Jennifer Roback Morse

I hate to disagree with my friend Glenn Sacks, but I think he has missed the boat in his recent comparison of lesbian “social” mothers with divorced fathers. Mr. Sacks, a prominent fathers’ rights advocate, is correct that in both cases, family law courts diminish the claims of people who want to maintain a relationship with a child. But he is very much mistaken in equating the validity of the two types of claims. And fatherhood is at risk, no matter how the court resolves particular disputes between estranged lesbian partners.

In the Miller v. Jenkins custody dispute between members of a lesbian couple, the biological mother of the child is attempting to prevent her former partner from seeing her child. Mr. Sacks argues that the former lesbian partner corresponds to the dispossessed father in garden-variety custody cases. He correctly notes that many mothers attempt to sever ties between their children and their biological father. Since the estranged husband is a “former partner” just as the lesbian social mother is the “former partner,” Sacks seems to suggest that their claims are equally deserving of court protection.

But the lesbian “former partner” has no biological connection to the child whatsoever, while the divorced mother’s “former partner” is the father of the children. Biological fathers are strangely absent from lesbian custody cases. The only reason the lesbian partners could have a child together in the first place is that the rights of the father are deliberately obliterated. The law creates a fiction that anonymous sperm donors are “legal strangers” to their children.

The biological father makes a cameo appearance in the 2005 Washington case, In re the Parentage of L.B. The lesbian couple used the semen of a friend, rather than an anonymous sperm donor. When the couple broke up, the biological mother cut off contact between her child and her former partner. The mother formed a relationship with the biological father, and they ultimately married. The father’s name was added to the birth certificate.

The former partner successfully petitioned to obtain the status of “de facto parent.” This status gives her the same parental rights as the child’s biological parents. The court established a four-part test for determining whether a person warrants the status of "de facto parent."

Jennifer Roback Morse

Jennifer Roback Morse, Ph.D., is the author of Smart Sex: Finding Life-long Love In A Hook-up World. She blogs at

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