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Child Support Services

Child Support Pay Indicated Lesbian Split
By Megan Marshack, Office of Public Affairs California Department of Child Support Services
Contact: Mike Botula, Public Information Officer, (916) 464-5188 Email
Same Sex Parents Publication  by Megan Marshack, Staff writer El Dorado Mountain Democrat Reporter, July 17, 2002

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In what could become a landmark decision in the state of California, the Western Slope family law commissioner has ruled same sex partners have a financial responsibility to support children conceived through artificial insemination.

An objection has been filed and an appeal is anticipated.

Commissioner Gregory W. Dwyer was presented with the paperwork to start the proceedings a year ago last month. In it, the county's Department of Child Support Services asked the commissioner to find the 40-year-old the "absent parent" of two of three children listed in the declaration of paternity on file with the El Dorado County district attorney.

Two of the children were receiving public assistance at the time, according to court documents. Those same documents indicate the "absent parent" was earning $10,000 a month. All three children were 3 years old. The women in this case were involved in a same sex relationship from January 1993 to approximately 1999. Then the parties separated, but the alleged "absent parent" 1 continued financial support and continued to visit with the children until the paper was filed in 2001.

"They had been living together and held each other out as a couple. The couple had exchanged rings to symbolize that relationship and had talked about creating a family together. Now 41, the custodial parent was hesitant to start a family because of their financial situation; however, the 40-year-old assured and promised she would take care of the family financially," said Gloria Mas, supervising child support attorney for the Department of Child Support Services.

"In June of 1996, the couple visited a sperm bank to choose an anonymous sperm donor. After four failed attempts at getting pregnant the older of the two conceived and gave birth to twins in 1998. For the next year, the parties lived together as a family," Mas said.

"The younger partner bought a house and added the older partner to the deed. The children received hyphenated last names; the younger partner took a tax exemption for the children and added them to her health insurance as dependents."

"Both women in the relationship held themselves out as the parent to the children. Because one of the children was born with Down Syndrome and required a higher level of care, the couple agreed that the older partner would stay home and care for the children and the respondent would support the family financially. About a year after the children were born, the couple separated. The children continued to be supported by the respondent until 2001 when a Summons and Complaint was filed against her to establish parentage and a child support order," Mas said.

"This case addresses the issue of whether child support is an enforceable legal obligation when sought from persons who are not the natural, step-parent or adoptive parent of a child who is conceived by artificial insemination by same sex persons who consent to the creation of a child by medical technology," wrote Commissioner Dwyer in his final statement of decision.

"The Court finds that a person who uses reproductive technology is accountable as a de facto legal parent for the support of that child. Legal parentage is not determined exclusively by biology. The respondent (the younger partner) in this case should be financially responsible for the needs of the child as she took such extreme efforts to create," Dwyer wrote.

"The California Uniform Parentage Act does not exclude its application to respondent. She is a parent as defined by case law because she created these children and in fact parented them for several years. This court finds that the respondent is a class of persons subject to child support enforcement.

"There is no difference between respondent being held to the same legal duty and responsibility of a man found to be a presumed father, though not biologically related to these children," Dwyer wrote.

"Respondent acted as a parent to petitioner’s children and provided them with financial, emotional and psychological support. Respondent consented to the creation of these children and encouraged their creation. She breast fed the children with her own milk. These children would not exist today but for the joint decision to create them," Dwyer wrote.

He cited case law that held similar contracts between domestic partners are enforceable.

"The need for the application of this doctrine is underscored by the fact that the decision of the respondent to create a family and desert them has caused the remaining family members to seek county assistance. One child that was created has special needs that will require the remaining parent or the county to be financially responsible for those needs. The child was deprived of the right to have a traditional father to take care of the financial needs of this child.

"Respondent chose to step in those shoes and assume the role and responsibility of the 'other' parent. This should be her responsibility and not the responsibility of the taxpayer," Dwyer wrote. Shelly Hanke represents the younger partner.

She said her client broke off the relationship and returned to the Bay Area with her son.

Hanke said she filed an objection to the commissioner's decision and intends pursuing the matter on appeal.

She said contrary to the court's opinion, her client is not considered a parent under the Uniform Parentage Act.

Hanke said her client is not even able to obtain a visitation order.

"The courts do not have the jurisdiction to award visitation," she said. "And now they're trying to make her responsible for child support."

"There's a greater burden on my client than that of any other portion of the population," Hanke said.

She argued under the equal protection clause of the Constitution that her client was being treated differently than a male would in her position.

A court hearing is schedule in August to determine how much the "absent parent" will be responsible for the support of the children.