[QL] 3 articles on parental rights
Texas Court Upholds Lesbian Partner Adoption
by 365Gay.com Newscenter Staff
Posted: November 28, 2004
http://www.365gay.com/newscon04/11/112804txAdopt.htm
(Galveston, Texas) A Texas appeals court has
upheld a Galveston lesbian's adoption of her
former partner's biological daughter.
The birth mother, Julie Anne Hobbs, has appealed
a district judge's ruling last month that Hobbs'
ex-partner, Janet Kathleen Van Stavern had equal
parenting rights. (story)
Hobbs had become pregnant through artificial
insemination. The man who donated the semen
voluntarily terminated his parental rights and
Van Stavern legally adopted the girl when she was
a 3-years old.
Hobbs and Van Stavern's eight-year relationship
ended in March and Hobbs went to court to have
the adoption overturned arguing that Texas law
does not permit co-parenting by same-sex couples.
Van Stavern has continued to provide $400 a month
in child support since her split from Hobbs.
Attorneys for Hobbs, told The Galveston County
Daily News that the ruling cited problems with
the form of the appeal, not its merits, and that
they would consider appealing the decision to the
Texas Supreme Court.
©365Gay.com 2004
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2. Lesbian 'parents' given status under law
By The Associated Press
(Evansville Courier & Press)
November 28, 2004
http://www.courierpress.com/ecp/news/article/0,1626,ECP_734_3359384,00.html
INDIANAPOLIS - Lesbian partners in Indiana who
agree to conceive a child through artificial
insemination are both the legal parents of any
children born to them, the Indiana Court of
Appeals has ruled.
In its unanimous ruling, the court chided state
lawmakers for being slow to deal with advances in
reproductive technology and urged the General
Assembly to address the "current social reality"
of unconventional families.
"No (legitimate) reason exists to provide the
children born to lesbian parents through the use
of reproductive technology with less security and
protection than that given to children born to
heterosexual parents through artificial
insemination," Judge Ezra H. Friedlander wrote in
the ruling issued Wednesday.
"Our paramount concern should be with the effect
of our laws on the reality of children's lives."
The court's decision overturns a ruling by a
Monroe Circuit Court judge who found that a
Bloomington woman, Dawn King, had no legal
standing with the girl born to her former
partner, Stephanie Benham, because King was not a
biological parent.
Fran Quigley, executive director of the Indiana
Civil Liberties Union, called the ruling "an
important first step" in providing legal
protection to parents and children of
nontraditional families.
Courtney Joslin, an attorney with the National
Center for Lesbian Rights in San Francisco, said
appellate courts in about a dozen states have
issued similar rulings.
The decision is likely to have an impact on
future custody and child support cases, and
issues such as access to health insurance and
inheritance through the non-biological parent,
said Joslin and Quigley.
Previously in Indiana, the only way for same-sex
partners to each attain legal parent status was
through a "second-parent adoption" - a costly
undertaking that grants parental rights to a
non-biological parent.
However, some judges in Indiana have refused to
allow the second-parent adoptions for same-sex
partners.
This week's ruling does not address a challenge
to Indiana's ban on same-sex marriage that is
pending before the state Court of Appeals. But
Micah Clark, executive director of the American
Family Association of Indiana, a group that
promotes the traditional concept of family, said
"this essentially renders marriage and fathers
meaningless."
Fishers attorney Sean C. Lemieux, who represented
King, said the case is about the rights of
parents and children and was based on a state
Supreme Court ruling involving a married
heterosexual couple that had a child through
artificial insemination.
Lemieux said the court stopped short of setting a
standard for what constitutes a nontraditional
parenting partnership, something that still must
be resolved.
In King's case, he said, the existence of a partnership was clear, he said.
King and Benham shared their home, lives and
finances for nine years. Benham was impregnated
with semen donated by King's brother and King was
present and participated in the child's birth.
The little girl, now 5 years old, recognized both
women as her mothers, calling King "momma." After
the pair split in January 2002, King paid child
support and had regular visits with the child
until July 2003, when Benham stopped accepting
the support and denied King visitation.
© 2004 The E.W. Scripps Co.
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3. 'Landmark' decision in lesbian custody case
Vt. judge rules both partners in civil union are parents
By LOU CHIBBARO JR.
Washington Blade
Friday, November 26, 2004
http://www.washblade.com/2004/11-26/news/national/landmark.cfm
A Vermont judge ruled on Nov. 17 that both
partners in same-sex civil unions performed in
that state become automatic legal parents of a
child, regardless of which partner gives birth to
or adopts the child.
The ruling, which legal observers called a
landmark decision, was issued in response to a
bitter child custody dispute between two lesbians
from Virginia who entered into a Vermont civil
union in 2000.
The two women, Lisa Miller-Jenkins, 35, who
currently lives outside Winchester, Va., and
Janet Miller-Jenkins, 39, who lives in Fair
Haven, Vt., separated in September 2003. The
separation came two years after Lisa
Miller-Jenkins gave birth to the couple's
daughter through artificial insemination.
The dispute has led to a showdown between courts
in Vermont and Virginia, where Vermont's civil
union law is being pitted against Virginia's
anti-gay Marriage Affirmation Act, which bans
legal recognition of all forms of same-sex
relationships.
Lisa Miller-Jenkins has invoked the Marriage
Affirmation Act, which took effect July 1, in an
attempt to bar her former partner from visiting
the child and from playing any role in the
child's upbringing.
Judge William D. Cohen of the Rutland County,
Vt., Family Court, earlier this year awarded Lisa
Miller-Jenkins primary custody of the child while
granting Janet Miller-Jenkins visitation rights.
At the time, relations between the two remained
cordial, and Lisa Miller-Jenkins did not raise
objections to her former partner's interest in
visiting the child, according to Joseph Price, an
attorney representing Janet Miller-Jenkins.
New Va. law sparks dispute
The couple and the child, 2-year-old Isabella,
had been living together in Vermont. Price said
it was Lisa Miller-Jenkins' idea that they move
from Virginia to Vermont in July 2002, when both
agreed that Vermont provided a more favorable
environment for a lesbian couple. When the couple
split up in September 2003, Lisa Miller-Jenkins
and Isabella moved to Hamilton, Va., near
Winchester, under a separation agreement worked
out jointly and amicably through a proceeding
with Judge Cohen's court in Rutland.
The cordial relations between the two women ended
suddenly on July 1 when Lisa Miller-Jenkins
declared she was no longer a lesbian and filed
court papers in Virginia seeking sole parental
rights to her daughter under the state's Marriage
Affirmation Act. The act took effect that same
day. Lisa Miller-Jenkins also sought help from an
"ex-gay" organization in Vermont and from
anti-gay rights groups in Virginia in her quest
to obtain sole custody rights to her daughter. In
response to a motion filed by her attorney, a
judge in Virginia ruled that Lisa Miller-Jenkins
is the child's "sole parent."
Judge John R. Prosser of the Frederick County,
Va., Circuit Court declared that his court,
rather than the Vermont family court, had
jurisdiction over the case under the Marriage
Affirmation Act.
The Republican-controlled Virginia Legislature
passed the Marriage Affirmation Act last year by
a lopsided margin. At the time, Democratic Gov.
Mark Warner attempted to amend the bill to exempt
private contracts from the law while retaining
its ban on same-sex marriage or civil unions. But
the assembly rejected those changes by a
veto-proof margin.
In his latest ruling on Nov. 17, Judge Cohen in
Vermont rejected Prosser's ruling, saying his
court has jurisdiction over the case.
"Parties to a civil union who use artificial
insemination to conceive a child can be treated
no differently than a husband and wife, who,
unable to conceive a child biologically, choose
to conceive a child by inseminating the wife with
the sperm of an anonymous donor," Cohen wrote in
his ruling.
Cohen added that the argument by an attorney for
Lisa Miller-Jenkins, that Janet Miller-Jenkins
has no legal parental rights unless she adopts
the child, "is without merit."
Cohen agreed to arguments by attorneys
representing Janet Miller-Jenkins that both the
Vermont civil union law and a federal statute
called the Parental Kidnapping Prevention Act of
1980 gave the Vermont court clear jurisdiction
over the case. Cohen based this opinion on the
fact that both women initially filed jointly for
a separation in their civil union in the Vermont
court system, a development that places the case
in Vermont rather than in a state in which one of
the two partners moves.
"This is clearly the right interpretation of the
law," said Price, Janet Miller-Jenkins' attorney.
"My client is being treated like any other parent in this situation," he said.
Two states disagree on jurisdiction
But Price, who chairs the board of the statewide
gay rights group Equality Virginia, acknowledged
that Judge Cohen currently has no powers to force
Lisa Miller-Jenkins to comply with his latest
ruling and his earlier order that Janet
Miller-Jenkins be allowed to visit Isabella in
Virginia. In September, upon learning that Lisa
repeatedly refused to allow Janet to visit the
child, Cohen declared Lisa in contempt of court.
The contempt order could lead to a fine, jail
time, or a reversal of the custody agreement for
Lisa if the Virginia courts eventually concede
jurisdiction to Vermont or if a federal court
decides that Vermont has jurisdiction in the case.
Attorneys representing Lisa Miller-Jenkins did
not return phone calls by press time.
Price said Janet Miller-Jenkins is appealing the
ruling of Judge Prosser of the Frederick Circuit
Court to the Virginia Court of Appeals. Price
said he is hopeful that the appeals court will
reverse Prosser's ruling on grounds that Prosser
failed to correctly interpret the federal
"parental kidnapping" statute, which places
jurisdiction in custody cases with the court that
first hears such cases.
Any legally correct ruling would have to concede
jurisdiction to Vermont, Price said.
He said both sides would most likely appeal an
unfavorable ruling to the Virginia State Supreme
Court. An unfavorable ruling there might prompt
either side to appeal to the U.S. Supreme Court,
according to Price.
But he said the case, in the unlikely event that
the U.S. Supreme Court agrees to take it, would
center on a "parochial" issue of state
jurisdiction over a child custody matter. It
would not address the issue of civil unions or
same-sex marriage, Price said.
Last summer, the Center for American Cultural
Renewal, an organization calling for the repeal
of Vermont's civil union law, announced it was
funding Lisa Miller-Jenkins' legal efforts to
obtain sole parental rights of her child. In a
fund-raising letter, the group condemned Janet
Miller-Jenkins for "exploiting" the child to
"further the extreme ideology of the radical
homosexual agenda." The letter included a photo
of Janet Miller-Jenkins and Isabella.
Lou Chibbaro Jr. can be reached at lchibbaro@washblade.com.
© 2004 | A Window Media Publication
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