The Other Parent: Non Biological Mother's Rights

In our last couple of columns, we've explored the "gayby boom" and some of the novel legal issues arising as a growing number of gays and lesbians are deciding to have children. From a lesbian perspective, we've focused on how to protect ourselves against the outside world in general, and sperm donors in particular. We now move to the delicate topic of protecting ourselves against each other. What happens to the children when two lesbians who have co-parented break up?

Truth be told, this column hasn't been easy to write, and we've been putting it off for quite some time because of the grim reality facing non-biological mothers. The situation for non-bio moms is a grave and extraordinarily painful one, and one that is the subject of many court cases locally and nationally. There are sporadic court decisions around the country, mostly in California, that recognize the parental rights of non-bio moms, but mostly the presumption is that these women are "legal strangers" to their kids because there is no blood relationship. Again, we are faced with the real pain of invisibility.

To get what this means, here's an example. Janet and Chrissy have been a loving couple for six years when they decide to have kids. Janet decides she wants to experience the joy of childbirth whereas Chrissy does not, but is willing to go along with it. As it turns out, however, Chrissy does have a strong maternal instinct. In fact, once Janet squeezes out a few puppies, it turns out Janet's not much into the parenting part of motherhood. Chrissy, on the other hand, is delighted to help the kids with their homework, attend PTA functions, serve as taxi service, handle the shopping and doctor visits. Chrissy also contributes most of her income to child-related expenses. Janet is minimally involved with the kids emotionally and financially, and likes it that way.

Suddenly, Janet comes home one evening after Chrissy has put them to bed, and confesses that she has fallen in love with Jackie and is leaving Chrissy after seventeen years. And taking the kids. Years have passed and now the kids are eleven and eight. Chrissy has been the primary caregiver for these kids since birth, and paid for much of the costs associated with insemination and pregnancy. Now she has no recourse, and feels like her heart has been stripped from her.

After much dyke drama, Janet leaves with her stuff and the kids (to move in with Jackie, of course). Chrissy, distraught over her loss, is told by Janet and her lawyer that these are Janet's children. Janet denies Chrissy all rights to custody and visitation because, well, because she can. Ironically, while it might be Janet's goal to make the change easier on the kids by helping them adjust to Jackie, their new mom, the separation is painful for them.

Janet and Chrissy had no estate planning documents (i.e. will, guardianship designations, etc.) in place evidencing their intentions, nor did they have a co-parenting agreement. Unless Chrissy has a large stash of cash with which to pursue litigation, she can only hope that, in time, Janet will realize that, via counseling or her own moral compass, that it is in the kids' best interest to not be entirely separated from their "other mom."

This kind of situation has unfortunately become all too common in our community. People are not managing their affairs properly when they separate and our kids are paying the costs.

Perhaps the main reason we have it so tough here is that the adoption by a gay or lesbian person is illegal in the State of Florida. Therefore, only one of us in a lesbian couple can be the legal parent. Some states allow "second parent adoption," which means that a person other than the biological mother of the child can adopt that child without the birth mom having to relinquish her parental rights. This would mean that the child has two legal parents and, in the event of a break up or death or disability of the birth mom, the non-bio mom remains a mom.

In the absence of adoption rights, it is crucial that, as lesbians co-parenting, we avail ourselves of all available resources to document our intentions that both mothers be considered legal parents. It could not be more important that you seek out sensitive and competent legal counsel to help prepare an agreement evidencing these intentions.

Such a document, commonly called a Co-Parenting Agreement, should clearly state the rights and responsibilities of each woman regarding any children born of them. There should be a global acknowledgement of the intention to cooperate with and respect one another and foster a healthy family. Keep the focus on the best interests of the children. Among the provisions to include are:

Understanding that both moms are equally responsible for the child[ren]'s support, care, and expenses. Or, the contribution can be adjusted based on circumstances.
Understanding that the agreement presents legal questions that are unsettled.
Agreement that the non-bio mom will be given medical authorization and guardianship designation.
Statement that in the event of separation, that the child's best interests will be strongly considered and a close relationship with both parents should be maintained.
Stipulation that, in the event of a dispute, the path of mediation shall be taken before proceeding directly into litigation.

Of course, it is best to enter into a Co-Parenting Agreement before any children are conceived and while the love relationship is happily intact. Hopefully, the breakup provisions of the Agreement will never be needed, but if they are, that will be the worst and toughest time to beneficially discuss these matters. It is precisely because this society is so homophobic, and there is no system in place to handle our disputes, that must take action to protect ourselves and document our intentions.

Fortunately, our community is beginning to come together to educate one another about parenting our children ethically and responsibly. A website for non-bio moms is the works. Also, a conference for non-biological parents sponsored by CenterKids, an organization out of the Lesbian and Gay Services Center in New York City, will be held there on Saturday, March 6, 1999. For more information on the Conference or on this topic generally, contact Terry Bogis at 212.620.7310.

We hope this exploration of the legal aspects of the biological mom/non-biological mom relationship may help motivate you to do what needs to be done and tell your friends to do the same. Please check us out next time, and as always, email me at eschwartz@sobelaw.com with any feedback.

Originally published in The Weekly News.