An unusual custody case?
That is what the AP calls it. But actually this dispute between two women will become more and more common, unfortunately.
A Santa Cruz court is slated to hear a custody dispute between former lesbian partners in which the biological mother has become romantically involved with the sperm donor father of her 10-month-old twins. Ah yes, the father: the forgotten figure in the demands that Presumption of Paternity be replaced by Presumption of Parenthood.
Kim T. Smith of Santa Cruz has sued for joint custody of the twins, saying she and former partner Maggie Quale agreed to raise the boys together. Agreed? How? Can she prove that? What would count as proof?
Qaule and the boy’s biological father, 28-year-old Shawn Wallace, now live together and argue they should be able to fully parent the children. The nerve of them.
Quale and Smith never registered as domestic partners with the state. But the two women are listed as the boys’ parents on their birth certificates, and the twins carry the hyphenated last name Quale-Smith. So Ms. Smith is not related to the children by biology, or adoption, usual routes for establishing parenthood. Nor were they domestic partners. Let us call her a “non-parent.”
Smith’s attorney said she had never heard of a case in which a biological mother has tried to “sub in” the biological father following the break-up of a lesbian relationship. Actually, there was a case in Washington state in 2005 called In re Parentage of LB, in which the mother married the father.
“If they won, we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors,” said Deborah Wald, a family law attorney who is representing smith along with the National Center for Lesbian Rights. A moment of clarity: the National Center for Lesbian Rights is trying to assign parental rights to non-parents. And suing perfectly fit parents to surrender their parenting rights which surely include the right to decide whom their children will spend time with.
You can find more commentary from the (roughly) right here and from the (roughly) left here. I say “roughly” in both cases, because the comments are split. I think this is a good thing. People are not just jerking their knees, but actually having to think about this case.
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I posted a bit on the Dallas Voice blog…
Because I had a similar case in CA where the birth mother falsified the birth certificate. ( Falsely claiming she was married to my husband). I knew about the legalities of forms required to obtain a CA birth certificate. When there is a live birth in a hospital, the staff has the mother sign a declaration under penalty of perjury about the facts of the birth. CA Health and Safety code 102425 states exactly what can /can’t be placed on the CA birth certificate.
The first question is….ARE you married to the father of the child ? …… if the answer is NO, then no name is placed in the father slot until there is a legal determination of paternity, as motherhood is not an issue. The woman who gave birth is the assumed legal parent.
So criminal fraud was committed in this lesbian case….. and there is no presumption that the non bio lesbian is a parent. The birth certificate doesn’t determine parentage. Contributing money (insurance plan) to the birth of a child does not establish parenthood. It is considered a gift of money. Living with someone / not registered as “partners”, nor married confers parental rights.
I am currently suing the State of Ca over another bizarre parental case where at issue is the unfair excluding of community property exemption rights of spouses in determining Child support for adulterous children, not of the marriage. (Think LIZ EDWARDS case) The state of Ca. DCSS claims that I don’t have a right to a quarantine of 50% of my husband’s earnings (which is by law, my property ) and thus I should pay for another woman’s right to procreate with my property. Otherwise, the courts say I have to end my marriage (and get a court order) in order to have community property protections from debts I am not liable for. A wife’s property and her marriage are apparently collateral damage for another interloper’s “right to procreate”. So much for CA protecting the institution of marriage !
spermdonorswife.wordpress.com
OPPs.. .meant to say… ( living with the mother does NOT confer parental rights . )
As a ‘donor’ conceived person with an active interest in all ‘donor conception’ related issues, I have been following these discussions and debates very closely over the past several years. I found a very interesting and insightful blog by a woman named Julie Shapiro who is a professor of law at the Seattle University School of Law. A recent debate on her blog on this very issue titled “Why Lesbians Might Think Before Using A Known Donor” raises many of the “bigger picture” concerns many of us share in common.
Please read this – especially ALL of the comments (see link below — line). It touches on biological parenthood vs. intent parenthood, mother’s rights vs. father’s rights vs. children’s rights (who essentially have no rights), feminism and the cause and effects of separating sperm/egg/man/ woman from reproduction and responsibility.
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Why Lesbians Might Think Before Using A Known Donor
January 24, 2010 · 42 Comments
http://julieshapiro .wordpress. com/2010/ 01/24/why- lesbians- might-think- before-using- a-known-donor/ #comment- 2862