Divorce Law Journal

California To Permit Same-Sex Marriage (at least for now)

Click In Re Marriage and you'll see the 172 page opinion from the Supreme Court of California today. Marcia Oddi at Indiana Law Blog posts:

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Family Law Prof Blog highlighted this quote from the opinon, "In the present case, it is readily apparent that extending the designation of
marriage to same-sex couples clearly is more consistent with the probable
legislative intent than withholding that designation from both opposite-sex couples
and same-sex couples in favor of some other, uniform designation. In view of the
lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977
amendment to the marriage statutes and the electors who voted in favor of
Proposition 22 unquestionably attached to the designation of marriage, there can
be no doubt that extending the designation of marriage to same-sex couples, rather
than denying it to all couples, is the equal protection remedy that is most
consistent with our state’s general legislative policy and preference."

Picklesimer v. Mullins (Ky)

Picklesimer v. Mullins, __ S.W.3d. __ (Ky. App. 2008)
2007-CA-000086-ME and 2007-CA-000101-ME

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together. The parties agreed that Picklesimer would be artificially inseminated. Their child was born in 2005, and their relationship ended in 2006. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody. The order was entered in a neighboring county to avoid publicity in their own community. The TC entered the order without taking any evidence. No summons was issued, but neither party challenged the lack of notice. After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins. Picklesimer argued that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody. On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.

TC’s jurisdiction and venue to enter custody orders: CA held that Picklesimer had notice of the proceedings since she filed an entry of appearance and never challenged the agreed order establishing Mullins as a de facto custodian. CA also held that venue was waived when both parties filed pleadings with no objection to venue.

Mullins’ standing to pursue joint custody/ Picklesimer’s waiver of her superior right to cusody: A nonparent, who does not qualify as a de facto custodian, may seek custody of a child if the nonparent shows that 1) the parent is unfit by clear and convincing evidence, or 2) the parent has waived his/her superior right to custody. A finding of waiver requires a voluntary and intentional surrender or relinquishment of a known right. A court order granting a nonparent visitation does not constitute a waiver of the parent’s superior right to custody. As Picklesimer did not waive her superior right to custody of the child, Mullins had no standing to pursue custody.

TC error in invalidating the agreed judgment of joint custody: The judgment establishing Mullins as a de facto custodian was entered based on incorrect evidence. Mullins was never the primary caregiver and the primary financial provider for the child, as the statute requires. The pleadings were drafted to convince the TC that a hearing was not necessary on the matter. CA held that the pleadings and conduct constituted a fraud upon the court. The CA found that had the TC held a hearing, the TC would not have signed the order. The judgment declaring Mullins a de facto custodian is invalid.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Maryland Rejects Same Sex Marriage

All 224 pages of Maryland's highest court decision in Conaway v. Deane that there is no fundamental right to marry someone of the same sex, that same sex orientation is not a suspect or quasi-suspect class, that denial of same sex marriage is not a violation of equal protection and that denial of the right to marry someone of the same sex served a legitimate governmental objective can be found here.

Maine Supreme Court Rules Lesbian Couple May Adopt

The Family Law Prof Blog reports:

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child. The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result. "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree." In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA (Maine Supreme Court August 30, 2007)

The opinion is online.

I recently met with Christine Sun, an ACLU staff attorney, about our firm doing some pro bono appellate work and this was one issue we would like to see addressed in Kentucky. Same-sex adoption is legal in Indiana as we reported here, linking to an Indiana Law Blog post.

Divorce In Same Sex Marriage And Attack On No-Fault Divorce Laws

How states will deal with divorces between same-sex partners legally married in another state or country is an issue family lawyers are watching and busy planning strategies. I doubt anyone thought that meant dealing with an attack on no-fault divorce as advanced by "the nationally known conservative lawyer, James Bopp Jr., who received $15,000 in public money to write the friend-of-the-court brief" in a Rhode Island case, as reported by Providence Journal Staff writer Edward Fitzpatrick, online here.

More On Whether Same Sex Relationships Terminate Maintenance

New York Divorce Report directs us to posts about recent decisions in Virginia, Oregon and California.

Birth Certificate Does Not Require Name Of Mother In Md. Surrogacy Case

The 56 page Maryland decision in In Re Roberto d B. rendered last week can be found here. KRISTEN WYATT, Associated Press, Wednesday, May 16, 2007 writes:

A surrogate mother who has no genetic connection to the baby she is carrying
does not have to be listed as the mother on a birth certificate, Maryland's
highest court ruled Wednesday.

The case arose from twins born in the Washington suburbs in 2001. The woman
who carried the twins for a father used an egg donor and had no genetic
relationship to them. Both she and the father did not want her listed as the
mother.

In a 4-3 decision, the Maryland Court of Appeals ruled that the babies are
not required to have a mother listed on birth papers.

"Maryland's breaking ground here," said Dorrance Dickens, a Washington
lawyer who argued the case for the father and the surrogate mother.

Though judges routinely allow blank spaces for mothers on birth certificates
in surrogate cases, Dickens said Maryland's court is the first to use a
state Equal Rights Amendment to make the decision.

Court Orders Sperm Donor To Pay Support

In an article by Paula Reed Ward today, the Pittsburgh Post-Gazette reports Court orders sperm donor to pay support, Death of father complicates complex case.
Some quotes:

The Pennsylvania Superior Court, in a recent decision, ordered that a sperm donor who had a close relationship with the two children he fathered must pay child support.

It is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending.

The article goes on to report these comments from attorneys:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors.

Harry Tindall, a family law attorney in Houston, who helped write the Uniform Parentage Act, was outraged by the Superior Court's decision in the Jacob case.

"Donors are not parents. Why should we hurt someone for trying to do good?" he asked.

But more than that, he was frustrated, like the others, at the lack of legislation.

"Pennsylvania won't pass laws on this issue, so courts don't have any guidance," he said. "Shame on a legislature that doesn't have the values to address this issue."

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that.

He noted that the state does have laws related to reproductive issues in dog breeding.

Mr. Kalikow believes there are no state laws related to these questions with humans because the issues are too emotional.

"It implicates these very sensitive, social, religious and then, political, issues," he said.

Those include the idea of extraordinary conception -- like sperm donation and in vitro fertilization -- as well as encouraging single parenthood and the possibilities of same-sex couples adopting, Mr. Kalikow said.

"There is no way to isolate from religious and social conservatives concerns that this is promoting unconventional family building," he said. "You're going to get a lot of heat."

Thanks to Marcia Oddi of the Indiana Law Blog for letting me know of this article.

Same Sex Cohabitation Terminates Maintenance Notwithstanding Gay Marriage Ban

One of the questions we pondered as states passed DOMAs and constitutional amendments banning same-sex marriage was what effect such would have on divorces between heterosexuals. Larry O'Dell,
Associated Press Writer, Richmond, Va. wrote about a recent Virginia Court of Appeals ruling, Stroud v. Stroud in which same-sex cohabitation terminated a contractual obligation to pay maintenance. His story is here. Some excerpts:

University of Richmond law professor Carl Tobias said the appeals court seemed to be treating same-sex couples the same as heterosexual couples--but only in the narrow analysis of contract law, not the broader public policy context.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year's constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

"Today's decision is simply about a contract between two people and has nothing to do with how the Commonwealth of Virginia defines or recognizes marriage," he said.

But David Spratt, former chairman of the Virginia Bar Association's Domestic Relations Section, said the ruling could have more far-reaching consequences depending on how this area of the law evolves.

"The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract," said Spratt, now a legal rhetoric professor at American University, Washington College of Law. "So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

The gay-rights group Equality Virginia, which opposed the so-called "marriage amendment" that was approved by voters in November, had no immediate response to Tuesday's ruling.

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

From The Family Law Prof Blog: Italian Government Approves Bill to Grant Legal Rights to Cohabitants. Whether their parliment will pass it appears to be a coin toss.

Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

The Court of Appeals in Ontario ruled that three parents can have parental rights over one child . Between A.A., Appellant and B.B. and C.C., Appellees. The background of the case is reported in Jurist.

A Canadian child can legally have three parents - two mothers and a father. The case before the court involved a lesbian couple, together since 1990, one of whom was the biological mother of the five-year-old child, and a biological father who was listed on the child's birth certificate. All three individuals were active in the child's life and the women were not simply willing to adopt the boy because it would mean the father would lose his legal status as a parent. Ontario Justice Marc Rosenberg said depriving all three from legal parental roles would be "contrary to (the child's) best interests" and stressed the importance of giving the non-biological mother authority to make decisions for the child in the event of the biological mother's death.

Reuters has more.
Hmm. The non-bio mom could not adopt in Kentucky if she wanted, and the bio dad on the birth certificate would be on the hook even if he had no interest in the child.

Same-Sex Custody Jurisdiction

In an important decision last week, Janet Miller-Jenkins v. Lisa Miller-Jenkins, the Virginia Court of Appeals held that Virginia must give full faith and credit under the federal Parental Kidnapping Prevention Act to a custody determination made by a Vermont court growing out of a Vermont civil union. The opinion determined that DOMA did not create an exception to the PKPA and that both statutes must be given effect.

B.F. v. T.D., 194 S.W.3d 310 (Ky., 2006)

Issue and Holding:
Whether one who is not a parent but who has nevertheless participated substantially in the support and rearing of a child for a significant period of time has standing to claim a right of custody or visitation upon discontinuance of the cohabitational relationship with the parent. The Court held no, such person has no standing.

Facts:
B.F. and T.D. were in a cohabitational, same-sex, relationship for about eight years. They adopted a daughter, but only T.D. was the adoptive parent due to the parties’ uncertainty of the law with respect to same-sex couples jointly adopting a child. The child lived with the couple for six years, after which the couple discontinued their relationship.
B.F. asserted that she was a de facto custodian of the child; however, the trial court found that B.F. did not meet the requirements of Kentucky law for de facto custodian status. The Court of Appeals affirmed. The Supreme Court granted discretionary review.

Analysis:
KRS 403.420 limits standing to claim a right of custody to 1) a parent, 2) a de facto custodian, and 3) a person other than a parent only if the child is not in the physical custody of one of the parents. Since B.F. is not a parent and the child remained in the custody of her mother, T.D., at the time the custody proceeding began, B.F.’s only option was to claim de facto custodian status.
KRS 403.270 defines de facto custodian as someone who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child. B.F. was the primary financial supporter of the child. However, T.D. was the child’s primary caregiver.
The Court held that the trial court’s ruling that B.F. was not the primary caregiver was not clearly erroneous. Testimony by B.F. confirmed that T.D. was the primary caregiver. As a result, B.F. did not meet her burden of proof. Therefore, the Court affirmed the decision below.

Gay Men, Lesbians and the Kids They are Making and Raising, Sort of Together

Gay Donor or Gay Dad? by John Bowe is The New York Times Magazine November 19, 2006 cover story under the headline An Extended Nuclear Family? . "Gay men and lesbians are having babies - and redefining fatherhood, commitment and what a family can be." The entire article is online and worth a read.

New Jersey Same Sex Marriage

What concerned me when I read the news stories about the New Jersey same-sex marriage case was that it was a 4-3 decision. I was worried that the court was so split on the rights due gay partners, that any change in balance of the composition of government would easily upend the decision. I am pleased to report that my angst was misplaced. Here's the decision, Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris We have posted on many same-sex issues on this blog (check categories for all), but our most in-depth one is here.
The Family Law Blog reports, "New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals, but left it up to state lawmakers to decide if such unions can be called marriage. "Times and attitudes have changed," the New Jersey Supreme Court said in a nuanced 90-page ruling certain to fuel America's culture wars ahead of November 7 elections, when eight states will vote on same-sex marriage laws. Advocates on both sides declared varying degrees of victory and disappointment on the latest twist in a battle that has divided the country over issues of gay culture and morality."

Same-Sex Marriage

UPDATE:
TRENTON, New Jersey (CNN) "The New Jersey Supreme Court ruled Wednesday that the state's constitution gives gay and lesbian couples all the rights of married heterosexual couples.
But the court left it to the state legislature to decide what to call the relationship.
It gave lawmakers 180 days to either include gay and lesbian couples in the state's existing marriage laws or grant those rights under the title civil unions."
Forbes:"New Jersey's highest court opened the door Wednesday to making the state the second in the nation to allow gay marriage, ruling that lawmakers must offer homosexuals either marriage or something like it, such as civil unions.
In a ruling that fell short of what either side wanted or feared, the state Supreme Court declared 4-3 that homosexual couples are entitled to the same rights as heterosexual ones. The justices gave lawmakers 180 days to rewrite the laws.
The ruling is similar to the 1999 high-court ruling in Vermont that led the state to create civil unions, which confer all of the rights and benefits available to married couples under state law."
The Family Law Prof Blog, posted last week on Same-Sex Marriage Ballot Questions from a New York Times Article by Kirk Johnson, "The debate over same-sex marriage was a black-or-white proposition two years ago when voters in 11 states barred gay couples from marrying. But this year shades of gray are everywhere, as eight more states consider similar ballot measures. Some of the proposed bans are struggling in the polls, and the issue of same-sex marriage itself has largely failed to rouse conservative voters. In some cases, other issues, like the war in Iraq and ethics in Washington, have seized voters’ attention. But the biggest change, people on both sides of the issue say, is that supporters of same-sex marriage this year are likely to be as mobilized as the opponents."
Today, there will be a New Jersey court ruling on the issue:
By THE ASSOCIATED PRESS
Published: October 25, 2006
MOUNT LAUREL, N.J. (AP) -- New Jersey could become the nation's gay wedding chapel should the state's highest court rule in favor of same-sex marriages, adversaries on the issue agree.
The New Jersey Supreme Court is poised to release its highly anticipated decision Wednesday in a case brought by seven gay couples who say the state constitution allows them to marry, said Winnie Comfort, a spokeswoman for the state judiciary.
New Jersey is one of only five states with neither a law nor a state constitutional amendment blocking same-sex marriage. As a result, the state is more likely than others to allow gays to wed, said advocacy groups on both sides.
Only Massachusetts -- by virtue of a 2003 ruling from that state's top court -- allows gay marriages.
Proponents and opponents from across the country are watching the case closely.
''New Jersey is a stepping stone,'' said Matt Daniels, president of the Virginia-based Alliance for Marriage, a group pushing for an amendment to the federal Constitution to outlaw same-sex marriage. ''It's not about New Jersey.''
From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.
New Jersey has no such law.
People on both sides of the issue expect a victory for same-sex unions would make New Jersey a destination for gay couples from around the country who want to get married. Some of those couples could return home and sue to have their marriages recognized.

Partnership Packages To Protect Gay Couples Are Complicated and Expensive

Law.com reports partnership packages to protect gay couples are complicated and expensive.

ABA Finally Opposes Discrimination On Basis Of Gender Identity

At the ABA meeting in Hawaii last week the following resolution was passed:
"RESOLVED, That the American Bar Association urges the Federal
government, the states and territories, and local governments to enact
legislation prohibiting discrimination on the basis of actual or
perceived gender identity or expression in employment, housing and
public accommodations."
The passage of the resolution means that the ABA can now advocate on
this issue.

Same-Sex Adoption Legal in Indiana

Same-sex adoptions are legal in Indiana, as Indiana Supreme Court declines to review an Indiana Court of Appeals decision. The Indiana Law Blog has an extensive report on the issue.
Comment: In Kentucky we are reduced to encouraging our "brain drain" by advising clients to move across the river.

Civil Union Partners' Custody Dispute To Be Decided in VT per PKPA and UCCJA; DOMA Does Not Trump

The Vermont Supreme Court decided a jurisdictional custody dispute between partners to a Vermont civil union, which revolved around the Parental Kidnapping Protection Act and the Uniform Child Custody Jurisdiction Act. The court rejected the argument that the federal Defense of Marriage Act might supersede either of those laws. Boston.com reports "The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's anti-gay marriage laws controlled the case. Vermont Justice John Dooley wrote, though, that it's Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that means Vermont family law governs their 2003 separation and subsequent child custody disagreement. A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court."
UPDATE:
Law - Washington Post editorial provides clarity on Vermont-Virginia dispute is the headline from the Indiana Law Blog."A Washington Post editorial today cuts to the essence of the Vermont-Virginia visitation dispute. A paragraph: As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts."The Indiana Law Blog also links to the August 5th NY Times report, written by Adam Liptak, on the Vermont Supreme Court ruling, and to the blog, How Appealing, whioh links to the Vermont Supreme Court ruling.

Same Sex Marriage Ban Upheld in Washington State

Jeanne Hannah posted an article about the Washington State supreme court's 5-4 decision today banning same-sex marriage on Updates in Michigan Family Law. This article contains links to the majority opinion, 2 concurring opinions, the dissent and 2 opinions concurring in the dissent.

UPDATE: Indiana Law Blog also posts on the case and links to one of its prior posts giving a state-by-state on where same-sex marriage battles stand throughout the country.

More Family Court News From Last Week

Add Nebraska and Tennessee to the list of states whose courts have upheld same-sex marriage bans. Source: Family Law Prof Blog.

Kentucky Supreme Court Rules Same-Sex Mom Cannot Be Defacto Custodian Because She Was Not Primary Caregiver Under KY Statute

The same-sex custody case decided by the Kentucky Supreme Court is front page, headline news in the Courier-Journal. The Court of Appeals decision in B.F. v. T.D was digested here, and we will post yesterday's Supreme Court Opinion and a digest of it shortly.

Update: Here is the linked 7-0 Opinion of the Court by Chief Justice Lambert in B.F. v. T.D., 2005 SC 000557-DG.

Update: Brief for Appellant, Brief for Appellee, and Appellant's Reply Brief.

Update: I have decided not to digest this case just yet. It is not final. It is a short opinion that has been digested many other places on the web. You can read the opinion at the link above. The facts have already been posted here. I will wait to follow all the discussion and any motions that may be filed, and then we'll talk about what it means not only for same-sex parents, but grandparents and others who consider themselves to be defacto parents.

Blonde Justice Includes Louisville Divorce Same Sex Marriage Post in Blawg Review #61

"A lucidly written, intelligent analysis of the legal issues implicated in the debate over same sex marriage on Louisville Divorce" caught my eye at Online Guide to Mediation. That led to the site hosting this week's Blawg Review #61, Blonde Justice, where our posting Same Sex Marriage Issue in Congress, Again was included as part of the review of the week. Don't you have to love a name like "Blonde Justice"? And, when writing about such a divisive and emotionally charged issue as same-sex marriage, especially in a state that quick-triggered a constitutional amendment, I can't tell you how good it feels to have someone call the analysis "lucid" and "intelligent."

Same-sex issues have been posted frequently here, but not for ideological reasons; I'm as straight as straight can be. The definition of family is evolving, however, and it is highly important that society consider the numerous types of families that are raising children, and that our law protect both partners in these relationships as well as their children. And, these issues are in the news constantly. Glad others outside the state appreciated the message.

It will be fun taking future looks at the Blonde Justice Blog as well as her collaborators on the Blawg Review, Woman of the Law and Not Guilty.

Finally, we'll be hosting Blawg Review on November 27, 2006. We're looking forward to having all our planned work in place well before then, and making the Blawg Review over-the-top outstanding (or at least as great as a blawg which will be nine months old at the time can be)!

State Constitutional Amendments Banning Same-Sex Marriage May Impact Domestic Violence Statutes and Unmarried Women

From The Family Law Prof's Blog: Commentary: Do State Constitutional Bans on Same-Sex Marriage Impact Domestic Violence Statutes and Unmarried Women?
and
Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment

Same Sex Marriage Issue in Congress, Again

The discussion of same sex marriage to date has focused on religious based preservation of the family, claims of gay bashing, threats to families, and accusations that a few judges and opportunistic mayors have decided they were above the law. The issue of same sex marriage is far more complex and before more polls are taken, votes cast in our legislatures or congressional action taken, we need to consider thoughtfully many more facets of the difficult problems facing families.
The American Bar Association adopted a resolution urging Congress to oppose a federal constitutional amendment. The ABA has not taken a position pro or con on whether gay marriage should be recognized, to my knowledge. The American Academy of Matrimonial Lawyers discussed the issue, and what position, if any should be taken, at its mid-year meeting in March, 2004 and decided that further research and debate was needed before adopting a position. Subsequently, it has taken the position that same sex marriage should be permitted. As a family lawyer who is a member of both organizations, I have been privileged to observe, participate in, and be enlightened by the critical analysis of the law and the principled positions articulated. When the hysteria is removed from the

"Gay Marriage Looms as 'Battle of Our Times'"

Look at today's Christian Science Monitor for a perspective on this issue. As Congress takes it up this month, we will post more.

More On Same Sex Adoption in Indiana

More on Same Sex Adoption from the Indiana Law Blog:

 

Ind. Decisions - More on: AG asks Supreme Court to hear same-sex adoption question

Same Sex Custody in Kentucky,B.F. v. T.D.; 2005 WL 857093

No wonder I couldn't find this case in a prior post; it was still in the draft stage pending ruling by the Kentucky Supreme Court on discretionary review, although we did refer to it in a story on the Supreme Court elections in Kentucky. As a general rule, we intend only to publish cases that are final with S.W.3d cites. With the U.S. Supreme Court rulling in Britain v. Carvin,___S. Ct. ___(2006) 2006WL271809, May 15, 2006, its pending status is again newsworthy:

B.F. v. T.D.; 2005 WL 857093
Not final - discretionary review granted by Kentucky Supreme
Court in custody case between same sex parents, qualification
as de facto custodian and constitutional right to cross-examination.

This case involved same sex parents. Because Kentucky law does not permit joint adoption by same sex couples, T.D. alone adopted the child. T.D. became the sole "natural parent" but both mothers raised the child and contributed to the child's financial, emotional and physical care. B.F provided the majority of the financial support while T.D. was more involved with the child's daily activities. When the relationship dissolved, T.D. left the home taking the child with her and refused to allow B.F. to have contact. B.F. filed a petition seeking joint custody and visitation.

Judge Garvey granted B.F. temporary, supervised visitation and scheduled a hearing solely on the issue of whether B.F. qualified as a de facto custodian. The court limited the hearing to two hours and refused counsel's request for cross-examination.

The Court of Appeals affirmed that two hours was sufficient to establish de facto custodianship because of the limited elements outlined in KRS 403.270.

Similarly, the Court of Appeals affirmed the judge's refusal of her request for cross examination, holding that the constitutional rights for confrontation is only guaranteed in criminal cases, CR 43 does not mention the right to cross-examination and KRE 611 only states that a party "may" be cross-examined.

The Court of Appeals also affirmed the trial court finding that B.F. did not qualify as a de facto custodian because Consalvi v. Cawood held that to qualify as a de facto custodian an individual must be the primary caregiver.

Same Sex Parents Custody Standing in U.S. Supreme Court

We first saw the BIG news of the day at The Art of Divorce blog which linked to an AP story reporting on the U.S. Supreme Court's refusal to block a lesbian woman from pursuing a custody claim to a child conceived by her partner through artificial donor insemination. The case arises from Washington state, and the state court opinion holding there is a common law right of defacto parents to pursue custody is linked here. We don't yet have the U.S. Supreme Court opinion, but it's all over the news, the International Herald Tribune, Seattle Post Intelligence, and you can subscribe to the latest with Google Alerts.
It was interesting to see that Courtney Joslin wrote an amicus brief at the Washington State Supreme Court level. She is with the National Center of Lesbian Rights and is counsel, pro hac vice, in the case pending before the Kentucky Supreme Court, which we digested previously and which is posted below. Maybe now that the U.S. Supreme Court has issued its opinion, the Kentucky pending matter will be rebriefed or reargued? We'll report more after reviewing the U.S. Supreme Court case.

Same Sex Adoption and Joint Adoption by Unmarried Couples in Indiana

The Indiana Law Blog posts thoughtful excerpts from an editorial in today's Fort Wayne News Sentinel concerning adoption by same sex couples.
The Indiana Law Blog also reports today that the Indiana Supreme Court has been asked to review a decision permitting joint adoption by an unmarried couple, citing conflicting lower court rulings