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Child Support Services

Parent rights of gays upheld - State gives both partners equal status, even after a breakup
Case filed by El Dorado County Department of Child Support Services is upheld by the California Supreme Court
By Claire Cooper - Bee Legal Affairs Writer , Published 2:15 a.m. PDT Tuesday, August 23, 2005

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 SAN FRANCISCO - In groundbreaking rulings, the California Supreme Court declared Monday that three lesbians have parental rights and responsibilities equal to those of the women who bore their children - whether the ex-partners like it or not.

Each of the children has two parents, the court said. The justices added that they "perceive no reason why both parents of a child cannot be women."

Joan Hollinger, a family law expert at the University of California, Berkeley, called the decisions "unprecedented around the country."

Courts of other states have recognized limited rights and responsibilities for nonbiological parents like these who have raised children together and later have split up - for example, visitation or child support, Hollinger said.

But Monday's rulings made California the first state to recognize "full legal parentage for both partners," she said.

The court applied the same principles it has used to hold heterosexual parents accountable when they separate.

Authorities were divided on the likely effect of the rulings on the state's current turmoil over same-sex marriage. A case challenging a ban on same-sex marriages is working its way through the appeal courts.

There are two ways to think of it, said University of California Hastings College of the Law professor Vikram Amar: Judges may view the label of marriage as less important because civil unions confer substantially the same rights, or judges accustomed to thinking of gay couples as married units may be more likely to "take that final plunge."

The cases decided Monday did not rely on California's domestic partners law, which confers equal parenting rights on registered partners, and would not be affected if a pending repeal initiative were to succeed.

Led by Justice Carlos Moreno, the court applied different legal principles for each of three diverse situations. The common thread was that all of the couples planned to conceive children, and they raised them jointly for several years.

For the justices, that seemed to be a critical consideration.

Elisa B. and Emily B. - as they are referred to in court documents - lived together for about six years in El Dorado County. Using the same sperm donor, both became pregnant. Elisa gave birth to a son in November 1997. Four months later, Emily gave birth to twins, one with Down syndrome. Both mothers breast-fed all of the children and identified themselves as parents of all three.

Emily stayed home with the children while Elisa was the breadwinner. When the couple separated in 1999, Elisa took her son. She initially kept paying the mortgage and some other bills for Emily and the twins. She stopped paying when she lost her full-time job in 2001.

Forced to pay welfare to Emily and the twins, El Dorado County sued Elisa, becoming the first county in California to pursue payment from the absent partner in such a case, according to Laura Roth, the county's director of child support services. At the time of trial, Elisa was earning $95,000 a year. The judge ordered her to pay $1,815 a month in child support. The Court of Appeal reversed the decision.

In reinstating it, the Supreme Court said Elisa took on a duty to be a parent to the twins and support them when she agreed with Emily to conceive and raise them and then when she took them into her home, holding them out as her own.

Roth said that once the county determines that the order against Elisa remains valid, it will "begin to attach wages and look for assets."

Emily Brooke, who identified herself while speaking at a news conference, said she calculated the overdue payments to be $100,000 or more. She said the court's ruling means she and the twins will be able to go off welfare.

Elisa's lawyer did not reply to requests for comment.

Mathew D. Staver of Liberty Counsel, a conservative legal organization that backed Elisa, told the Associated Press that the ruling "defies logic and common sense by saying that children can have two moms."

The other two cases decided Monday did not involve child support, but rather the privileges of parenthood. In each of these cases, the woman who gave birth wished to be considered the exclusive parent.

In one case, lesbian partners from Marin County jointly conceived twins. K.M. provided the egg. E.G. became pregnant and gave birth.

K.M. is equally a mother, Moreno wrote, "because K.M. supplied her ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home." That factor, said the court, distinguished her from a sperm donor, whose genetic relationship to a child would not be enough to confer parenting rights.

In the third case, from Los Angeles County, the court ruled that Kristine H. had no right to challenge the validity of a trial court judgment she obtained in 2000 with Lisa R., stipulating that Lisa would be her unborn child's "second mother/parent."

The Supreme Court declined to say whether such agreements are valid, however, and Kristine's lawyer, Honey Kessler Amado, said she and Kristine were disappointed that no guidance was provided for future cases.

But Hollinger interpreted the decision as an affirmation of the trial court's power to consider such a stipulation between the women.

She, along with the National Center for Lesbian Rights, which represented Emily in the El Dorado County case, called all three rulings a victory for children born to same-sex couples because all of the rulings protect the children's relationships with two parents.

About the writer: The Bee's Claire Cooper can be reached at (415) 551-7701 or email  ccooper@sacbee.com