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."
The dissenting judge, James Johnson, objected to this arbitrary determination of parental status. A perfectly fit biological and legal mother has the right to determine whom her child associates with. The only legal question is who is the child’s mother? The state legislature had clearly established methods for determining maternity of a child, including adoption. According to Judge Johnson, the social mother could have become the adoptive second mother of the child, with the biological mother’s consent, during the time that their relationship was intact and functioning. The couple chose not to take the step of second party adoption. Therefore, the estranged partner meets none of the legal requirements of parenthood.
In the meantime, the biological father, currently married to the child’s mother, is nowhere considered in this dispute. Perhaps he started off being just a nice guy, trying to help out his friends. The woman who used to be his wife’s sex partner now has equal parenting rights with her. His paternal rights are subordinate to the rights of his wife and her former partner. The fact that these two women used to have sex with each other is a more relevant fact than his paternity. He has no rights that the family court need respect.
Any random person who once had a relationship with a biological parent can potentially present themselves as a “de facto parent.” Suppose a husband and wife divorce. The wife gets the kids. She has a live-in boyfriend for a few years. If he meets the four-part test established by this court, he could obtain de facto parent status. That former boyfriend could have equal parenting rights with the two biological parents. This is far too much discretion to allow the family courts.
This is why the comparison between former lesbian partners and former married parents is not the relevant comparison. The proper comparison is between biological parents and other people. Let us call them “non-parents.” Trying to shoe-horn the lesbian partner into the legal slot formerly occupied by the father can only work if the father is safely out of the way. The Washington case strips away that fiction because the father was known to all parties. The law treats him as a non-person because that is what the law surrounding anonymous sperm donors requires.
This is why I am surprised that fathers’ rights advocate Glenn Sacks has taken this bait. What the state does or doesn’t do for lesbian social mothers does not concern me nearly as much as what the state has done and continues to do to fathers. The special legal status which treats a father as a “legal stranger” to his child does not further the interests of men, even desperate college kids who sell their sperm for two hundred bucks.
Family courts have been treating dads as disposable for far too long. Let’s not give them another occasion to do so by making this inopportune comparison of the estranged lesbian partner with divorced fathers.