized he was gay and, in 2000, his partner moved into the house they jointly own. Mr. McGriff's former wife, Shawn Weingartner, then went to court seeking sole physical custody with visitation for Mr. McGriff.

Ms. Weingartner and her lawyer declined to be interviewed, but in her petition she cited "the ages of the children, the fact that they are approaching puberty, the fact that they are girls, the fact that Mr. McGriff is now in a homosexual relationship with another man, the fact that Mr. McGriff has failed to deal with his homosexuality in a responsible and emotionally stable manner."

The judge, Magistrate L. Mark Riddoch of Bonneville County, awarded Ms. Weingartner both sole legal and physical custody, allowing the children to visit Mr. McGriff only if he was not living with his partner.

"Father's homosexuality may not influence his/her parenting ability per se, and this court does not decide the custody and visitation issues on that basis," the judge wrote. "However, father's decision to openly co-habit with" his partner "is a change in circumstances which needed to be jointly communicated to the girls in an appropriate manner. It is a change that will generate questions from the girls and their friends regarding their father's lifestyle. Moreover, father has minimized this issue in regard to the conservative culture and mores in which the children live."

Mr. McGriff, who is appealing, said his partner now lived with relatives.

"My children deserve the right to be with both of their parents," said Mr. McGriff, 40, a chemist, who said his wife had called him "girly man" and had told the children he had an illness. "My youngest daughter said to me, `Daddy, God didn't make enough time for me to get used to this,' " meaning, the inability to spend equal time with both parents.

"I told them that we could live like this or we could fight it," said Mr. McGriff, adding that the children, ages 9 and 13, had now known his partner for nearly seven years. "They said, `Daddy, you don't have a choice. You've got to fight it.' "

Many cases of breakups by same-sex couples involve adoption laws, since often, at least one parent has adopted the child. But the status of the second parent is less clear. Only nine states have explicitly allowed so-called second-parent adoptions for gay couples in decisions of their highest courts, four states prohibit them, and many others have not definitively addressed the issue.

In Denver, Dr. Elsey McLeod and Dr. Cheryl Clark were longtime lesbian partners until Dr. Clark became an evangelical Christian who now believes that homosexuality is a sin. For years, the women raised a girl they had brought back from China, who was adopted solely by Dr. Clark because Colorado does not allow second-parent adoption.

Last year, a judge awarded shared custody to Dr. McLeod. And while he gave Dr. Clark control over the child's religious upbringing, he ordered that she not expose the girl to anything "that can be considered homophobic."

Gina Weitzenkorn, Dr. McLeod's lawyer, said her client "was concerned that the church was homophobic, especially in the literature the church distributes."

The judge's order, which Dr. Clark is appealing, has generated an outcry from religious conservatives, and last week, a state representative introduced a resolution to impeach the judge.

James Rouse, Dr. Clark's lawyer, said that even though his client had shared child-rearing responsibilities with Dr. McLeod, Dr. Clark should be allowed to "change her mind as to what's best for the child." He added: "Let's say you have a heterosexual couple and the mother finds out the boyfriend is an abuser or a drug addict. Is she required to keep that guy a part of the child's life?"

In Massachusetts, a court is considering another issue: Can a former same-sex partner who does not want responsibility for a child be compelled to pay child support? The case involves a woman, B. L., who participated in having her partner artificially inseminated, but broke up with her partner, T. F., before the child was born.

Some recent cases suggest that the availability of gay marriage could lend clarity to often hopelessly confusing situations. But there is disagreement about that, too.

In the case of K and E, K said that the women, who were registered domestic partners, would have married if they could have, which would have most likely led a court to give them joint custody.

"The way we lived our lives tells the story," said K, who said the twins look like her. "We shared everything. Our nanny for five years never even knew which one had given the physical birth."

But E's lawyer, Diana Richmond, said they would not have married, that the domestic partnership was only so K could join E's gym, and that E intended K's role to be akin to stepparent.

"She did a lot of the caretaking, that's not in dispute," Ms. Richmond said about K. "She functioned as a stepparent would function, and there's no question but that she loved the twins." But, Ms. Richmond said, granting shared custody would be "trampling" on E's rights and "giving this woman greater rights than stepparents have."

In any case, the permutations of the K v. E case would seem unlikely to apply to a heterosexual couple, married or not.

"You have the egg mom and the womb mom," said Joan Hollinger, who teaches adoption law at the University of California, Berkeley. "They're both natural mothers. One's biological and the other is genetic. Courts are issuing decisions about their dual maternity after ascertaining who intended to be the parent, and that makes me nervous."

________

E, a medical administrator who declined to be interviewed, said in a statement, "I made it clear to her from the beginning that I wanted to be a single parent, and that I would accept her ovum donation only if it was truly a donation and I would be the sole legal parent."

"She functioned as a stepparent would function, and there's no question but that she loved the twins." But, Ms. Richmond said, granting shared custody would be "trampling" on E's rights and "giving this woman greater rights than stepparents have."

You live with this woman for five years. Your kids have known her as Mom for five fucking years, and you're going to move ALL THE WAY across the country and take them from their other mom because of... what, exactly? Spiteful, much? Trampling on your rights? What about your kid's rights, the right to not be separated from half their family, the right to know the person who helped raise them so far?

Ms. Weingartner and her lawyer declined to be interviewed, but in her petition she cited "the ages of the children, the fact that they are approaching puberty, the fact that they are girls, the fact that Mr. McGriff is now in a homosexual relationship with another man, the fact that Mr. McGriff has failed to deal with his homosexuality in a responsible and emotionally stable manner."

If they're girls, they have nothing to fear from gay men. And I think that being in a long-term relationship with somebody, regardless of gender, is dealing with your sexuality in a responsible and emotionally stable manner.