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Child Support Services

Top Court Hears Lesbians' Child Support Case
Mountain Democrat Jan. 21, 2005, By Ryan McCarthy Staff writer 

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The parent - not the public - should provide payments to support children of two women in a same-sex union who were artificially inseminated by the same donor and had children before their relationship ended.

That's the argument of El Dorado County in a landmark case before the California Supreme Court and involving children who received public assistance.

The women, identified in the case record as "Elisa" and "Emily," were partners who moved to El Dorado County after Emily in 1998 gave birth to twins and Elisa had a single child the previous year. Elisa, a computer network engineer, had earned over $100,000 yearly.

The women had agreed before the births that Elisa would be the breadwinner while Emily provided childcare until the children were old enough to attend pre-school.

El Dorado County Superior Court, concluding Elisa was the other parent of the twins, had ordered child support of $1,805 monthly for the twins, one of whom has heart problems as well as Down Syndrome.

But a state appellate court ruling last year disagreed.

Elisa, the appellate court concluded, could not be a "natural mother" because Emily gave birth and Elisa could not be a "natural father" for obvious reasons. The child support paid by the woman stopped as part of the appellate court ruling.

The state Supreme Court accepted the case for review and is expected to hear arguments this spring.

Mary Roth, representing El Dorado County, said Wednesday that Elisa's status is the center of the legal issue.

"Is she a parent?" Roth asked. "That's the whole core of the case."

Roth's answer is, 'Yes.'

"It was an intentional pregnancy," the attorney said of the couple and their children. "Two people got together and decided to produce children."

Courtney Joslin, staff attorney with the National Center for Lesbian Rights in San Francisco, called the case crucial.

"Elisa must be held to be a parent," Joslin said.

The law is now unclear on child support and custody involving the children of same-sex couples such as Elisa and Emily, she said.

"We hope that the court provides their children with the same protection that is provided all other children, Joslin said.

"No case," attorney Roth said, addresses the right of counties to "pursue child support from a same-sex former partner on behalf of minor children."

Roth said that, "The county shouldn't have to pay if there's a live human being who should have to pay."

Attorney Shelly Hanke, representing Elisa, could not comment Thursday on the case.

Elisa and Emily came here from the Bay Area after the birth of the children, state court documents Roth filed.

"Hoping to live more frugally," Roth wrote, and to obtain care for the infant with special needs, the couple moved from San Francisco.

"The skies were not cloudy all day, the cost of living was lower and Emily had close friends there," the attorney noted.

El Dorado was also the site of the nonprofit organization "Pride and Joy" providing assistance for parents of special needs children, Roth stated.

Elisa continued her job in San Francisco and made the 200-mile commute, according to Roth. Stressed after the birth of the twins, the two women attended relationship counseling for nearly a year beginning in 1998, the attorney said.

Emily filed for bankruptcy that same year. In 1999 Elisa and her son moved back to San Francisco, while she continued to make the $1,500 monthly mortgage payment on the house here. The computer engineer also paid other household expenses for Emily, including paying part of the utilities and auto insurance.

The house was later sold, Emily and the twins moved to an apartment. In San Francisco, Elisa's hours and salary were cut. Emily, saying she needed a reliable income source, applied for welfare. Her application for aid and the following inquiry into Elisa's finances proved the final blow to the women's relationship, according to attorney Roth.