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Assisted Reproduction

United States Supreme Court Allows California Lesbian Parent Decision To Stand


The United States Supreme Court declined to review a California Court of Appeal decision awarding custody to a non-biological parent.

The United States Supreme Court declined to review a California Court of Appeal decision that held that a non-biological lesbian mother was a legal parent of a child she had with her ex-partner. Professor Julie Shapiro has a great summary of the decision:

Charisma and Kristina began dating in 1997, moved in together in 1998 and entered into a domestic partnership in January, 2002. Just before that, they decided they wanted to have children. After some effort, Kristina became pregnant and a daughter, Amalia, was born in April 2003.

For the first six weeks of Amalia’s life, the two women shared parental obligations. At that point Kristina went back to work and Charisma took over full-time parenting responsibilities. Sadly, the relationship between Charisma and Kristina did not last much longer than that. Kristina and Amalia moved out in July, 2003, roughly four months after Amalia was born.

In May, 2004, Charisma sought recognition as a legal parent. Kristina had allowed her to see Amalia a couple of times over the summer the separated, but had blocked all visitation after that. In 2005 Kristina moved Amalia to Texas.

This is one of those cases made much harder by the passage of time. Charisma initially lost, the court finding she was not a parent. She appealed this ruling, but there was a further substantial period of time during which she had no contact with Amalia. In time the ruling was reversed and the case returned to the trial court for more hearings. In May, 2008, the trial court adopted a plan that would allow for Charisma’s gradual reintroduction into Amalia’s life. The appellate opinion is the appeal from that order.

Charisma’s ultimately successful claim was that she was entitled to be treated the same as a similarly situated man would be. If a man had conducted himself as Charisma had, he would be a presumed parent under California law. (This law is dictated by virtue of a California statute.) Since the law is to be applied in a gender-neutral fashion, Charisma sought to have the same principle applied to her.

The California Supreme Court had already adopted this reasoning in an earlier case involving lesbian mothers, Elisa B. (This is what led to the reversal of Charisma’s original loss.) Kristina sought to distinguish this case because Charisma only lived with Amalia for a short time. The court rejected her argument because nothing in the language of the statute suggested that there was a particular period of time that had to elapse. The statute required only that the person receive the child in to her/his home. As I said, the United States Supreme Court has refused to review the decision so it is now final. Charisma has been allowed to spend time with Amalia since the appellate court rule.

By their ruling, the United States Supreme Court took another step to ensuring equal rights among all parents, regardless of sexual orientation.  Of note, Charisma was represented by the National Center for Lesbian while Kristina was unsuccessfully represented by Reverend Jerry Falwell’s Liberty Counsel.  A good day indeed.


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