Lesbians Face Custody Battleground

With a mother’s love, Kathleen Crandell writes every week to two girls she cannot visit. Whether they get the letters, she doesn’t know.

Crandell helped rear the girls before splitting with her lesbian partner. She considers them her daughters. Distraught when excluded from their lives, she sued for visitation rights--and lost. Under California law, she has no greater right to access than a stranger.

“I don’t think, unless you’ve lost a kid, you can even fathom what it’s like,� Crandell says. “It’s pretty much every moment. It’s a constant level of missing them.�

Similarly wrenching cases are surfacing across the nation as more lesbian partners rear children born after artificial insemination. When such couples separate, dissolving a union that no state recognizes as marriage, the partner who is not the biological parent finds herself in legal limbo.

In California, New York and Florida, state courts have ruled within the last 18 months that lesbian ex-partners are not entitled to visitation rights with children they helped nurture, regardless of how deep the emotional bond.

Massachusetts’ highest court, in contrast, granted visitation rights in June to a lesbian who helped rear her ex-partner’s son. The woman was a “de facto� parent, said the court, winning praise from gay-rights groups for asserting that nontraditional families deserve legal respect.

The Massachusetts judges were venturing into a legal vacuum; one dissenting justice condemned the ruling as an unwarranted step toward endorsing same-sex marriages.

Courts in many other states have sided categorically with the biological mother in such disputes, ruling that estranged lesbian partners have no more legal right to demand visitation than a long-term nanny or close family friend.

“The courts aren’t used to looking at people without a biological relationship as being a child’s parent,� says Michael Adams, associate director of the American Civil Liberties Union’s lesbian and gay rights project. “We are forced to work within laws passed by legislatures that simply never considered these circumstances, and we can get some very unfortunate results.�

Gay-rights activists don’t contend that every ex-partner’s demand should be granted. But they do want courts at least to consider whether requested visitation rights might be in a child’s best interest.

“We want courts to force our families to play by the very same rules that heterosexual couples have been forced to play by for decades,� says Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco. “We don’t want anything special or different.�

In Crandell’s case, the California Supreme Court in July let stand an appeals court ruling against her. The lower court said no legal grounds exist for granting visitation rights to a non-parent over the biological mother’s objection.

“It’s the height of irony, given that California has perhaps more lesbian couples raising children than any other state,� Kendell says.

“We’re not talking about live-in girlfriends. We’re not talking about a nanny. We all know a parent when we see one--someone who read a child stories at night, who changed their diapers, who was there day in, day out, nurturing and caring.�

Crandell, now 43, and her partner started living together in 1985 when the partner’s daughter was almost 3. Two years later, the partner gave birth to another daughter by artificial insemination.

The couple jointly reared the two girls until separating in 1990. In 1994 the ex-partner demanded that Crandell cease her periodic visits.

The court ruling means Crandell cannot see the children until they turn 18. They are now 17 and 12.

Crandell hasn’t ruled out trying to take her case to the U.S. Supreme Court, though she has modest hopes. “Nothing has been more important to me than asking for my children in every possible way,� she said in a telephone interview.

The next major ruling on the issue may come in New Jersey. The state Supreme Court plans hearings this fall on an appeals court’s split decision granting a lesbian visitation rights to her former partner’s twin toddlers.

The twins, a boy and a girl, were born two years after the women began living together, and the plaintiff shared child-rearing duties with the biological mother. Each took turns changing diapers, picking up the twins from day care, rocking them to sleep.

To date, virtually every high-profile court case regarding children of same-sex partners has involved lesbians, not gay men. That could change, however, as liberalized adoption policies expand the ranks of gay fathers.

Although many gay-rights groups have intervened in the court cases to espouse the validity of same-sex partnerships, they would prefer that couples avoid litigation.

This summer, an alliance of groups published guidelines for same-sex couples, urging those who want children to agree in advance on how to solve problems that might arise if they separate. Options vary from state to state, but it is often possible for a partner to become a legal parent through guardianship or adoption.

“There are ways to resolve these things outside of court,� says Mary Bonauto, a Boston lawyer who drafted the guidelines. “We have a legal system that for the most part does not acknowledge the legal existence of our families. So it’s important that we honor our own agreements.�

Bonauto, civil rights director for Gay and Lesbian Advocates and Defenders, says children of same-sex couples, and the gay-rights movement, can be losers when a case goes to court.

“It is extremely damaging to our community and our families when we disavow as insignificant the very relationships for which we are seeking legal and societal respect,� she wrote in the guidelines.

As a positive example, Bonauto cites Joyce Kauffman, a lesbian-rights lawyer in Boston who settled a child-custody dispute with her former partner without litigation.

Kauffman gave birth to her daughter, Becca, as a single mother 15 years ago, and soon afterward began a relationship that lasted four years.

When the partners broke up and realized how distraught the child was, they decided to continue co-parenting. For the last 10 years, Becca has spent half of each week with each of the women, who live a few blocks apart.

“My daughter still calls both of us Mom,� Kauffman says. “It was not my favorite thing to do, to deal with my ex-partner all the time. But I didn’t feel I had any right to curtail my daughter’s relationship with her. I felt morally it would have been wrong.�

Kauffman is frustrated by the tactics some lesbian mothers use to oppose visitation rights.

“We’ve been working so hard for so many decades to gain respect,� she says. “Then to have people within our own community use homophobic law against other gay and lesbian people--that really troubles me. If we don’t respect our own relationships, how can we expect other people to respect them?�