Legal Briefs

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Bad News and Good for Gay Parents

In an unusual mix of bad news and good news, a three-judge panel of the California Court of Appeal invalidated a procedure used by hundreds of lesbian couples in California to establish joint parental rights in donor insemination cases, but then went on to find that a lesbian co-parent could attempt to establish parental rights as a “presumptive father” under California’s Uniform Parentage Act.

The June 30 ruling in the case of Kristine Renee H. v. Lisa Ann R. drew wide attention in the legal community, including friend-of-the-court briefs from the National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union of Southern California, and the ACLU’s National Lesbian and Gay Rights Project.

The couple, who were in a long-term relationship, decided that Kristine would become pregnant through artificial insemination. The women followed a procedure devised by the National Center for Lesbian Rights and widely followed in California of having a lawyer draft a “stipulation” signed by both women that Lisa would be considered a parent and have full parental rights and then get a family court judge to issue a judgment based on the stipulation. The judgment provided not that Lisa would be a parent, but that the hospital must put her name on the birth certificate in the space normally designated for the father.

After the birth of the child, Lauren, Lisa fully participated as a parent, but never attempted to adopt her through a second-parent adoption procedure, assuming that the family court order was sufficient. But when Lauren was two, the couple broke up and Kristine filed a lawsuit seeking to have the family court judgment voided to extinguish Lisa’s parental rights.

After a trial judged rejected Kristine’s argument, ruling that Lisa could seek custody and visitation rights, Kristine appealed.

The appeals court found that the original judgment was not valid, ruling that issues of parental status are determined under California’s Uniform Parentage Act, not by individuals making stipulations and presenting them to a court.

This is bad news, not just for Lisa but for perhaps thousands of California couples who made use of such stipulations and judgments to create legal security for their families. Several months ago, a California appeals panel in another district also ruled that a lesbian co-parent could not be considered a legal parent under the Uniform Parentage Act.

The court noted that despite having contradicted the earlier appeals court ruling, its decision was consistent with the direction of California legislation, which last year enacted domestic partner legislation that will give partners identical parenting rights.

Given the difference between the two appellate rulings, however, Kristine may choose to take her case to the California Supreme Court.

Colorado Upholds Lesbian Co-Parenting Order

In an important decision on undecided questions of Colorado law, a three-judge appellate panel ruled that Elsey Maxwell McLeod, the former domestic partner of Cheryl Ann Clark, was entitled to parenting time and responsibility toward the child whom Clark had adopted. It also ruled, however, that the trial court’s order restricting Clark from exposing the child to homophobic religious teachings required reconsideration based on freedom of religion considerations.

Clark and McLeod had been domestic partners for several years when they decided to adopt a Chinese child. When they learned that China does not allow joint adoptions by same-sex couples, they proceeded with Clark being the sole adoptive parent. When the couple brought the child back to Colorado, they obtained a judicial order granting joint custody of the child to the two women.

According to the court’s opinion by Judge John R. Webb, the couple’s relationship deteriorated partly because Clark believed that McLeod had bonded so closely with the child that it threatened to “leave out” Clark. When the couple split, Clark tried to gradually cut down the amount of contact McLeod had with the child, and filed a court motion challenging the custody order’s validity. Denver District Judge John W. Coughlin determined that the original custody order was valid and ordered joint parental responsibility, but gave Clark sole responsibility for the child’s religious care, subject to the provision, unexplained in the appeals court ruling, that the child not be exposed to “homophobic” teachings.

Clark appealed, citing the U.S. Supreme Court’s 2000 decision in Troxel v. Granville, invalidating a Washington state law that authorized awarding visitation rights to third parties over the protest of a child’s parents. As have many other courts, the Colorado Court of Appeals found that this was too broad a reading of Troxel, as the Supreme Court had not set up a total bar on custody or visitation claims by “unrelated” third parties. But, Webb found that McLeod must show a compelling state interest in overriding Clark’s objections to her role in parenting the child.

Webb found that the deep psychological bond between McLeod and the child provided such a compelling interest, since the state is legitimately concerned about avoiding harm to children, whether that harm is physical or psychological. The court affirmed the joint parenting order.

However, the court of appeals found that the trial record did not support the court’s order about exposing the child to “homophobic” religious teachings, finding that Clark’s freedom of religion was implicated, so that once again a compelling state interest would need to be shown to override her rights in this regard. The judge found that there was nothing in the trial record to suggest that exposing the child to “homophobic” religious teachings would cause harm to the child and the appeals court returned the case to the trial court for additional fact-finding on this issue.

The case attracted amicus briefs from a variety of organizations, ranging from the right-wing anti-gay Liberty Counsel organization to the National Center for Lesbian Rights and the American Civil Liberties Union of Colorado.

Gay Partner Strikes Out on Insurance Claim

After a State Farm Lloyd’s insurance agent assured them that they would both be covered by a homeowner’s policy he was selling, David Walker and Edward Blount, a Dallas couple, bought the policy for coverage beginning in 1995, and renewed it annually. The written insurance policy, however, only named Blount as an insured party, while containing customary boilerplate language about covering the insured’s spouse and minor children.

The couple lived together since 1991, with merged finances, and Walker’s contributions helped pay the insurance premiums

In 1999, the couple contacted State Farm about a water damage claim that resulted in the growth of mold, from which Walker developed medical problems. The insurance company removed some mold from the house, but the couple claims that it did not completely address the problem, as it was obligated to do under the homeowner’s policy. During 2002, State Farm covered hotel costs for both men when the house became uninhabitable, but it refused to pay damages for Walker’s medical problems.

Walker filed a lawsuit against State Farm in the federal court in Dallas, claiming breach of contract and negligence, among other grounds. The insurance company filed a motion to have Walker’s case thrown out, on the ground that he was not a “named insured” on the policy and did not qualify for coverage as Blount’s “spouse.”

Walker argued that the insurance broker’s representation to him and Blount that they would both be covered and correspondences from State Farm addressed to both men should be taken into account in determining whether the insurance policy applied to him. Buchmeyer rejected both arguments as well as the claim that discriminating against Walker as Blount’s same-sex partner violated Texas public policy.

Walker was not left totally in the cold, however, since the court found his allegations sufficient to merit a trial on his negligence and statutory claims.

“One who performs on a contract assumes a duty to all persons to use reasonable care not to injure them or their property in performing the contract,” wrote Buchmeyer, “and one who is not privy to the contract may assert a negligence claim for breach of that duty.”

The agent’s representations to Walker that he would be covered provided him an assurance that he could reasonably rely on, and in the absence of which he might have taken others steps to protect himself, Buchmeyer concluded, finding that Walker could also pursue an unfair settlement claim under Texas insurance law.

The case shows a very sympathetic judge who nonetheless concluded that a typical homeowner’s policy could not be interpreted to cover a same-sex partner of the insured party, unless the partner is also named.

No Asylum for Gay Lebanese Man

A 1998 advisory opinion issued by the State Department that found that “prohibitions on homosexual behavior went unenforced” in Lebanon helped to sink an asylum petition by Mohamad Abdul-Karim, a gay Lebanese man hoping to stay in the U.S. Abdul-Karim’s application for asylum was denied by the Board of Immigration, a ruling now affirmed by the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The unsigned opinion for the three-judge panel did not specify how the Lebanese man came to be in the U.S.

In his original asylum hearing, Abdul-Karim testified about former classmates in Lebanon being arrested for sodomy, and produced home-made translations of undated, but apparently old, newspaper clippings to support his contention that he had a reasonable fear of persecution if he were required to return. But the board concluded that this evidence, much of it second-hand and unverifiable, was not sufficient to overcome the 1998 finding by the State Department survey.

The court’s discussion of Abdul-Karim’s evidence suggests the possibility that better informed representation might have produced a more favorable result. For example, the newspaper clippings he submitted were undated and there was no certification as to the reliability of the translations. The court noted that under federal regulations, any foreign-language material submitted as evidence in an immigration hearing is supposed to consist of a “full English translation which the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.”

Britain Recognizes Gay Spousal Tenant Rights

Britain’s highest appeals court ruled on June 21 that provisions of the country’s tenant protection laws must be interpreted to treat same-sex couples as “spouses” in order to be in compliance with the European Charter of Human Rights, to which the U.K. is a party. The 4-1 ruling by members of the Law Committee of the House of Lords upgrades the rights of gay couples under existing British law.

In 1999, the Law Lords had ruled in the case of Fitzpatrick v. Sterling Housing Association, that a surviving same-sex partner was entitled to be treated like a “family member” of a deceased tenant for purposes of the tenant protection laws. In practice this would normally mean that the survivor would be entitled to remain in the rental house or apartment subject to a rent adjustment and possible claims by blood relatives of the deceased. In that case, the Lords had invoked the famous Braschi case, in which the New York State Court of Appeals treated a surviving same-sex partner as a “family member” of a rent controlled tenant for purposes of lease succession rights.

In the new case, Ghaidan v. Godin-Mendoza, the court had to take into account intervening developments in English law, most particularly the Human Rights Act of 1998 by which Parliament determined that wherever possible British statutes should be interpreted to comply with the country’s treaty obligations under the European Charter, which include protection against sexual orientation discrimination. (The British government is still working to revise its laws in this regard.)

In the meantime, on January 5, 2001, Hugh Wallwyn-James, who had been living in “a stable and monogamous homosexual relationship with Juan Godin-Mendoza” in his London apartment, died, and the landlord, Ahmad Ghaidan, brought a proceeding to reclaim possession of the flat so that he could rent it out at higher rates. Godin-Mendoza wanted to remain as a statutory tenant, at the same rent, as the law provides for surviving spouses. The Court of Appeal ruled that the tenant protection laws should be interpreted consistent with the charter to treat surviving same-sex partners the same as spouses.

The Law Lords affirmed this interpretation. The dissenter, while agreeing that treating Godin-Mendoza as a surviving spouse would be a desirable outcome, dissented on a point of principle; that it was not possible to interpret the language of the tenant protection law in this way. One argument made by the government in support of the landlord’s appeal was that the court should stay its hand because the pending legislation would resolve the policy issues by extending equal rights to same-sex partners. But four members of the court were unwilling to grant that request.

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