When Christine and Janis met and fell in love in the early 1990s, they did what most heterosexual couples do: They partnered and soon discussed having children.
The lesbian couple, though they could not legally marry, moved in together, and one of them, Christine, soon gave birth to two children, a boy, now 4, and a girl, 2, through artificial insemination.
By all accounts, they were a happy family. That is, of course, until the breakup.
Christine and Janis, of Westchester County, N.Y., have become embroiled in heated court battle over the custody of the two children in a case that is emblematic, experts say, of an increasing number of gay and lesbian couples who must negotiate uncharted legal territory when it comes to custody disputes.
“These are horrible cases on all fronts,” said Chris Hwang, a lawyer with the National Center for Lesbian Rights, which handles a number of family law cases involving lesbians.
A Ruling Brings Tears
A sobbing Janis, overcome with joy, left the Westchester Family Court on Monday after learning that she would be able to visit the two children that she and Christine raised together for the first time since November, when the couple broke up. A judge ruled that Janis, who is neither the biological nor legal parent but who was the family’s “breadwinner,” had the right to sue for visitation. Janis will be allowed to visit with the children every other Sunday for four hours while the court continues to hear arguments for permanent visitation rights. “I just can’t wait to hug and kiss my kids and not let go of them for four hours,” a tearful Janis told reporters outside the courtroom.
Courts Mixed on Custody Issues
As more and more gay couples, particularly lesbians, are raising children together, legal experts are starting to see more custody battles make it to court.
In Florida and in California, courts have ruled that lesbian ex-partners should not have visitation rights with the children they helped raise, no matter the circumstances.
Some state courts have refused to hear such cases on the grounds that current laws do not apply to same-sex cases involving disputes over visitation rights. But, increasingly, legal experts say, courts are recognizing that non-traditional families should be considered in the legal process. Last June, Massachusetts’ highest court granted visitation rights to a lesbian who helped raise her ex-lover’s son, ruling that the woman was a “de facto” parent to the boy.
Since that case, Kauffman said, more lesbian parents have had standing to get their cases into court. “That is always the first hurdle,” she said.
In April, in a case that legal advocates for gay and lesbian rights say is the strongest ruling of its kind to date, the New Jersey Supreme Court declared that a lesbian who helped raise her ex-lover’s twins was a “psychological parent.” The court ruled that the woman had the same legal rights of any parent when deciding custody issues.
“There have been a number of cases addressing this issue, and in some sense, it is all over the map,” said Michael Adams, associated director of the American Civil Liberties Union lesbian and gay rights project. “ There is no clear trend. But given that, until recently, there were no cases in which parents of this type were granted parental rights, it does show that there is more recognition of non-traditional parents.”
Breakups are no less painful for homosexual couples, said Joyce Kauffman, a Cambridge, Mass., lawyer, who handles family law cases, including those that involve lesbian parents. “People don’t always behave their best when they are breaking up,” she said. “The sad thing is there is no legal process (for gays and lesbians) to help people through that process.”
Kauffman said she and a former partner split custody of their daughter when they broke up 14 years ago — without going to court.“I was the biological parent and I had the legal right to say no, but I didn’t feel I had the moral right to do that to my daughter,”she said of her own situation.
After meeting in the early 1990s, Christine and Janis, the Westchester County couple, decided to bind their relationship in a unofficial commitment ceremony in 1993. Both participated in the planning for the pregnancies and subsequent births, according to court papers. The couple also executed reciprocal wills, baptized the children and named them using both their last names.
Janis was the family’s primary wage earner and Christine stayed home with the children. In papers filed with the Westchester court, Janis argued that she had formed a “parental bond” with the children in the years the couple lived together.
“Christine chose Janis as a partner and a co-parent,” Judge Joan Cooney said in her ruling Monday. “These children have the right of any other children to continue a loving relationship with their parents.”
But when the couple broke up last fall, Christine refused to allow Janis to visit the children, and later, during the recent court hearing, accused her former lover of abusing the children. In turn, Janis presented witnesses who described her as a loving mother, whom the children called “Momma.”
Monday’s ruling was the first time a New York judge had granted visitation rights to anyone under similar circumtances, and is expected to be among a handful of precedent-setting cases when it comes to the issue of gay and lesbian parental rights, experts say.
Monroe Mann, the lawyer for Christine, said he would appeal the decision and ask for a stay of a court hearing scheduled in August to determine permanent visitation rights for Janis. “The law in New York is very clear,” Mann said. “Only a parent can get visitation. A parent is defined as either the biological or adoptive parent and (Janis) is neither.”
The Associated Press contributed to this story.