Custody Battle


The California Supreme Court is hearing cases regarding whether or not a lesbian mother who has no biological connection to her child can receive joint or partial custody. Opponents of granting such rights argue that since one parent has no biological connection to the child, anyone who had a hand in raising the child or even planning the pregnancy could claim parental rights.

In this era of advanced reproductive technologies, the only person harmed by such ambiguity in the law is the newborn child that everyone says they want to protect. We know that "being a parent" isn't about the biological relationship, but the emotional relationship. Why remove that distinction when it comes to homosexual couples?

NEXT: All Hail the Great Compromise!

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  1. We know that “being a parent” isn’t about the biological relationship, but the emotional relationship.

    We do?

    This would seem to validate the argument you cite, “anyone who had a hand in raising the child or even planning the pregnancy could claim parental rights.”

  2. Just another case of murky law made murkier in an attempt to un-murk the murk that was created by the murky law to start with.

    As a former stepdad in a live-in arrangement I can vouch for the emotional upheval with respect to being sliced out of the kid’s lives (on both ends). It sucks when you have no legal standing.

    OTOH, it would seem if the child bearing process was entered into by both parties with the expectation of raising a family together I don’t see the problem with collecting support or awarding visitation rights.

    I don’t know how a heterosexual couple in the same boat would be treated by the law or if there ever has been an unmarried hetero couple that went for the family the scientific way.

    Speaking of biological connections. They sure ought to toss that antiquated law that stipulates that a married man is the father of any child born to his wife so long as he’s legally married to her regardless of actually paternity.

  3. The concept of “parental rights” has been eroding steadily for several decades and is giving way to the concept of “best interests of the child”. Formerly, children were analogous to property in which parents had rights, and now children are seen as having their own rights and interests to which the parents’ rights are subservient. In a way, the state is becoming the parent of every child, and the biological or adoptive parents are simply permitted to care for the child by sufferance. If this trend continues, it may be possible for anyone to seek custody of or visitation with any child where it can be argued that the child’s interests are at stake.

    The problematic aspect of this trend is the increased power of the state to intervene in the parent child relationship and what were traditionally private domestic affairs. The cost of doing justice to this woman and this child in cases like the one cited may be too high in terms of the erosion of privacy and individual liberty.

  4. Did the “mother” in question adopt the child, or not? I thought it was standard practice (in CA at least) for the non-birth mother to adopt the child. I’ve seen cases where one woman donates an egg, and the other is the surrogate mother. This strengthens the claim of both.

    If one woman gave birth, and the other didn’t bother to get the documents signed, then she’s no different from a live-in nanny. Legally, anyway.

  5. Just another case of murky law made murkier in an attempt to un-murk the murk that was created by the murky law to start with.

    That’s the best summary we’re likely to get. A toast to The Wine Commonsewer.

    The lesson is for people to plan these things out ahead of time. Set up a contract, stipulating who has what rights/responsibities(shouldn’t leave those out) to the child if the relationship fails.

  6. The need to have bright line between a non-biological parent, and everyone else, is yet another reason why the states need to recognize some kind of legal status for gay couples.

  7. joe – you and I might agree, but the folks who don’t only disagree because they don’t want gay people raising kids, period. Sure, most Americans would probably be ok with some sort of ‘civil union’ thing for gay couples, but the hard-core religious nuts who think gay people are evil and that you can somehow turn someone gay will never think it’s a good idea.

  8. If you want parental rights, you need to take on parental obligations. If the non-birth mother didn’t adopt the child, then she took on no parental obligations, and should have no parental rights.

    We know that “being a parent” isn’t about the biological relationship, but the emotional relationship.

    Tell that to all the fathers out there who are being stuck with child support for children who they have no contact with, many times because the court prohibits them from having any contact. Of course, this is the mirror image of the above situation, because the man is charged with parental responsibilities without having parental rights.

  9. RC,
    Of course, there are the dads that have to pay child support for kids they didn’t know weren’t theirs and raised them for some years. Then there was some breakup and a discovery of the child not being theirs but they are still stuck with the payments.

  10. Thanks David, and a tip of the glass to your health

  11. Vache Folle
    Dealing with issues surrounding the rights of children gives everyone a headache, especially us libertarians who aren’t used to thinking of political problems in paternalistic terms. This is one area where I am comfortable with increased state power, since it means acknowledging that children are not the property of their parents but citizens deserving of rights and protections.

    1. But when a parent use the judicial system to terminate the rights of the other parent by terrorizing the child and create false allegations because the father has money and use the child as a conduit, he treats the child as his property or pawn, and nobody does anything

  12. Philip Larkin – This Be The Verse

    They fuck you up, your mum and dad.
    They may not mean to, but they do.
    They fill you with the faults they had
    And add some extra, just for you.

    But they were fucked up in their turn
    By fools in old-style hats and coats,
    Who half the time were soppy-stern
    And half at one another’s throats.

    Man hands on misery to man.
    It deepens like a coastal shelf.
    Get out as early as you can,
    And don’t have any kids yourself.

  13. Till they do drugs or kill themselves.

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