California Attorney Lawyers

California’s highest court was asked to create a legal framework for what constitutes a family as justices weighed parental rights for lesbian couples who broke up after having children.

The state Supreme Court, hearing oral arguments Tuesday in the cases of three women seeking child custody or support from their former partners, pondered whether children from same-sex households should be treated the same under the law as out-of-wedlock offspring of heterosexuals.

Attorneys for some of the women and the California attorney general argued that children should be given the same protections they would have with two traditional parents, since gays cannot marry and may have legitimate reasons for not registering as domestic partners or formally adopting their children.

They urged the court to apply long-standing laws governing absent fathers to estranged gay and lesbian couples who used reproductive science to conceive, a practice that leaves one partner without a genetic link to the family.

“In every situation where possible, parentage should be established,” said Shannon Minter, legal director for the National Center for Lesbian Rights, arguing on behalf of a woman who wants to share custody of the daughter her ex-partner conceived with a sperm donor. “It seems very unfair to this particular group of children to say that when assisted reproduction results in being born to unmarried same-sex couples, we can’t establish parentage.”

On the other side are two women seeking to retain sole custody of their children and one who argues she shouldn’t have to pay child support for her former lover’s twins. Their lawyers warned that if someone without a biological, marital or adoption-related claim on a child can legally assert parental rights, it would open the door to all sorts of custody disputes.

“There will be no limit to the numbers of companions, be they related or not, to single parents making claims of parentage,” said Diana Richmond, representing a woman seeking sole custody of the twin girls she bore with her former partner’s donated eggs. “This court would be substituting its judgment for what’s better for the children than the judgment of the parent. ”

Several justices seemed inclined to side with the women who want their former partners to live up to the co-parenting arrangements they made when starting a family.

“The Legislature states there is a compelling state interest in establishing paternity for a child,” observed Associate Justice Joyce Kennard.

Noting that Elisa B., the woman trying to avoid paying child support to her partner’s twins, breast-fed the babies, took time off work to care for them, and listed her partner as a dependent on her insurance and tax returns, Kennard said it seems as if she functioned as a “presumed parent.”

“Here, there was a holding out of the party as the parent of the twins,” Kennard said.

But several other justices appeared worried about permitting someone to make a claim to parenthood simply because that person participated in the planning of a pregnancy and helped care for a child. A boyfriend, for instance, could claim to be the father of the child his girlfriend had with another man.

“That seems to open up a lot of possibilities for intrusion on the parent role by all sorts of people, practical strangers,” Associate Justice Janice Brown said.

In a sign of the broad acceptance same-sex parents have in California, the state attorney general’s office supported the mothers who asked the justices for an updated interpretation of the state’s parental rights laws. Several child-advocacy organizations filed friend-of-the-court briefs taking the same side.