FRANKFORT, Ky. (AP) — The 9-year-old Kentucky girl calls the woman “nommy” and bears her middle and last name. They lived in the same household until the girl was 4, and “nommy” once carried the child on her insurance plan.
But they are not biologically related. The girl’s mother — the woman’s ex-partner — became pregnant in 2006 with the help of a sperm donor, according to a court record that identifies the women and child only by their initials. The women ended their same-sex relationship in 2011, and now the biological mother has cut off contact with the other woman and married a man. That man is trying to adopt the child, and the other woman is trying to block the adoption before the Kentucky Supreme Court.
It’s one of several cases across the country involving wrenching personal questions about what it means to be a parent under today’s ever-changing definition of family in the eyes of the law.
While the U.S. Supreme Court effectively legalized same-sex marriage nationwide earlier this year, the ruling hardly settled the myriad family law issues surrounding the custody of children. Compounding the problem, the definition of “parent” differs from state to state, leaving same-sex parents with no biological connection to a child vulnerable to losing parental rights.
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“The law does not fit the reality of these families,” said Joyce Kauffman, a Massachusetts-based family law attorney who specializes in LGBT issues. “If there is no way that your parental relationship with the child can be recognized by the laws in the state where you live, you’re in trouble.”
The Kenton County Family Court ruled in favor of “nommy,” identified in court documents only as “A.H.” But the state appeals court ruled in favor of the biological mother, “M.L.” The state Supreme Court is scheduled to hear arguments in the case Thursday.
Attorneys for both women either declined to comment or did not return a message seeking comment. Amy Anderson and Jacqueline Sawyers, attorneys for the biological mother, noted in court filings that “the law may be emerging and may eventually be changed as it relates to children conceived, born and reared during a same-sex relationship.” However, they said the court must apply the statutes as currently written.
Similar issues have arisen in other states. In Maryland, a state appeals court ruled this summer that, absent a change in state law, “the non-biological, non-adoptive parent cannot prevail over the objection to custody and visitation by the biological mother.”
Some states are changing their laws to establish a new category: “de facto parent.” In Maine, a new law allows courts to recognize “de facto parents” if they meet certain standards, including living with the child for “a significant period of time,” establishing “a bonded and dependent relationship” with the child and having “accepted full and permanent responsibilities” as a parent without getting paid for it. In Massachusetts, a state judge recently awarded joint custody to a de facto parent and a biological mother for the first time.
In court documents, A.H. argues she had a shared parenting agreement with the biological mother. The child has her middle and last name. She was listed as a parent on medical, childcare and school documents. And the girl was covered under her health insurance plan for a time.
“(The girl) understands A.H. to be her mother,” Christopher Clark, an attorney with the Lambda Legal Defense and Education Fund, wrote in a brief before the state Supreme Court.
But the biological mother says the decision to have a child was hers alone. Her attorneys argue that while they did “live as a family unit” for a while, “it was never her intention to relinquish exclusive custodial rights in favor of ‘shared’ custody.” The biological mother says she did not consent for A.H. to cover the child on her health insurance plan nor allow A.H. to claim the child as a dependent on her tax returns. And she explains that “nommy,” the child name for A.H., is pronounced “no-me” and is a combination of the words “no” and “mommy.”
“She and the child may have had a bond and may have had a relationship with one another. And, A.H. may have been actively involved in the rearing of M.L.’s child while she and M.L. were together as a couple,” Anderson and Sawyers wrote. “But that does not make A.H. the child’s parent. At best, she is in the capacity of a baby sitter, nanny, au pair or some other non-parent relative who may spend time with a child.”
This story has been corrected to say the Kentucky Supreme Court hearing is Thursday, not Wednesday.