TWO NEW, BUT OPPOSING, DEVELOPMENTS FOR GAY AND LESBIAN PARENTS:
A Pediatricians' Group Supports Gay Relationships, But A Georgia Court Does Not

Gays and lesbians who have, or who want to have, children often face a morass of legal obstacles and entanglements. If they want to adopt children, they are sometimes prevented from doing so, by law, policy, or practice. If they already have children, they sometimes risk losing them in custody battles, or having to choose between custody and the right to pursue an intimate, adult relationship with a same-sex partner. And whether their children are biologically theirs or legally adopted as theirs, gays and lesbians are often prevented from securing a legal second or co-parent for their child.

As if that were not bad enough, the law in this area is also profoundly uncertain. There are wide state-to-state variations on all of these issues, as well as a significant policy debate on the wisdom of particular laws and practices.

Up to 9 million children in the United States have at least one gay parent; many were conceived in heterosexual relationships, others with the help of reproductive technology. All of these children suffer from the legal uncertainty their parents face.

In the past two weeks, there were two significant developments in this area of the law - but they cut in different directions. First, the American Academy of Pediatrics (AAP), a widely respected organization representing 55,000 pediatricians, took a position in support of second- or co-parent adoptions for gay and lesbian parents.

Second, on January 23, in the case of Burns v. Burns, a Georgia appellate court denied a noncustodial mother the right to cohabit with her civil union partner during periods of visitation with her children, refusing to recognize her Vermont-obtained civil union as a legal relationship.

The AAP's Position on Second-Parent Adoptions

The AAP's position is limited to the situation where a homosexual individual has either given birth to or adopted a child, and wants his or her partner to become a legal co-parent. Because "these families and children need the permanence and security" that "having two fully sanctioned and legally defined parents" can provide, the AAP supports the legal adoption of children by homosexual co-parents.

How novel is this position? According to a recent New York Times article, there is a small but growing group of states in agreement with it. Currently, three states, Vermont, Connecticut, and California, specifically allow what the AAP advocates—that gay and lesbian co-parents be permitted to adopt their partners' children. In at least four other states, Illinois, New York, New Jersey, and Massachusetts, and the District of Columbia, courts have issued opinions that effectively reach the same result, though the statutes in those states do not clearly provide for such a right. On the other side, there are two states, Mississippi and Utah, that prohibit co-parent adoptions, and one, Florida, that prevents homosexuals from adopting children under any circumstances.

The possibility of gay and lesbian co-parenting in the remaining 40 states is unclear. Many of have adoption statutes that limit adoption to "individuals" or "married couples," thus implicitly excluding unmarried gay couples. But courts in some of the states that have allowed homosexual co-parenting, interpreting similarly worded statutes, have somehow managed to interpret them to include gay couples.

Why the AAP Reached This Conclusion

There are two basic conclusions underlying the AAP's support for co-parent adoptions. First, the AAP has concluded that the existing body of scientific literature proves that children with one or two gay parents "fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual." The studies show, according to the AAP, that children are "more influenced by the nature of the relationships and interactions within the family than by the particular structural form it takes." There is thus no reason, the AAP concludes, to deny gays and lesbians the right to maintain or create parent-child relationships.

Second, the AAP concludes that a legally sanctioned co-parent relationship provides important benefits for children. Many of these benefits are economic in nature—inheritance rights, health insurance coverage, Social Security survivor benefits, and a right of child support from both parents in the event of a separation. But perhaps as important, legal recognition of a co-parent gives that co-parent the right to insist on maintaining the parent-child relationship whether or not the parents' relationship with each other survives. Maintaining relationships with both parents following divorce or separation is a primary concern in heterosexual custody cases; similar concerns about the well-being of children make this an important goal for children with gay parents as well.

One potential criticism of the AAP position is that it is expressly limited to children who already have one gay parent. Even people adamantly against gay parenting might agree that two parents are better than one.

A bolder position, to be sure, would have been one that advocated for the rights of gays and lesbians to become parents and maintain parent-child relationships in all circumstances. Moreover, the scientific research the AAP relies on would seem to strongly support this position: If the AAP is correct that children with one or two gay parents fare just as well as children with two heterosexual parents, one would think that would imply that homosexual individuals should have the same rights heterosexual individuals do with respect to all aspects of parenting. But some progress is better than none, and the AAP's advocacy of co-parent adoption is, at least, an important step toward recognition of gay parenting generally.

The Georgia Decision: A Less Hopeful Sign for Gay Parents

The Georgia appellate court that decided Burns v. Burns took a much narrower view of family than the AAP. Darian and Susan Burns had entered into a consent decree following a divorce, which specified that Susan, who was not the custodial parent, would refrain from "overnight stays with any adult to [whom] she is not legally married or to whom [she] is not related within the second degree" during periods of visitation with her three children.

After agreeing to this restriction, Susan and a female partner entered into a Vermont civil union (as I discussed in a previous column, a Vermont civil union is a quasi-marriage status made available to homosexual couples).

Darian subsequently filed a motion for contempt, alleging that Susan had violated the agreed-upon restriction on overnight stays by having her female partner present during visitation. He contended that despite the Vermont civil union, the female partner still counted as "an adult to [whom Susan] is not legally married or to whom she is not related within the second degree" pursuant to the terms of the consent decree.

Visitation Restrictions and Same-Sex Relationships: The Need For Proof of Harm

Restrictions like this—by consent or by order—are not unusual in custody decisions. Courts are hesitant to impose significant lifestyle restrictions on custodial parents because doing so would be such an intrusion on that parent's freedom and autonomy. In contrast, they are less reluctant to restrict the activities of noncustodial parents during periods of visitation, reasoning that noncustodial parents are free to do as they like during other times.

Accordingly, restrictions on unmarried parental sexual activity—both homosexual and heterosexual—are common. The modern trend, however, is toward insisting that there be evidence of an actual nexus between the parent's conduct and the children's well-being, rather than simply a presumption of moral, psychological, or emotional harm. Accordingly, the Supreme Court of Georgia, in a recent case, held that a visitation restriction placed on a father, which prohibited his girlfriend from spending the night during periods of visitation, could not be enforced because there was no evidence of likely harm to the children.

Had this standard been applied in a same-sex case, Susan Burns might have a decent chance of prevailing in having her visitation restriction lifted. Her case would be strengthened by the AAP's position statement, which concludes there is no harm to children being raised by two parents of the same sex. Certainly if full-time living with two parents in a same-sex relationship is not deleterious to children, then visitation with a parent who, like Susan Burns, was in a committed relationship with a same-sex partner, cannot be deleterious either.

But unfortunately for Susan Burns, this standard did not apply - because her restriction on overnight stays during visitation derives from a consent decree, rather than a court order. In a challenge to a court order, the "evidence of harm" standard would have been applied. But in the Burns case, the question was instead one of interpreting the consent decree, much as the court would interpret a contract between two parties.

Interpreting the Consent Decree: Does A Civil Union Count As a Legal Marriage?

Susan Burns's argument was that she and her partner were "married" within the meaning of the decree, and therefore entitled to spend the night together in the presence of her children. Alternatively, she argued, the civil union status was equivalent to a "second-degree" relationship (such as cousin or aunt), and therefore permissible within the terms of the consent decree.

Whether one agrees with this position largely depends on whether one reads the consent degree literally, or with an eye towards its purpose. While it is debatable whether a civil union meant the same-sex partners were "married," it is hard to debate that a committed same-sex relationship cemented by a civil union affords a child much the same continuity and stability that a marriage or a close family relationship would.

The Georgia trial and appellate courts, however, both disagreed with Susan Burns's interpretation of the consent decree. A civil union, they found, is not a marriage, even under Vermont law. And even if it were, the courts further reasoned, the state of Georgia has expressly stated a public policy that recognizes only marriage between a man and a woman. Georgia, therefore, does not have to recognize same-sex marriages even if valid in other states.

The result of all this litigation is to put Susan in the position of having to choose between having visitation with her children and allowing her civil union partner to live with her. The Georgia Supreme Court may take this case, but there is no particular reason to expect it will reach a different result than the state's lower courts did.

One Hopeful Sign, One Defeat, and A Lot of Uncertainty For Same-Sex Couples

While these two developments are important, they are undoubtedly not the last we will hear on this subject from the legal and policy communities. Courts in a majority of states have yet to issue rulings deciding whether co-parent adoptions are legal.

Courts in a majority of states also continue to issue widely varying opinions on other issues affecting gay and lesbian parents. The AAP position is a hopeful sign that gay and lesbian parents will get the support they need and deserve. Still, the law has yet to fully catch up with that position, or even fully incorporate and absorb the evidence on which it was based.