Modern life stretching family law
US courts grapple with nontraditional custody issues.
CHICAGO — John Huddleston isn't married to Margaret Torres and never has been. Both of them agree he's not the father of her 3-year-old boy.
But that's where their agreement ends. Mr. Huddleston has filed a lawsuit arguing that he should have visitation rights, based on a voluntary paternity form he signed when the child was born, and on his commitment to caring for the boy. But Ms. Torres no longer wants him involved in her family life.
Welcome to parenting law, 21st-century style. Things have changed a lot since the days when the typical conundrum involved verifying the identity of a father. From California to Pennsylvania, other cases are rivaling or exceeding Huddleston's in complexity.
The legal tangle is driven by converging technological and social forces: the rise of surrogates and egg or sperm donors; same-sex parenting; grandparents or even nonrelatives who act in caregiving roles.
As courts grapple with evolving definitions of family, experts say the result is a growing foothold for relatively new legal principles: "de facto" and even "psychological" parenthood, and the importance of weighing the intent of those involved in a child's conception and birth.
"Courts are more willing now to try and think creatively about the issues of parenthood and family because [nontraditional arrangements] are a much more common thing," says David Meyer, a family law expert at the University of Illinois in Urbana-Champaign. "Family law cases, which for a long time were regarded as not very interesting from a theoretical point of view, are becoming much more complex."
Consider a few recent cases:
• In California, a woman had twins using an egg her lesbian partner donated. For six years, the two raised the girls as a family, sharing responsibilities and listing both women as mothers on official forms. When they split up, the birth mother took the twins to Massachusetts, and the egg donor discovered she had no rights; the standard hospital form she signed, meant for anonymous donors, included a statement relinquishing parenthood. The California Supreme Court will decide this month if it will review the decision.
• Also in California, a woman last week won a $1 million lawsuit against the fertility clinic which implanted her with the wrong embryo, mistakenly giving her one created using another client's sperm (rather than sperm donated anonymously) instead of an embryo from two anonymous donors. She learned of the error after her son was born, and has been engaged in a custody battle ever since. The sperm donor and his wife - who had another child from the same batch of embryos - insist the boy is their son. The woman who bore him considers him hers. A judge declared her the mother, the sperm donor the father, and the donor's wife no relation.
• In Pennsylvania, four different people are claiming to be the parents of triplets born last November: the surrogate, the egg donor, and the couple who hired the surrogate. So far, the judge has given the surrogate mother primary custody, though a final decision is still pending.
• In the Illinois case, Torres asked Huddleston, a former boyfriend, to sign a voluntary paternity form even though there was no possibility the boy was his. Huddleston gave the boy his last name, helped with some finances, and saw him several days a week for two years. Now, the mother wants to cut off the relationship.
Faced with these puzzles, a number of state court systems have accepted the controversial concept of "de facto" parenthood. "Psychological parenthood" - a still more nebulous notion - has taken hold in a few states, notably New Jersey, Massachusetts, and Rhode Island. It refers to a person who isn't biologically related but has had custody for a certain length of time and has a parent-like bond.
About half the states have allowed second-parent adoption, a procedure that helps solidify a lesbian or gay couple's legal ties to their child. In states that prohibit it, the partner who isn't related through biology or adoption often has no legal parenting status whatsoever.
Often courts look to intent - what the adults involved sought for the child-rearing arrangement - as a decisive factor. But intent isn't always easy to establish.
Take the case of the California twins. E.G., the mother who currently has custody, says that she always intended to be a single parent with sole legal rights, and that her former partner, K.M., agreed to that. K.M. counters that everyone - school officials, doctors, friends, family, and the twins - saw them as a two-mother family. The twins called her Momma, or Momma Boss; she and her partner shared all responsibilities, and she gave them baths and read to them every night.
"They saw us as a family," she says. "This is an incredible tragedy, when children lose one of the two people who love them more than anything in the world." She hasn't been able to communicate with the girls since March.
Jill Hersh, K.M.'s attorney, is convinced the case wouldn't even be an issue if her client wasn't a lesbian. "If they were married, the donor document would have been irrelevant, and if they were unmarried, but a man and a woman, they wouldn't let the man off the hook," she says. Ms. Hersh cites a recent Southern California case where an unmarried man, living with a woman and helping to raise her child, was judged a legal parent.
If the courts often seem quicker to establish fatherhood than motherhood in cases of uncertainty - occasionally requiring child support from someone who thought he was just a sperm donor - it may be partly due to history.
"There's a much longer and more central record of men being held responsible," says Professor Meyer. "It's a much newer issue to be presented with women who are seeking recognition.... It's a legal problem with less legal precedent."
The question remains unsettled. A Pennsylvania ruling took a different tack on this issue, Meyer notes. It held that a former partner in a lesbian couple (who was not the biological mother) owed child support because, as a matter of intent, she was involved in creating the child.
In a famous California case, five different people were involved in creating Jaycee Buzzanca - the egg donor, the sperm donor, the surrogate, and the couple who hired all three - yet a judge in 1998 declared the child parentless, after the couple's recently divorced husband declared he didn't want Jaycee. Eventually, the couple was deemed responsible.
Such cases represent fascinating puzzles, mind-bending conundrums of science and law in which a woman can give birth to her sister or granddaughter, and multiple people are involved in a child's conception. But get into any of the cases more deeply, and they also reveal emotional, and often painful, situations.
Courts usually aim to act in the best interest of a child, but occasionally that's not the case. In the case of the twins, for example, judges said they were bound by precedent to determine who was the intended parent. K.M. says the decision in her case shocked her: "They ruled on case law that is so far behind the families of today, [not on] what they knew would be the best interest of the children." But she says the knowledge of what she and the twins share helps. "No court, no judge, no panel of justices," she says, "will ever take away the fact that I will always be their mother, they will always be my children, and we will always love each other."