Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children

Thursday, March 17, 2011 – Nancy Polikoff –
Beyond (Straight and Gay) Marriage

It’s always risky to predict the outcome of a case based on oral argument. Nonetheless, I’ll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state’s ban on adoption and fostering by anyone living with a nonmarital partner violates the state’s constitution. The ban was enacted by voters in 2008. You can watch the argument on the court’s website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.

Before the US Supreme Court’s decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state’s constitution. The importance of that case, Jegley v. Picado, played a large role in today’s hearing. The trial court found the ban a violation of the plaintiffs’ constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.

If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a “rational basis.” The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of “cohabiting” couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.

When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied “heightened scrutiny,” he said no. He said the “life” of the child was at stake (that’s how he characterized the state’s interest on several occasions) and that the state couldn’t be required to place children in the “riskiest” and “poorest performing” home environments.

In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state’s screening process is not good enough to weed out unsuitable applicants. They called the process “imperfect” and “not foolproof” and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and “slip through” their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.

So this is what it’s come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.

The lawyers for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between “cohabitation” and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court’s decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.

One of the court’s newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn’t live with a partner. (I wish she has left the qualifier “gay” off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.

And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants who sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that’s not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don’t think the Arkansas Supreme Court is buying it.

Delaware Supreme Court upholds de facto parent statute and upholds joint custody award

Tuesday, March 15, 2011 – Nancy Polikoff
Beyond (Straight and Gay) Marriage

Two years ago, in an opinion I criticized extensively, the Delaware Supreme Court ruled that a woman whose partner was a child’s only legal parent (through adoption) lacked standing to obtain custody or visitation when the couple split up. In response to that decision, the Delaware legislature amended its definition of “parent” to include de facto parents, a move I praised as extensively as I had criticized the previous court ruling.

A de facto parent in Delaware is one who:

(1) Has had the support and consent of the child’s parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child [as defined elsewhere to include meeting the child’s physical, mental, and emotional needs]; and
(3) Has acted in a parental role for a length of time sufficient to haveestablished a bonded and dependent relationship with the child that is parental in nature.

The legislature made the amendment retroactive so that the mother whose loss prompted the statutory reform could refile for custody, which she did. The trial court ruled earlier this year that Carol Guest (a pseudonym) was the de facto parent of the child, A.N.S, and it awarded her joint custody. The adoptive mother, Lynn Smith (also a pseudonym), appealed.

In a ruling released this morning under the name Smith v. Guest, the Delaware Supreme Court upheld the joint custody award. Smith had appealed on several grounds and lost on all of them. Of greatest significance, she challenged the constitutionality of the statute, alleging that it violated her right to raise her child as set out in the US Supreme Court case of Troxel v. Granville. The Delaware court got it exactly right when it disposed of Smith’s argument as follows:

The issue here is not whether the Family Court has infringed Smith’s fundamental parental right to control who has access to ANS by awarding Guest co-equal parental status. Rather, the issue is whether Guest is a legal “parent” of ANS who would also have parental rights to ANS—rights that are co-equal to Smith’s. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child’s grandparents) seeks visitation rights. Guest is not “any third party.” Rather, she is a (claimed) de facto parent who (if her claim is established, as the Family Court found it was) would also be a legal “parent” of ANS. Because Guest, as a legal parent, would have a co-equal “fundamental parental interest” in raising ANS, allowing Guest to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe Smith’s due process rights. In short, Smith’s due process claim fails for lack of a valid premise.

I could not have said it better myself. I hope this reasoning resonates throughout the country and provides an alternate narrative to the one that has prevailed in some states that take a cramped view — and certainly not a child’s view — of what makes a parent.

“Non-Bio” Gay Dad Prevails in Texas Parentage Battle

Huffington Post – Frederick Hertz – March 8, 2011

A recent decision by the Texas Court of Appeals in Houston illustrates the complexity — and the nastiness — of one particularly ugly gay divorce. The partners lived in Houston but they traveled to Canada in 2003 to get married and then they registered as domestic partners in California in 2005. Because of the restrictions on gay partnerships and parentage in Texas, they arranged for a surrogate in California to bear their child (with sperm donated from one of them). Prior to the child’s birth they obtained a pre-birth declaration of parentage under the Uniform Parentage Act, which is lawful in California. A pre-birth parentage judgment is one of those newly-created legal devices to establish parentage for gay male couples using a surrogate,with both men designated as legal parents even though only one of them has a biological connection to the child. The non-standard nature of this proceeding has become the subject of legal conflict, now that the couple has broken up.