The Chicago Tribune reported last week that a woman, identified as Wendy, “who raised two adopted children for years in a same-sex relationship is not considered their parent under Wisconsin law,” according to the District 4 Court of Appeals. The court ruled Thursday that Wendy’s former partner Liz is the only legal parent of the children because their adoptions were processed under Liz’s name. ”Same-sex couples do not have adoption rights in Wisconsin, meaning that only one of them can be considered the legal parent,” according to the Tribune.
As you can imagine, this decision is crushing for Wendy, who was a stay-at-home mom to the children for seven years. In response to the judge’s ruling, Wendy said, “I shouldn’t have to fight to parent my kids who I’ve been parenting 24-7. For me to read in the court documents that I’m not a parent is disturbing and troubling.” She is considering taking her case to the Wisconsin Supreme Court.
This ruling is in line with a recent decision by a judge in the UK, who determined the non-biological lesbian mother of a ten-year-old boy is not his legal parent. It does not, however, follow the precedent just set by the U.S. government allowing the partners of gay biological and adoptive parents who have an in loco parentis relationship with their partner’s child to care for said child under the Family and Medical Leave Act. The FMLA ruling does not indicate that non-biological gay parents are the legal parents of a child they care for, but that they have a legal right to care for their child. If gay parents have a legal right to care for a child that is ostensibly their child via the aforementioned in loco parentis relationship, then why, provided that they are responsible and loving parents, is it so difficult for non-biological/adoptive gay parents to be granted the same parental rights after a split? It just doesn’t make sense.
In the case of Wendy and Liz, they agreed to share custody of the children when they separated, but Wendy felt it was important she be named a legal guardian of her kids. Without legal guardian status, Wendy would not be able to visit her children in the hospital without Liz’s permission and might not automatically be granted custody of the children in the event of Liz’s death. As these things go, Liz “initially agreed to the guardianship, but then objected to the petition. A Dane County judge sided with Liz then Wendy appealed.” Fortunately, despite the fact that Wendy lost the case, she still shares custody under the informal arrangement she has with Liz.
Tamara Packard of gay rights group Fair Wisconsin said of the decision, “It gives the biological or adoptive parent an incredible amount of power and control over the non-biological, non-adoptive parent that can be used in ways that aren’t healthy. It does underscore the significant handicap that same-sex couples have in forming and safeguarding their families.”
The lesson here, in all of the same-sex custody cases I’ve been following, is that love does not trump the law. We all, straight or gay, want to trust that the love we have for our partners and their love for us will see us through anything. For straight couples who conceive a child together, it’s acceptable to wait until a break-up to determine parental rights and responsibilities. But for gay couples wherein there is only one biological or adoptive parent, it seems increasingly necessary for the other parent to legally solidify his/her parental rights before the relationship goes sour. It’s sad to have to think about relationships as finite, especially when there are children involved, but as the old saying goes, better to be safe than sorry. In states like Wisconsin, where same-sex couples have no adoption rights, that may be impossible.
Photo: dbking via Flickr