Recent Same-Sex Child Custody Cases – California Supreme Court

The California Supreme Court has ruled in 3 same-sex custody cases involving parental rights/responsibilities:

In Elisa B. v Emily B. the Court held that there could be 2 mothers under the principle that a parent who accepts the non-biological child into his/her home can be liable for child support. Note that this was a state child support action which often results in an outcome that protects the public treasury.

In Kristine H. v. Lisa R. the court refused to let a biological mom who stipulated to a pre-birth parentage judgment to collaterally attack it.

In K.M. v E.G. the Court ruled that where a woman donates her egg to her partner and they raise the child, that the child has two mothers, regardless of the fact that the donor mother signed a consent/waiver of rights at the hospital, enforced under the California insemination statute. The waiver was found to be irrelevant.

In each case, the end result is that the children have two legal mothers. You can find the cases at the California Supreme Court’s website. If you’re really bored, you can also watch the arguments using the same Court web site.

Wisconsin Codifies “Internet Visitation”

The Wisconsin legislature passed this “internet visitation” bill into law yesterday. Allow commonly referred to as “internet visitation,” the bill essentially codifies many standard decretal provisions that allow for telephone contact between the custodial and non-custodial parent.

The following summary is from the Wisconsin Legislative Reference Bureau: This bill provides that, if the court grants periods of physical placement to both

parents, the court may grant to a parent a reasonable amount of electronic

communication at reasonable hours during the other parent’s periods of physical

placement with the child. Electronic communication is defined as time during which

a parent and his or her child communicate by using various types of communication

tools, such as the telephone, electronic mail, instant messaging, and video

conferencing or other wired or wireless technologies via the Internet. The basis for

granting electronic communication is whether it is in the child’s best interest and

whether equipment for providing electronic communication is reasonably available

to both parents. Electronic communication may be used only to supplement, and not

as a substitute or replacement for, the physical placement that a parent has with the


The bill provides that a parenting plan that a party files with the court before

a pretrial conference when legal custody or physical placement is contested must

include any electronic communication a parent is requesting and must indicate

whether equipment for providing electronic communication is reasonably available

to both parents. The bill also provides that, if a parent is proposing to move with the child and the other parent objects to the move, the court may not use the availability of electronic communication as a factor in support of a modification of physical placement or a refusal to prohibit the parent from moving with the child.”

Divorcing same-sex couples “raises new questions for states”

Some of this may sound like a bar exam civil procedure question, but this CNN article describes something that has been percolating for quite a while. As reported by the AP, a Rhode Island same-sex couple married in Massachusetts after the Mass. Supreme Judicial Court legalized gay marriages in 2004 has recently filed for divorce in Rhode Island. Rhode Island state law neither expressly recognizes or prohibits same-sex marriages. A hearing is set in the case on December 5, 2006.

The Iowa “gay divorce” case (the dissolution of a Vermont civil union) appealed to Iowa Supreme Court was ultimately dismissed without a substantive ruling on the issue presented in the Rhode Island case when the court determined the various groups and other individuals challenging the ruling lacked standing to bring the appeal.

“Defense of Marriage Act,” Child Custody, and Civil Unions – The Virginia Answer

In a case that has been closely watched, the Virginia Court of Appeals has issued an opinion that Virginia must give full faith and credit under the Parental Kidnapping Prevention Act (“PKPA” to a custody determination made by a Vermont court growing out of a Vermont civil union, in spite of the Virginia “Marriage Affirmation Act.” The opinion holds that the federal “Defense of Marriage of Act” (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia’s Marriage Affirmation Act and Virginia’s version of the UCCJEA.

Jury Keeps NY Couple from Inflicting Their Misery on the Rest of Us

Jury Says Feuding N.Y. Couple Cannot Divorce

By THE ASSOCIATED PRESS; Published: March 29, 2007

NEW YORK (AP) — Feuding spouses who built a wall through their three-story row house because neither would give it up cannot divorce, a jury ruled. Jurors on Wednesday shot down the ”cruel and inhuman treatment” Chana Taub cites as grounds for divorcing Simon Taub after more than 20 years of marriage and four children.

”I’m dismissing the whole case. That’s it,” Justice Carolyn Demarest said. To revive the case, Chana Taub would have to file it again, on new grounds. ”I was in total shock,” Chana Taub told the Daily News. ”It’s unbelievable.”

The husband’s lawyer, Abe Konstam, called the case an extraordinary waste and said the trial wouldn’t have been necessary if New York changed its divorce laws. The state doesn’t allow the speedy dissolution of a marriage without proof that one spouse is somehow at fault.

The case is one of the strangest divorces New York has seen, mainly because of the wall.

A judge ordered the couple to put it up because neither wanted to move out. She got the top floor and the kitchen on the second floor; he got the living room on the first floor and the dining room on the second floor. The door between the dining room and the kitchen was barricaded on both sides. The case has been dubbed Brooklyn’s ”War of the Roses,” after the 1989 movie starring Michael Douglas and Kathleen Turner as a fueding couple.

Chana says that for two decades she served Simon like a virtual slave, putting up with physical and mental abuse. Simon denies ever laying a hand on his wife and says he gave her a luxurious lifestyle. He says she wants the divorce to squeeze what money he has left. His sweater manufacturing company went bankrupt in the late 1990s, and he suffered a second heart attack in 2005 that worsened their financial problems, he says.

NOTE: Juries do not hear Iowa divorce cases at any stage in the proceedings. Unlike New York, Iowa is a “no fault” state.

Same-Sex Partner Granted Visitation (Minnesota)

The Minnesota Supreme Court issued a decision today granting visitation to a same-sex partner who had not adopted her former partner’s children. Marilyn Johnson and Nancy SooHoo, a Minneapolis couple, broke up after 22 years together. During their long relationship, Johnson adopted two children from China. SooHoo did not formally adopt the children. After the breakup, SooHoo petitioned for full custody and child support. The trial court refused to award custody, but gave the non-adopting former partner the right to visit the children two afternoons a week and alternating weekends and holidays, including Mother’s Day. The Minnesota Supreme Court affirmed the visitation order, holding that an ex-partner has the right to see the children if the children were bonded with the ex-mate.

Unlike Iowa, Minnesota has a so-called “third-party visitation statute” which permits, under certain conditions, a third-person not legally or biologically related to a child to have visitation. The constitutionality of that statute was at the center of the Minnesota case.

Sperm Donor and Both Parents Liable for Support (Pennsylvania)

An April 30, 2007, decision by a Pennsylvania appellate court establishes three (3) adults as liable for child support. A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes might be the first of its kind in the U.S. The appellate court ordered the trial court establish how much Carl L. Frampton Jr. would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl.

“I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation,” said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.

In another twist to the case, the donor died during the litigation. Jodilynn Jacob, 33, and Jennifer Lee Shultz-Jacob, 48, moved in together as a couple in 1996, and were granted a civil-union license in Vermont in 2002. In addition to conceiving the two children with the help of Frampton — a longtime friend of Shultz-Jacob’s — Jacob also adopted her brother’s two older children, now 12 and 13. But the women’s relationship fell apart, and Jacob and the children moved out of their Dillsburg, Pennsylvania, home in February 2006.

Shortly afterward, a court awarded her about $1,000 a month in support from Shultz-Jacob. Shultz-Jacob later lost an effort to have the court force Frampton to contribute support — a decision that the Superior Court overturned April 30.

Jacob, who now lives in Harrisburg, said Frampton provided some financial support over the years and gradually took a greater interest in the children. “Part of the decision came down because he was so involved with them,” Jacob said Wednesday. “It wasn’t that he went to the (sperm) bank and that was it. They called him Papa.” The process was very informal — Jacob was inseminated at home.

In his written opinion requiring Frampton to help pay for the child’s support, Superior Court Judge John T.J. Kelly Jr. noted that Frampton spent thousands of dollars on the children, including purchases of toys and clothing. The children knew he was their biological father, but Frampton opposed the effort to compel support from him.

“We made the argument that, according to Pennsylvania law as it stands, there can really only be two adult individuals that can be held liable for support in a child-custody case,” said Frampton’s lawyer, Matthew Aaron Smith.

Shultz-Jacob’s lawyer, Heather Z. Reynosa, wants Frampton’s support obligation to be made retroactive to when Jacob first filed for support. Frampton’s Social Security survivor benefits may also help reduce Shultz-Jacob’s monthly obligation.

It is unclear how the child-support guidelines, which assume two parents, will be adapted to account for three parents. “That’s what’s going to be interesting, because there’s not a whole lot of guidance out there,” Reynosa said. The state Supreme Court is currently considering a similar case, in which a sperm donor wants to enforce a promise made by the mother that he would not have to be involved in the child’s life. That biological father was ordered to pay $1,520 in monthly support. About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.

Note: The above was compiled from various news articles. The full decision can be found here.

Connecticut Supreme Court Decision Granting Same-Sex Marriage

The Connecticut Supreme Court has issued a decision (PDF here) holding that a separate-but-equal civil union scheme is a violation of the Connecticut state constitution’s equal protection rights. An excerpt of the opinion:The characteristic that defines the members of this group — attraction to persons of the same sex — bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.The Iowa Supreme Court hears oral arguments in the Varnum case on December 9th in Des Moines.