The Next Chapter in the LGBT Custody Book

UPDATE: The National Center for Lesbian Rights, who represented Kim Smith in her battle for parental rights announced today that, due to the nature of their relationship at the time the twins were conceived, both women will be recognized as legal parents of the twins. March 6, 2010.

Recent legal history is full of shining examples of why vague legal language leaves LGBT families with zero guarantee of protection. Most state laws are silent on how to treat a non-bio mom, or a directed donor, or a gestational surrogate, or a second-parent. With no law to rely upon, judges are flying by the seat of their robes.

The good news is not all judges think a non-traditional family unit is bad. A judge in Florida (of all places!) left custody of a young man in the hands of his two moms, rejecting the donor's argument that "responsibility for the child should be awarded to the mother and father equally." Although the donor's name had been put on the birth certificate, Judge Leon Firtel found him to be nothing more than a sperm donor, and therefore not in a position to pursue legal parental rights. (That doesn't mean the donor can't see the kid, just that he can't sue for custody.)

And in Texas (Texas!) an appeals court reversed its own ruling, and recognized a non-bio mom as "a person" (that's nice) who was intended to have a consistent and continuing relationship with her daughter, despite the fact that she had split from the girl's biological mom. She now has legal standing to sue for partial custody.

The awesome pattern emerging here is that these judges ignored gender (and genetics) and focused on the intention of the original family unit. By defining "parents" as a pair of people who together decide to raise a child, regardless of biological connection, judges are (usually) able to calmly and rationally determine who can, and can't, fight for parental rights. I only hope that the folks in Santa Cruz family court are paying attention.

Here are the facts in the newest custody case to pop up: Kim Smith and Maggie Quale were together when Maggie gave birth to twin boys, using sperm donated by a friend, Shawn Wallace. The two women planned on raising the boys together -- both of their names are on the boys' birth certificates -- until things went sour and they split. Here's the twist: Maggie is now dating Shawn (the boys' other biological parent) and the two of them are fighting for sole custody.

The one thing the law is clear about is that parental rights can only be granted to two people at a time. Under California law, Kim's parental rights are established, and they are hers to be taken away by court order. California has some of the best laws on the books to protect the non-bio mom, and Kim Smith is undoubtedly relying on every single one of them to preserve her relationship with the twins. Considering courts have ruled in favor of biological parents, non-biological surrogates, sperm donors, and second-parents, this one could go either way.

The hearing is set for January 29th. Stay tuned.

Photo credit: seychelles88