Gay Divorce?
September 8, 2005 5:13 AM Subscribe
Custody After Civil Union Pits States Against Judges (NYT) - This may be the most signficant custody battle to ensue following the collapse of a Civil Union. Are there any laws in place to allow the non-biological mother visitation rights over the three year old child born during this union? Vermont says yes, Virginia says no. Final verdict? Jury's still out, this one may go all the way to the Supreme Court.
klangklangston : Your question is answered in the second article. Full faith and credit does not necessarily apply if the state has already banned gay marriage.
Lawyers on both sides said that while it is likely the Vermont court will retain jurisdiction over the custody case, it is unclear whether Virginia will enforce an order based on a civil union law it does not recognize. Under the "full faith and credit" clause of the U.S. Constitution, state courts generally respect and enforce other states' judgments, but there are exceptions.
"The real showdown will be in Virginia, because giving any decision based on the civil union legitimacy would be the equivalent of exporting Vermont's law outside state borders, which is a dangerous precedent," said Mathew D. Staver, president and general counsel of Liberty Counsel.
Staver said the group fought to prevent a Georgia court from recognizing a Vermont civil union in a 2000 case, and in 2002 it helped persuade a Connecticut court not to dissolve a couple's Vermont civil union because it had no legal status in the state.
At least 38 states, including Virginia, have passed laws or amendments banning same-sex marriage.
posted by grapefruitmoon at 6:08 AM on September 8, 2005
Lawyers on both sides said that while it is likely the Vermont court will retain jurisdiction over the custody case, it is unclear whether Virginia will enforce an order based on a civil union law it does not recognize. Under the "full faith and credit" clause of the U.S. Constitution, state courts generally respect and enforce other states' judgments, but there are exceptions.
"The real showdown will be in Virginia, because giving any decision based on the civil union legitimacy would be the equivalent of exporting Vermont's law outside state borders, which is a dangerous precedent," said Mathew D. Staver, president and general counsel of Liberty Counsel.
Staver said the group fought to prevent a Georgia court from recognizing a Vermont civil union in a 2000 case, and in 2002 it helped persuade a Connecticut court not to dissolve a couple's Vermont civil union because it had no legal status in the state.
At least 38 states, including Virginia, have passed laws or amendments banning same-sex marriage.
posted by grapefruitmoon at 6:08 AM on September 8, 2005
"When I left Janet," Ms. Miller said in a telephone interview, "I left the homosexual lifestyle and drew closer to God."
"When I left Janet," Ms. Miller said in a telephone interview, "I stopped having sex with other women and developed a fetish for Jesus."
posted by three blind mice at 6:15 AM on September 8, 2005
"When I left Janet," Ms. Miller said in a telephone interview, "I stopped having sex with other women and developed a fetish for Jesus."
posted by three blind mice at 6:15 AM on September 8, 2005
"If the Virginia court is correct," Professor Koppelman wrote, "then no parental right arising out of a same-sex marriage is secure anywhere in the United States."
No parental rights are secure anywhere in the United States, where gay parents are concerned, married or not.
I think the key issue is this:
"Ultimately, what this case is going to decide is whether children born to same-sex couples should be treated the same or differently as other children."
Don't we have an equal protection statute? We're not allowed to set up a second set of rules for children born to mixed-race couples, just for that reason, for example.
posted by Rothko at 6:51 AM on September 8, 2005
No parental rights are secure anywhere in the United States, where gay parents are concerned, married or not.
I think the key issue is this:
"Ultimately, what this case is going to decide is whether children born to same-sex couples should be treated the same or differently as other children."
Don't we have an equal protection statute? We're not allowed to set up a second set of rules for children born to mixed-race couples, just for that reason, for example.
posted by Rothko at 6:51 AM on September 8, 2005
We're not allowed to set up a second set of rules for children born to mixed-race couples, just for that reason, for example.
You're kidding right? There are a second set of rules for the parents, why not for the children?
posted by three blind mice at 7:05 AM on September 8, 2005
You're kidding right? There are a second set of rules for the parents, why not for the children?
posted by three blind mice at 7:05 AM on September 8, 2005
bleh, I would hate to be a family court judge (just in general).
posted by delmoi at 7:09 AM on September 8, 2005
posted by delmoi at 7:09 AM on September 8, 2005
You're kidding right? There are a second set of rules for the parents, why not for the children?
posted by three blind mice at 10:05 AM EST on September 8 [!]
We don't (or we're not allowed to) discriminate against mixed-race couples for being mixed-race, nor do we treat their children any differently (legally speaking). Equal protection statutes aim to ensure this.
posted by Rothko at 7:31 AM on September 8, 2005
posted by three blind mice at 10:05 AM EST on September 8 [!]
We don't (or we're not allowed to) discriminate against mixed-race couples for being mixed-race, nor do we treat their children any differently (legally speaking). Equal protection statutes aim to ensure this.
posted by Rothko at 7:31 AM on September 8, 2005
We don't (or we're not allowed to) discriminate against mixed-race couples for being mixed-race,
Yes, but you do discriminate against homosexual couples for being homosexual... if there is no equal protection for homosexuals, why should you expect equal protection to be extended to their children?
posted by three blind mice at 7:38 AM on September 8, 2005
Yes, but you do discriminate against homosexual couples for being homosexual... if there is no equal protection for homosexuals, why should you expect equal protection to be extended to their children?
posted by three blind mice at 7:38 AM on September 8, 2005
Adding to Rothko's last comment: the reason states can't discriminate against mixed-race couples is that race is a "suspect class" according to the Constitution (i.e. afforded the most protection under the law). Because of this, any law that would discriminate based on race is subject to strict constitutional scrutiny. In contrast, homosexuality is definitely NOT a suspect class (and probably never will be); in fact, it's afforded the lowest level of protection.
That's why states (and the federal government) can discriminate against gay couples as they please.
posted by elquien at 7:41 AM on September 8, 2005
That's why states (and the federal government) can discriminate against gay couples as they please.
posted by elquien at 7:41 AM on September 8, 2005
"When I left Janet," Ms. Miller said in a telephone interview, "I left the homosexual lifestyle and drew closer to God."
Nice one, Christianity! It is soooo very "family values" to keep a child from its parent, (whether or not that is a court-defined "legal" parent.)
posted by Secret Life of Gravy at 7:46 AM on September 8, 2005
Nice one, Christianity! It is soooo very "family values" to keep a child from its parent, (whether or not that is a court-defined "legal" parent.)
posted by Secret Life of Gravy at 7:46 AM on September 8, 2005
if there is no equal protection for homosexuals, why should you expect equal protection to be extended to their children?
posted by three blind mice at 10:38 AM EST on September 8 [!]
Well, that's my point: if you allow some marriage somewhere to take place within the US, then a Supreme Court ruling that affords second-class status to the offspring of that relationship would be quite controversial. I don't think most Americans mind discriminating against gay men and women on the whole, but once you start giving substandard legal protections to their children, it becomes something where people might have to examine their value and legal systems a little differently.
posted by Rothko at 8:04 AM on September 8, 2005
posted by three blind mice at 10:38 AM EST on September 8 [!]
Well, that's my point: if you allow some marriage somewhere to take place within the US, then a Supreme Court ruling that affords second-class status to the offspring of that relationship would be quite controversial. I don't think most Americans mind discriminating against gay men and women on the whole, but once you start giving substandard legal protections to their children, it becomes something where people might have to examine their value and legal systems a little differently.
posted by Rothko at 8:04 AM on September 8, 2005
three blind mice: "When I left Janet," Ms. Miller said in a telephone interview, "I stopped having sex with other women and developed a fetish for Jesus."
me: "When I left Janet," Ms. Miller said in a telephone interview, "I stopped having sex with other women, even my own hand, which is why I'm so incredibly uptight right now."
Taking money from people who hate what you've stood for in your life is so Paula Jones plastic surgery, so 1998.
posted by bitter-girl.com at 8:12 AM on September 8, 2005
me: "When I left Janet," Ms. Miller said in a telephone interview, "I stopped having sex with other women, even my own hand, which is why I'm so incredibly uptight right now."
Taking money from people who hate what you've stood for in your life is so Paula Jones plastic surgery, so 1998.
posted by bitter-girl.com at 8:12 AM on September 8, 2005
> if there is no equal protection for homosexuals, why should
> you expect equal protection to be extended to their children?
Dunno about in the USA, but here in the UK, the dominant principle in family court is that decisions are made in the best interest of the child.
Presumably, if the Vermont parent can demonstrate that it's in the child's best interest for access to continue, the Virginia court would so order?
posted by PeterMcDermott at 8:35 AM on September 8, 2005
> you expect equal protection to be extended to their children?
Dunno about in the USA, but here in the UK, the dominant principle in family court is that decisions are made in the best interest of the child.
Presumably, if the Vermont parent can demonstrate that it's in the child's best interest for access to continue, the Virginia court would so order?
posted by PeterMcDermott at 8:35 AM on September 8, 2005
if you allow some marriage somewhere to take place within the US, then a Supreme Court ruling that affords second-class status to the offspring of that relationship would be quite controversial. I don't think most Americans mind discriminating against gay men and women on the whole, but once you start giving substandard legal protections to their children
... except that generally in the US children are seen more like property and less like independent agents in their own right. So, the laws that apply to the parents are the laws for the kids. In the case of split up Civil Unions like this one, the result is damned lousy.
In other words, I think people don't see it as a case of legal protections for the children since they're not being forced to go to different schools or in some other way not get things from the government that are due to them which was what a lot of the civil rights legislation was about. It will really be interesting to see what happens if this goes up to the Supremes.
posted by jessamyn at 8:38 AM on September 8, 2005
... except that generally in the US children are seen more like property and less like independent agents in their own right. So, the laws that apply to the parents are the laws for the kids. In the case of split up Civil Unions like this one, the result is damned lousy.
In other words, I think people don't see it as a case of legal protections for the children since they're not being forced to go to different schools or in some other way not get things from the government that are due to them which was what a lot of the civil rights legislation was about. It will really be interesting to see what happens if this goes up to the Supremes.
posted by jessamyn at 8:38 AM on September 8, 2005
Oops. I see that she's seeking joint custody and not access. I think it's rather unlikely in our courts that even heterosexual parents living so far apart would get joint custody, though they may get joint parental responsibility (ie, the father would have a right to be consulted on decisions, but all else being equal, the mother would probably get the custody.)
posted by PeterMcDermott at 8:39 AM on September 8, 2005
posted by PeterMcDermott at 8:39 AM on September 8, 2005
PeterMcDermott : As far as joint custody goes, I know in my own family that my step-brother's parents had joint custody and his mother was in Florida and his father in Vermont. It does happen. I can't imagine that in this particular instance that distance would be the deciding factor for the Virginia court.
posted by grapefruitmoon at 11:31 AM on September 8, 2005
posted by grapefruitmoon at 11:31 AM on September 8, 2005
Further complicating this discussion (because that's just so dang FUN!)...what about states that legally allow same-sex couples to adopt (Yea! California)? If my partner and I split, our son is equally ours. Our names are BOTH on the birth certificate, we did NOT biologically bear him. Should he go back to his bio-mom? Might interfere a little with her (happily FORMER) chosen profession...
posted by Griffins_posse at 11:46 AM on September 8, 2005
posted by Griffins_posse at 11:46 AM on September 8, 2005
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posted by klangklangston at 5:28 AM on September 8, 2005