N.Y. Judge Allows Gay Divorce

Okay!

There's trouble in paradise.

A New York judge is going to allow a gay couple to sue for divorce, even though New York does not recognize gay marriages.

In this case, there are children involved and presumably, the custody battle will be no less contentious than in any other divorce.

In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.

Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M.

Donna M. had argued that her 2004 marriage should be invalid in New York because the state doesn't allow same-sex marriage, but Supreme Court Justice Laura Drager found that the out-of-state marriage could still be recognized under New York law. Her ruling appears to be the first divorce case in New York from a same-sex marriage.

abcnews.go.com...

The article raises several legal issues in this case that will be determined for the first time in our nation's history.

The question that keeps nagging me is what of the father or fathers of these children.

Are these children of past "opposite-sex" marriages?

Are these "turkey baster" babies?

Regardless, someone out there provided the sperm for the conception of these kids.

What about them?

A sperm donor can be held liable for child support.

Might he not have some say in the custody of his child, if he can in fact be identified?

abcnews.go.com...


[edit on 2008/2/26 by GradyPhilpott]

How can there be a custody suit? They're Donna M's kids.

They have two daughters, both born to Donna M.

Unless they're being abused any attempt to take them away from Donna would be kidnapping, even if the State gave the OK.


I dated a bi girl once who couldn't make up her mind. She'd keep saying she wanted to be with her girlfriend but I would keep waking up with her in my bed. Finally I just cut her off. When I found out a few months later she "married" (Kansas) her girlfriend I asked the messenger, "What did they jump over a broom?"

Much to my amusement... they did.

When they broke up two years later and I got that phone call, I didn't ask if the "divorce" involved the broom. I know it didn't involve a judge.

"What this decision shows is that it is just as important for same-sex couples and their children to have the same access to divorce courts and the whole process that we have to unwind a relationship," Sommer said.

abcnews.go.com...

This paragraph is what I'm really talking about.

Same-sex couples don't have children and the matter is not discussed in the article even though I think it's an important one.

Same-sex couples can adopt children either as single adults or as a couple. The children can be the product of previous heterosexual interaction or by some sort of artificial insemination.

Except in the case of adoption, where a single adoptive parent is the sole legal parent, every other case involves another.

Apc, you make a point that may be valid, but, unless I missed something, and I might have, it is not addressed in the article.

So, we are back to the question posed in the original post, even if it is hypothetical:

Should the father or fathers have some say in the custody of his child, if he or they can in fact be identified?

I'm just focusing on the absurdity of the custody issue. They're Donna's kids. Even if Beth legally adopted them while married to their mother, blood trumps ink. End of story on that as far as I'm concerned. The identity of the father is, in my opinion, irrelevant.

However, to explore that issue the father is likely in Canada. How does that figure into a so-called custody battle in a US court? If the father is an anonymous donor, I would have to say no he should have no say. Unfortunately the courts seem to have a habit of screwing over donors, so I don't know if they would agree. If the father was an active informed participant in conception, by whatever means, then yes his wishes should be considered.

>
alternately pluralize "father" as appropriate.



[edit on 27-2-2008 by apc]

Originally posted by GradyPhilpott
Okay!

There's trouble in paradise.
The article raises several legal issues in this case that will be determined for the first time in our nation's history.

The question that keeps nagging me is what of the father or fathers of these children.

Are these children of past "opposite-sex" marriages?

Are these "turkey baster" babies?

Regardless, someone out there provided the sperm for the conception of these kids.

What about them?

A sperm donor can be held liable for child support.

Might he not have some say in the custody of his child, if he can in fact be identified?

Okay.. People had babies. Let's take a big old deep breathe back, and try to not go to jail tonight Grady.

Unless, this is a post announcing that you're running for judge there and going to reinterrpret the law, you know what? It's still just you talking to cops on your porch about how you didn't really mean to say you we're going to shoot illgeals when you say it.

Hi. We've met.

reply to post by apc

With the miracles of modern medicine, both of them can be mothers. One donates the eggs and the other carries them.

Not saying that's the case here, but it happens.

Originally posted by Duzey
With the miracles of modern medicine, both of them can be mothers. One donates the eggs and the other carries them.

Without sperm?

Please explain.

reply to post by RANT


Rant,

That was the most irrelevant post I've seen in a long time.

Are you trying to be funny or just disruptive?

Perhaps, I'm missing something, but I don't think so.

I do have some professional experience in matters of child custody, in case you don't know.

And, while I don't have plans of running for judge anywhere, initiating a discussion of a matter that is unique in American jurisprudence on a Social Issues forum, does not require such.

As far as shooting illegals, I think you're being needlessly provocative, distorting the facts of an unfortunate incident in which my life was threatened, did not involve illegal aliens, to my knowledge, and it is not appreciated.


[edit on 2008/2/27 by GradyPhilpott]

Duzey, in that case there's one mother and one surrogate.

I'm also aware of some recent advances potentially permitting two women to combine DNA with that of a man and legitimately create a child with two mothers. However I do not believe this has succeeded outside the lab.

I think they should have a divorce and custody case. After all, states aren't obligated to recognize other states' marriages, they just do. For Donna to say that since NY doesn't allow gay marriage, there shouldn't be a divorce, is a little like me stating that I shouldn't need a divorce once I cross the state line because Arizona doesn't HAVE to recognize my marriage. Donna is trying to use the fact that NY doesn't recognize gay marriage to her advantage.

Shame on her.

If she got married, then she can and should have to deal with a divorce, regardless whether her partner's sex organs are on the inside or outside.

As regards custody, if the kids were born within the marriage, both of the women are the parents and should have the opportunity to have custody of the kids, just like a heterosexual married couple. Again, Donna is trying to take advantage of the fact that she bore the children. That doesn't make them "hers" any more than any heterosexual couple's kids naturally belong to the woman just because she carried and bore them.

If the biological fathers were interested in the children's welfare, there would probably have been some mention of that. Unless they are active fathers to the kids, I don't think they are really relevant here...

[edit on 28-2-2008 by Benevolent Heretic]

Your comparison is invalid because in a heterosexual family the children share the DNA of both parents. If the children have Donna's DNA, they are absolutely hers and not Beth's.

Originally posted by GradyPhilpott
Without sperm?

Please explain.

No explanation necessary as I made no such assertion.


reply to post by apc


True, but with wrinkles. I did a little bit of digging for precedents because it's an interesting question.

From the few cases of this nature that I was able to find (in the US court system), this is how I interpret your law on this situation. If Beth donated the eggs and signed a donor form, she has no legal right to the children. If Beth's eggs were used and Donna was a surrogate (no donation form signed), Donna has no legal right to the children.

I really don't know if this has any bearing on this case at all, but on the positive side of things, I learned something new - and that's always nice.



[edit on 28-2-2008 by Duzey]

I would agree with your interpretation of precedent if your hypothetical reflects the facts of this matter. The owner of the womb used to gestate doesn't really matter. All that should matter is chromosomes.

Originally posted by apc
Your comparison is invalid because in a heterosexual family the children share the DNA of both parents.

Not always. Sometimes they adopt. Sometimes there's a surrogate mother. Sometimes eggs and/or sperm are donated to make it possible for a married couple to have a child. The child of a marriage "belongs" to both parties.

So if a wife bears a child of a man not her husband, the husband has full legal rights over the child and the true father has none?

Donations are a separate issue entirely. One which I feel is disgustingly abused by modern courts. How can a male donor be held responsible for a child yet a female donor has no claim whatsoever once she signs on the dotted line? Once they both agree to be a donor, they should both be released from any legal responsibility of their donation.

Whether they have moral obligation is another argument.

But this is still entirely speculative in respect to this specific issue. We don't know if donations, surrogates, or any other marvels of modern science were involved. All we know based on this report is the children were born to Donna. *If* they have Donna's DNA, and not Beth's, they are Donna's children.

Originally posted by apc
So if a wife bears a child of a man not her husband, the husband has full legal rights over the child and the true father has none?

I'm talking about a child "born to a marriage". In other words, a child that is a product of a married couple. So, if a woman has an affair, that child is nota product of a marriage, it's the product of an affair, so the biological father WOULD have legal rights. If, however, the husband's sperm weren't viable and the couple searched out other alternatives to bring a child into the family, it would be a product of the marriage and would therefore "belong" to the married couple. (The rights of the biological father would be decided by law.)

Once they both agree to be a donor, they should both be released from any legal responsibility of their donation.

I agree with you here.

But this is still entirely speculative in respect to this specific issue. We don't know if donations, surrogates, or any other marvels of modern science were involved.

True. We don't know. But I'm assuming that these children were "products of the marriage". If they are Donna's from a previous marriage, you may be right. But if the women decided to have a family and Beth adopted them as they were born to Donna, she may well have the same legal rights of custody as Donna does. DNA be damned.

All we know based on this report is the children were born to Donna. *If* they have Donna's DNA, and not Beth's, they are Donna's children.

Just because we only know part of the story, doesn't mean we can just throw away the possibility that these children "belong" to both women as products of their marriage. We need more information to make either definitive statement.

DNA isn't the be all and end all of parenthood. Even by law. There are exceptions and if these children were products of the marriage, this could well be one of those exceptions. We can't know with the information we have.

What really matters is not chromosomes, though that does play a part. What is most important is the happiness and welfare of the child. That's where the courts can and should play a role. If a state, or states, recognize gay marriage, then divorce is the flip side of the coin, can't have one without the neccessity of the other.

Children, most unfortunately, are going to be caught up in the middle. Which of the couple is going to be the better parent? As with all cases, it has to be handled on a case by case basis.

If the children were Donna's by a previous (heterosexual)marriage, then I'd say yes, the father should have rights when it comes to custody.

Sometimes lesbians will conceive a child with a male partner who agrees to forego any parental claims. If that surrender of parental rights is not done legally, could the father later change his mind and decide he wants some say in his child's life? I would say that's possible and the case would end up in court if they couldn't agree.

In the case of artificial insemination I believe the sperm donor legally signs away his parental claims.As I understand it a surrogate mother does the same.

So what if the children were conceived within a lesbian marriage, either by artificial insemination or with the cooperation of a male partner? Or what if the child is adopted by the two women? I'd say then the "father" might well have custody rights. I don't agree with APC that DNA should be the only criterion. The material and emotional well being of the children should also be considered.

The effect on society of an increasing number of children without a responsible and involved father? Intuitively, I feel that couldn't be beneficial. I don't think, though, that we as a society will discard our scientific advancement--if you want to call it that--and renounce all methods of artificial insemination. It is up to us to reverse some negative social trends. The courts may well have to mediate in the process.



[edit on 3-3-2008 by Sestias]

I don't think DNA should be the end-all be-all decider, but it must be the basis upon which any further decisions are made and the true paternal relationship must always receive the benefit of the doubt.

A child born unrelated to one spouse does not magically become that person's child by way of marriage. If the true parent outside the marriage releases all rights and the false parent legally adopts the child, there still must be a substantial reason for the adoptive parent to have a greater claim to custody than their spouse, the biological parent. Abuse, neglect, or something else making them unfit or unable to properly care for their child.

In this case, if the children are the biological offspring of Donna, unless she is mistreating them in some conclusive way it would be state-sponsored kidnapping for custody to be awarded to Beth. Courts be damned. Nobody has that right.

This is a complicated matter and I've haven't posted because my bailiwick isn't family law.

Apc, you're reasoning might be sound good to you, but the courts do decide these things, whether anyone likes it or not.

I had trouble finding good answers on the net, I'm sure because the laws are different in all states and because the material I need is probably only available from subscription sites.

You would be surprised at the conditions that can lead to a person being granted parental or custody rights.

The court can rule that any person who provides material support for the child and lives the role of a parent can be given the rights of a parent.

I'm continuing to research this, so I'll be back.

When you consider the power of the courts, remember that in New Mexico, a man paid child support for years for a child that was never born and a man is financially responsible for any child his wife gives birth to while he is legally married to her.

The last I checked, in New Mexico, we had at least three kinds of parents who had legal claim to a child and of course, only one of those would be the biological parent.

Over the last three or four decades, the family has been defined and redefined so many times it is a virtually meaningless term.


[edit on 2008/3/3 by GradyPhilpott]