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2. Lesbian Parents pp. 343-49

2. Lesbian Parents pp. 343-49. In the Matter of Alison D. v. Virginia M. (NY 1991)

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2. Lesbian Parents pp. 343-49

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  1. 2. Lesbian Parents pp. 343-49 In the Matter of Alison D. v. Virginia M. (NY 1991) Facts: cohabited 1980-83; together planned for, conceived and raised son born to Virginia; couple split when son was 2 1/3 years old. He knew both as “Mommy.” Informal visitiation arrangement deteriorated. Some co-parenting until son 6 years old. Non-biological mother Alison petitioned for visitation.

  2. In the Matter of Alison D. v. Virginia M. (NY 1991) Maj.: aff’d App. Dvsn; statute does not recognize any visitation rights to one not a “parent”, despite close and loving relationship. Policy basis? Kaye dissent: Strict statutory interpretation visits enormous harm to 15.5 million children not living w/ 2 biological parents, including 8-10 million born to gay or lesbian parents. Proper focus of custody & visitation should be on unfitness of nonbiological co-parent.

  3. Per Justice Kaye, what’s the test for parental status? p. 347 BOP on π to show “actual assumption of the parental role and discharge of parental responsibilities. Relationship with child arose with consent of biological or legal parent & π has had joint custody of child for “significant period of time.” Other factors properly considered???

  4. Florida, case still pending on appeal FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant v. In re Matter of ADOPTION OF X.X.G. and N.R.G., Appellees 45 So.3d 79 (D.Ct. App., 3d Dist. Sept. 22, 2010) State statute categorically banning homosexuals from adopting children bore no rational relationship to a legitimate government objective, and thus under the rational basis test statute violated the equal protection clause of the Florida Constitution, when homosexual foster father petitioned to adopt two foster children who had been successfully placed in his care; single parent adoption was specifically allowed, statutes did not prohibit homosexuals from being foster parents) Relevant state agency conceded that gay people and heterosexuals made equally good parents, and established consensus of the scientific research was that there was no difference in the parenting of homosexuals or the adjustment of their children.

  5. Fox v. Fox, 904 P.2d 66, 1995 OK 87 1988 divorce awarded custody of 5 & 3 year olds to mother. Four years later, father sought sole custody on grounds that Mom is lesbian. Tr. Ct granted, Ct. App. Aff’d. Okla. S.Ct.: 5-4 decision, Justice Alma Wilson for majority. Held, trial ct. order was abuse of discretion; insufficient evidence to show best interests of children “directly & adversely affected by significant change of circumstances of custodial environment.”

  6. Fox v. Fox, 904 P.2d 66, 1995 OK 87 • Tr. Ct’s finding mother unfit “wholly w/o evidentiary support”; clearly erroneous • However, custody modification equitable in nature, affirmance of change of custody required if [any] supporting evidence. • Was no evidence Mom’s behavior has any adverse effect; rejected assertion of future trauma because of community’s disapproval. MUST present sufficient quality evidence to satisfy test.

  7. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) • Heather Finstuen & Ann Magro: long-term relationship; Ann gave birth to twins (assisted reproductive technology – ART); Heather adopted them in N.J., moved to Okla. for Ann to teach in Price Business College; Heather then entered law school. (star: EIC, 5th Cir. Judge) • 10th Cir.: Heather’s fear of having parent-child relationship invalidated does not satisfy injury-in-fact requirement for standing.

  8. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) • Lucy Doel: adopted E in California; Jennifer Doel adopted 6 months later in Cal., as 2d parent adoption. When requested Okla. birth certificate following enactment of statute, OSDH refused. • 10th: Art. III standing, both for state’s refusal to add Jennifer’s name as parent (depriving of existing legal status conferred in Cal.) & hospital’s refusal to allow her to accompany E in ambulance & E.R. “concrete, particularized injury”

  9. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) • Political history: AG Drew Edmondson opinion requiring OSDH to give full faith & credit to foreign adoption by same sex parent. • Legislature promptly enacted tit. 10, §7502.1.4 expressly denying state recognition of same sex second parent adoption from any other state or foreign jurisdiction. • Practical implications of denying full faith & credit to foreign adoption? See p. 10

  10. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) • Held, final adoption orders & decrees are judgments entitled to recognition by all other states under Full Faith & Credit Clause. Okla. amendment unconstitutional in refusing to recognize final adoption of other states that permit adoption by same-sex couples. (aff’dD.Ct. order re Doehls, but reverse as to Finstuen)

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