Tuesday, October 2, 2012

Another Victory in the Fight for Fairness for Our Families

At the risk of sounding like a broken record, I’d like to draw your attention to a great ruling issued last Friday by the Massachusetts Supreme Judicial Court (SJC) in our case A.E.H v. M.R.

This case was yet another example of a bad breakup between a same-sex couple where one of the estranged spouses attempted to rewrite their family history in order deprive our client of a relationship with one of her two daughters. Those of you familiar with this blog might know I have strong feelings about people who try to wield our country’s woefully inconsistent – or nonexistent, in many places – state laws governing the recognition of LGBT familial relationships for their own gain in custody disputes. Fortunately, at least here in Massachusetts, such behavior is increasingly becoming legally out of bounds.
GLAD represented A.E.H., who entered into a registered domestic partnership (RDP) in California with M.R. in 2003. The couple agreed to conceive and co-parent children together, and they later moved from California to the east coast when M.R. was pregnant with their eldest child, J. J. was born while the couple lived in Massachusetts, and M.R. and A.E.H. were equal co-parents, acting as a family in every way. The couple decided to expand their family, and A.E.H. became pregnant with their second child, M. During A.E.H.’s pregnancy, M.R. took J. to Oregon under false pretenses and severed all contact between J. and our client.

California RDPs offer all of the benefits, protections and obligations of marriage in that state. That means that both parties in an RDP are the legal parents to any children born into that relationship. Despite that reality, M.R attempted to make the case that our client was not a legal parent to J. because their RDP is not equivalent to marriage in Massachusetts. The Massachusetts Probate and Family Court, however, appropriately recognized both women as legal parents to the children.

The trial judge then determined that awarding physical custody of both children to A.E.H. was in the children’s best interest, citing M.R.’s disruption of the strong emotional bond A.E.H. had formed with J. over the course of parenting her from birth until she was 15 months old, at which point M.R. took off out of state with J. The trial judge also noted that M.R. engaged in a pattern of behavior that attempted to alienate J. from A.E.H., such as prohibiting contact between the two until court-ordered to do so, telling J. that A.E.H. was not her parent, but rather a friend; and asking the court to order that A.E.H. not refer to herself as “mommy” during web chats with her daughter. The Probate and Family Court also found that A.E.H. provided more stability to J. than M., noting that when M.R. moved out of state with J., the child lived in four different homes in less than a year and had “no less than five different care providers.”

M.R. appealed the ruling to the SJC and continued to argue that Massachusetts should not recognize their California domestic partnership, and as such she should retain sole custody of the older child she birthed and have no parental responsibility for the younger child that A.E.H. birthed.

Well, not quite. In a unanimous decision, the SJC declared that the Probate and Family Court did not err when it determined that a California RDP was the equivalent to marriage in Massachusetts and that both our client and M.R. were the legal parents to both J. and M. under California and Massachusetts law. “Because the parties to California RDPs have rights and responsibilities identical to those of marriage,” the Court stated, it is proper to treat “the parties’ RDP as equivalent to marriage in the Commonwealth.” (In doing so, the SJC referenced another recent case of ours, Elia-Warnken v. Elia, in which the Court ruled that Massachusetts must recognize civil unions as equivalent to marriage.)

If you’re familiar with my other posts on these types of cases, you know how this one’s going to end: with my plug for the publication Protecting Families: Standards for LGBT Families , a collaborative effort between national and local LGBT organizations spearheaded by GLAD. The standards are a set of 10 guidelines that aim to remind LGBT people how important it is to legally protect the families they create and to caution parents against wielding anti-LGBT laws and other legal loopholes against their partner should their relationship break up. Until our families are uniformly recognized, respected and protected in every state in our country, sometimes the best we can do is to urge our community to fight fair. We know breaking up is hard to do (that’s the title of Standard #6, as a matter of fact). For the sake of the children involved, it should at least be fair, and reflect the reality of our lives and our relationships.

Oh and one last thing – shout outs to former GLAD Senior Attorney Karen Loewy, who expertly argued this case before the SJC back in May, and Polly Crozier of Kauffman Crozier LLP, who tried the case and served as co-counsel on appeal. Congratulations on an important victory!

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