Laws Mean Lesbian Custody Battles Often Are One-Sided

The message on Georgia Prescott’s home answering machine includes two names, Prescott’s and a child’s.

“I always keep that there,” Prescott says matter-of-factly, even though she has not seen the youngster for years, much less lived with her. “I want her to know that she always has a home here. . . . The other reason is to remind me that I still have a daughter and no one can take that away from me.”

The child, conceived through artificial insemination, was born to Prescott’s lesbian partner during the couple’s decade-long relationship. For five years the three were a family.

Yet in the eyes of California law, Prescott is a stranger to the girl, related by neither blood nor adoption, a person who was never even married to the child’s biological mother.

When her former partner ended all contact between Prescott and the girl after the couple broke up, there wasn’t a thing Prescott could do about it. A Superior Court and state appeals court rejected her bid for parental rights. In 1994 the state Supreme Court refused to review the case.

Across the state and the nation, there are more and more cases like Prescott’s, the messy flip side of the past decade’s boom in gay parenting.

Gay legal groups that typically devoted their energies to helping once-married homosexuals keep their children in the face of anti-gay challenges by heterosexual ex-spouses are now facing an altogether different scenario: lesbians fighting lesbians over children born or, in some cases, adopted during relationships gone sour.

“In the last six months we probably hear about one of these cases a week, which causes me no end of distress,” said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.

She describes the cases, which usually involve women rather than men, as “numbingly similar.”

Couple meet, fall in love and--thanks to artificial insemination--decide to start a family. One partner will often inseminate the other. The baby will frequently carry the name of the non-biological mother and both women will be actively involved in parenting.

Couple break up, share the child’s custody for a while. Then the biological mother, often after forming a new relationship, starts limiting her former partner’s visits with the child, sometimes stopping them altogether. The woman discovers that however long the child may have called her “mom,” she is a nobody to the law.

The courts’ rigidness in defining parenthood comes at a particular cost to gay families, advocates argue, because homosexuals are locked outside the law’s conventions. They cannot marry, cannot both be biological parents and, depending on where they live, may or may not be able to adopt.

*

Prescott’s “daughter lost a parent in a really horrible way,” said Santa Rosa attorney Caren Callahan, who represented Prescott. “The court is creating a fiction to not deal with the reality of our families. And we need to address that issue.”

These cases are painful to advocates in other ways as well. They see gays who formed families without the blessing of society or the law subsequently invoke the law’s traditional view of families to fend off a former lover’s parental claims.

“It is classic hypocrisy,” Kendell asserts, “for a lesbian or gay couple to march down the street waving banners in favor of legal recognition for their relationship while they’re blissfully happy and then, on the event of . . . a breakup, for one of the partners to claim that no relationship worthy of legal protection or recognition ever existed.”

Berkeley attorney Carol Amyx, who has represented the biological mother in several lesbian parenting disputes, including Prescott’s, sees no such nuances, only the law.

“The word parent refers to someone who has given birth to or fathered a child” or legally adopted, Amyx says. “And people who aren’t one of those things aren’t parents as a matter of reality and law.”

Lesbian mothers, she adds, have just as much right to raise their offspring as they see fit as straight mothers.

If they want to foster a maternal bond between child and lover and later end it--as she says her clients did because they no longer considered the relationships healthy for their children--that is their prerogative.

“Children are raised by their parent and the parent may make good or bad decisions for them,” Amyx continued. “But unless parental custody is seriously detrimental to the children . . . the children are just stuck with them.”

So far, California courts have agreed with her.

In a 1991 ruling in one of Amyx’s cases--known as Nancy S.--a state appeals court rejected arguments that a Northern California lesbian should be given legal standing to seek custody or visitation because she was the de facto parent of two children born to her former partner during their relationship.

While the court termed the woman’s situation “tragic,” it refused to expand the definition of parent to include her.

To do so, the appeals panel wrote, “could expose other natural parents to litigation brought by child care providers of long standing, relatives, successive sets of stepparents or other close friends of the family.”

The solution, the court suggested, was adoption by the non-biological mother.

That is far from a sure thing, however. Judges in the Los Angeles and Bay Areas have in recent years allowed gays to adopt a partner’s biological child as a co-parent and also permitted both members of a gay couple to adopt the same child.

But elsewhere in the state, prospects of obtaining second-parent adoptions, as they are called, are far chancier. And Gov. Pete Wilson’s administration has proposed regulations requiring agencies to recommend against adoptions by the unmarried.

Even as the Nancy S. appeals decision has proven an enormous obstacle to advocates attempting to carve a place in California law for non-biological gay parents, they have achieved scattered victories elsewhere in the nation.

Courts in six states--including the Wisconsin Supreme Court--have granted some form of legal standing to lesbians who are neither biological nor adoptive mothers, recognizing a parent-like relationship between them and children they helped raise, Kendell said.

The women have generally won some level of visitation, though not custody.

In one of the strongest opinions, a Pennsylvania Superior Court last fall concluded that the biological mother’s rights “do not extend to erasing a relationship between her partner and her child, which she voluntarily created and actively fostered, simply because after the parties’ separation she regretted having done so.”

A child’s best interest dictates that legal standing be given a person with whom “the child has established strong psychological bonds,” the court wrote, and who “has lived with the child and provided care, nurture and affection, assuming in the child’s eye a stature like that of a parent.”

Encino attorney Glen H. Schwartz has successfully advanced a similar theory in a number of groundbreaking California cases in which he has won paternity rights for men unrelated to children they had a parental role in heterosexual relationships.

“These are cases in which a very significant relationship was established and the child came to believe through the conduct of all parties that [the unrelated man] was the father,” Schwartz says. “I think we’ve come to recognize that parentage does not begin and end with biology.”

Schwartz has made those same arguments in a gay custody dispute--and gotten nowhere.

His client is Tena Clark, a Los Angeles music producer from Mississippi who for five years parented a girl born to her partner, Dell Pearce, and then shared custody equally for another three years after the couple’s breakup.

Clark says that when the child was 8, Pearce said she was moving about an hour away and “that now I would only see [the child] every other weekend and every other Thursday and I had no choice about it.

“For the first time,” Clark adds bitterly in a soft southern drawl, “the big word came. She was the biological mother.”

*

Clark, who continues to see the now 10-year-old child on the alternate weekend schedule, filed a lawsuit last year to gain parental standing, only to have a Los Angeles Superior Court judge reject the bid as having no basis in law.

Pearce’s attorney, Diane Goodman, termed the case a private matter that neither she nor her client wished to discuss.

Schwartz continues to press Clark’s claim, trying to persuade the court to grant his client visitation or custody rights, even though it will not recognize her as a legal parent.

“I thought I’d win Tena’s case easy,” Schwartz says, clearly frustrated that he hasn’t prevailed in a suit he describes as similar to the paternity cases he’s won--only stronger.

Clark and Pearce decided to become parents not long after moving to Los Angeles in 1984 from Nashville, where they had a commitment ceremony before a Methodist minister.

When they found a willing medical group in Santa Monica, Clark performed the insemination in a doctor’s office. Both women’s names were on the birth certificate.

“I cut the umbilical cord. I went to every Lamaze class. I went to every doctor’s appointment,” emphasizes Clark, 43. “This was our child.”

The couple hired an attorney to draw up an agreement stating that if they split up, they would have joint custody, and if one of them died, the child would stay with the survivor.

As Clark and Prescott--who had a similar agreement--learned, such documents are meaningless to family law judges, who generally operate within the context of marriage and biology.

“Children don’t care about biology,” Clark grumbles. “Children care about who loves them, who’s there for them every day and who they know to be their parent.”

Still, judges aren’t the only ones who blanch at the idea of loosening the legal definition of a parent to accommodate nontraditional families.

“If you start to say people who have a social relationship with a child have a legitimate right to maintain that relationship, you have the possibility of all sorts of intrusion into the nuclear family, by grandparents, by friends,” warned UCLA law professor Grace Blumberg, who specializes in family law.

She considers Schwartz’s success in arguing novel paternity theory an aberration--and a troubling one at that.

*

She is nonetheless sympathetic to gay parents. “Clearly the law just doesn’t fit their circumstances.” The answer, she suggests, is to allow gays to adopt and to legalize same-sex marriage.

Indeed, advocates say permitting homosexuals to marry would solve a great deal, since there is a legal presumption that children born during a marriage are the couple’s offspring.

A Hawaii court case may lead to same-sex matrimony in that state, but it is unlikely those unions would be recognized on the mainland without years of fierce legal battles.

Meanwhile, Duke University law professor Katharine Bartlett is attempting to strike a balance between traditional parental rights and contemporary family forms, straight or gay.

As a member of the prestigious American Law Institute, she is drafting child custody guidelines which, if adopted by the organization, would stand as a national model.

Under her proposal, when a couple splits up and custody or visitation issues arise, a non-biological parent would be given standing to pursue access to the child if the adult met certain strict criteria: if he or she had lived with the youngster for a significant period of time and had, with the consent of the biological parent, regularly assumed a substantially equal share of care taking for nonmonetary reasons.

“I think that eventually the law in more places will recognize these parenting relationships,” Bartlett predicted.

That will not help Prescott, who nevertheless remains hopeful she will again see the child she helped deliver 11 years ago. Until then, she says, the answering machine message will remain unchanged.