Gay Parent Case Confusion...

[MobBoss]

http://www.breitbart.com/news/2006/05/15/D8HKA0F80.html

Holy Moley. What a confusing case. Synopsis: lesbian couple decides to raise a child. One gets artificially inseminated. Couple raises child for a number of years. Couple breaks up. Birth mother decides to marry sperm donor. Earlier lesbian partner sues for parental rights.

Here are my insights.

1. Why didnt the non-birth parent move to legally adopt the child which would confer legal parent rights to her as well. This is exactly what would need to happen if the non-birth parent was a male as well.

2. What legal rights/responsiblities should the male donor have? There has been case law where male donors have been sued, successfully I recall (I could be wrong), to provide child support. Do his rights and responsiblities change significantly now that he is married to the birth mother?

3. Does the woman who has now married the donor still consider herself to be a lesbian I wonder. Is this a marriage of love, or just one to try and win the court battle? Kinda speculative since the story does not go into detail about it.

4. Does being a "de-facto" parent obligate you legally to provide child support? To my knowledge it hasnt up to this point so why should a "de-facto" parent have rights? Couldnt one assume that a state appointed foster parent be a "de-facto" parent and would a foster parent have any parental rights in the face of a biological parent re-claiming custody of a child?

5. I think this poor kid is going to need therapy for many, many years. I cant imagine the level of confusion this has leveled on her.

 

[carlosMM]

MB, for once I (partly) agree with you - it is just your number 5 IU disagree with. Whether the kid will need therapy depends a LOT on how the parents and others communicate tiwht the child.

 

[Ovulator]

the sperm doner waives any and all legal rights and responsibilies of any possible resulting children.

 

[.Shane.]

1. Why didnt the non-birth parent move to legally adopt the child which would confer legal parent rights to her as well. This is exactly what would need to happen if the non-birth parent was a male as well.

Well, that may not have been legal where they live. If it was legal, I agree, they should've done that.

2. What legal rights/responsiblities should the male donor have? There has been case law where male donors have been sued, successfully I recall (I could be wrong), to provide child support. Do his rights and responsiblities change significantly now that he is married to the birth mother?

A sperm donor should have no legal responsibilities. No idea what the law says.

3. Does the woman who has now married the donor still consider herself to be a lesbian I wonder. Is this a marriage of love, or just one to try and win the court battle? Kinda speculative since the story does not go into detail about it.

Totally irrelevant.

4. Does being a "de-facto" parent obligate you legally to provide child support? To my knowledge it hasnt up to this point so why should a "de-facto" parent have rights? Couldnt one assume that a state appointed foster parent be a "de-facto" parent and would a foster parent have any parental rights in the face of a biological parent re-claiming custody of a child?

Ethically, yes, being a "defacto" parent obligates you. Legally, probably not.

5. I think this poor kid is going to need therapy for many, many years. I cant imagine the level of confusion this has leveled on her.

Too speculative. All divorces/custody fights are bad for kids. The side-issue of the parents sexuality is a non-starter so far as that goes.

 

[El_Machinae]

I'm a little confused as to what a "de-facto" parent is in this case. Which parents are "de-facto"?

 

[MobBoss]

I'm a little confused as to what a "de-facto" parent is in this case. Which parents are "de-facto"?

As that is a term I have not heard in my legal career I can only assume that it refers to the adults seeing to the care of the child on a day to day basis.

 

[El_Machinae]

So, the second lesbian (in this example) was the 'de facto' parent?

Well, then I can answer the question regarding duties. If they raised the child, they should love the child. And if you love a child, you take care of it.

 

[thetrooper]

What a great plot for a Hollywood movie.

 

[GenMarshall]

3. Does the woman who has now married the donor still consider herself to be a lesbian I wonder. Is this a marriage of love, or just one to try and win the court battle? Kinda speculative since the story does not go into detail about it.

I would think she would be bisexual if she fell for both a man and/or a woman. Homosexuality is not black and white.

 

[Elrohir]

Poor kid. No matter who wins this case, he's the one who is going to be screwed over by all of this.

 

[croxis]

Sexuality isn't black and white you mean =P

Divorce is just nasty period. I agree with number 1 however the rest I can think of similar situations that would rise of the parenting couple were heterosexual. Nasty issue regardless, Divorce is the most traumatic normative experience a child can go though.

 

[Rik Meleet]

1. You don't always do what "should be done". Sometimes you'll regret it, but not always.

2. This is a key question: "Is responsibility / right genetical or not ? "

3. Unimportant

4. see 2.

5. Because of the seperation of its 2 mothers ? It's not substantially different than 2 parents divorcing. Actually; this is 1 positive thing about not allowing gay-marriage; not so much legal hassle during seperation.

 

[Masquerouge]

Poor kid. No matter who wins this case, he's the one who is going to be screwed over by all of this.

You mean, screwed up like any kid whose parents divorce?

 

[MobBoss]

Sexuality isn't black and white you mean =P

Divorce is just nasty period.

But...this isnt a divorce case. It is a child custody case. If this were a man and a woman arguing the issue would be fairly straightforward. The man who was not a genetic parent and who had not adopted the child would not get any parental rights...especially if the childs biological father is involved as he is in this case.

So if that is the case then why even consider the woman who is a non-genetic parent that had not in turn adopted the child?

Is it possible that the case is getting far more scrutiny/consideration that it normally would since the case involves two women as opposed as a man and a woman? I am about 99.9% positive that a man, with no genetic ties to the child, would in no way be given partial custody over the wishes of the genetic mother.

 

[El_Machinae]

I think, but am not sure, that in Canada a friend of the child can sue to continue to see the child, but I'm not sure.

 

[El_Machinae]

Mrs. Machine clarified what would occur in Canada.

The “de facto” parent in such a case would be called the in loco parentis, which is latin for “in the place of a parent.” She would be legally obligated to pay child support and likewise would have access/custody rights. In fact, based on the facts she could go for joint custody. It is true that the situation would have been easier had she legally adopted the child. The presence of the birth father doesn’t change the rights of the in loco parentis. Mainly this is because it is the right of child to continue to have access and support from this parent. Grandparents can also sue for access to a grandchild.

So while this is a Canadian interpretation, she says "that laws are different by province and definitely by country, but that the in loco parentis status is pretty universal because it comes mainly from the common-law (case law)."

 

[MobBoss]

So while this is a Canadian interpretation, she says "that laws are different by province and definitely by country, but that the in loco parentis status is pretty universal because it comes mainly from the common-law (case law)."

American law is not much different, although I tend to think we put more emphasis on blood ties as opposed to simply time acting as a "de facto" parent.

The obvious question then is what makes a "de facto" parent? I know I do guardianship powers-of-attorney that give "in loco parentis" abilities to people caring for children in absence of their parent(s). How long must you be a "de facto" parent for you to gain such rights and privileges? 6 months? A year? Five? In the case mentioned the non-birth woman parent was in the relationship for five years.

I wonder if the non-birth mother paid or offered to pay child support to the birth mother prior to being barred from seeing the child. And also, what were the circumstances that brought that situation into being.

I dunno. In the case the non-birth mother hasnt seen the kid for over 4 years while this has been going through the courts. And that is just for the right for this to be argued IN court, not the actual case itself. That kid will most likely be 18 by the time this gets resolved, if at all. Considering this, I think there are certainly other motives to go forward with such a case, than just concern over the childs welfare.

 

[Ansar]

the sperm doner waives any and all legal rights and responsibilies of any possible resulting children.

I agree with Ovulator.

 

[blackheart]

What a great plot for a Hollywood movie.

I smell multi-million dollar movie deal where all sides will be happy.

 

[Inqvisitor]

Insane, that child needs to be taken far far away from all this perversion and the rest of that crew needs to check in at the local institution.