California Court Takes on Lesbian Parental Rights Case

In California, a State Supreme Court case will define parental rights for lesbian couples who are no longer together. Should the biological mother have sole legal custody?

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In California, the state's Supreme Court is wrestling with a complicated case involving the parental obligations of lesbian partners who've split up. At issue is who is legally responsible for supporting children in a family where the kids have two mothers. NPR's Richard Gonzales reports.

RICHARD GONZALES reporting:

The court records identify them only by their first names to protect the privacy of the children. But Emily openly shares how she and her ex-partner Elisa once built a family. Here at home in the foothills of California's Sierra Nevada Mountains, Emily gently awakens her seven-year-old son from his afternoon nap.

EMILY: Hi. Well, can we wake up? Are we sleepy? Oh, honey, are you going to wake up?

GONZALES: The boy doesn't speak. He was born with Down syndrome. His twin sister, who is completely healthy, sits nearby.

Unidentified Girl: Can I have some milk, Mama?

EMILY: Mm-hmm. There's some left in the fridge. You can go get some.

GONZALES: Emily says she and the twins are what's left of a broken family. They are her biological children. She conceived them after being artificially inseminated. At about the same time the twins were born, Emily's partner, Elisa, gave birth to a son, also the product of artificial insemination.

EMILY: We both wanted to be birth parents. We both wanted to use the same donor so the children would be biologically related, so that they'd be brothers and sisters. We both absolutely intended these pregnancies. That was never a question for us.

GONZALES: Emily says she was a stay-at-home mom while Elisa was the family breadwinner. But when the couple broke up, Elisa left with her biological son, and soon Emily was on her own with the twins. That's how the state of California got involved, demanding support payments from Elisa on the basis that she was a parent to the twins, even though they aren't her birth children. Kara Read-Spangler is a state attorney arguing on Emily's behalf.

Ms. KARA READ-SPANGLER (California State Attorney): All children are entitled to support from both people who intentionally brought the children into the world. And all children are entitled to support from a person who intentionally creates a parent-child relationship when she takes the children into her home and holds them out as her own.

GONZALES: But attorney Shelley Hanke says Elisa never promised to be the parent of Emily's twins and shouldn't have to support them.

Ms. SHELLEY HANKE (Attorney): If the legislature intended for same-sex partners and their progeny to be a family unit, then the legislature would define it so it would not be up to this court to stretch the existing laws.

GONZALES: In California and most other states, the laws are murky in cases such as this one involving a lesbian couple who lived as a family but were not officially domestic partners. As their dispute was debated before the California Supreme Court, Justice Ming Chin seemed to agree that both women once acted as the children's parents. He noted that while Elisa now claims no responsibility for the twins, she once listed them as dependents on her tax returns.

Justice MING CHIN (California Supreme Court): And didn't she name Emily as the beneficiary of her life insurance?

Ms. HANKE: At one time, yes, Your Honor.

Justice CHIN: And didn't they both breast-feed all three children?

Ms. HANKE: Yes, Your Honor.

Justice CHIN: What is this beginning to sound like to you?

(Soundbite of laughter)

Ms. HANKE: None of that rises to the legal definition of parent.

GONZALES: That's the key argument from Elisa's attorney, Shelley Hanke, that just because the two women lived together as a couple doesn't mean they were the co-parents of each other's biological children. While the California Supreme Court considers this case, it's also looking at two others involving child custody and support issues between estranged lesbian partners. Whatever the justices decide may help chart a legal path for a new kind of family dispute that's still rare but becoming more common. Richard Gonzales, NPR News, San Francisco.

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