Everyone is wondering where Lisa Miller is hiding out with her daughter Isabella to avoid having to relinquish custody of the child to her former partner — and Isabella’s other mother — Janet Jenkins of Vermont.
But out on the West Coast, in Santa Cruz, Calif., Kim T. Smith and Maggie Quale have a custody matter of their own on their minds right now.
According to MercuryNews.com, Smith and Quale are former partners who had twin boys together through artificial insemination. The babies are now 10 months old, and since their birth, Smith and Quale have split up and Quale is now romantically involved with the man who was the sperm donor for the babies, Shawn Wallace.
Smith and Quale never registered as domestic partners with the state, but both Smith and Quale are listed as the babies’ parents on their birth certificates, and the babies have hyphenated last name of Quale-Smith. Smith wants joint custody, but Quale and Wallace say they should get to be the little boys’ only parents.
Family law attorney Deborah Wald, who is representating Smith along with the National Center for Lesbian Rights, said if Quale and Wallace win the custody battle it would set a “dangerous precedent for lesbians having children with assistance of known sperm donors.”
Quale’s lawyer, Darlene Kemp, says the case has nothing to do with sexual orientation or LGBT rights, and is just a legal dispute between two parties. She says Smith does not meet the legal criteria of a presumed parent.
Well, I am not sure what the legal criteria for being a “presumed parent” are in California. But surely the fact that Smith is listed as a parent on the babies’ birth certificate and the babies share her last name should carry some weight!
I am also wondering when the right-wingers are going to latch onto this case, as they have to the Jenkins-Miller case. Isn’t it funny how the same people who attack us for going against “traditional values” are the people who do their best to keep up from following those values by getting married and loving and caring for our children?
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How would this be handled if everything were exactly the same (including their lack of a legal relationship, since they could have gotten a DP if they’d wanted it) except Smith was a man?
“But surely the fact that Smith is listed as a parent on the babies’ birth certificate and the babies share her last name should carry some weight!”
The answer to that ignorant but passionate “opinion” is that Ms. Smith was not allowed by law to have her name placed on the CA birth certificate. Birth Certificates don’t establish parental rights. The fact that “somehow” her name got placed on the birth records without a court order smacks of criminal fraud. Ms. Smith was not a spouse or husband and could not sign a declaration of paternity because she is not a man. In CA, the mother can name her child anything, it does not establish parentage. IF she named the child “PITT-JOLIE” would that make BRAD PITT the parent ?.. of course not. If the precedent case of STEVEN S v. Deborah D (2005) CA is invoked….. Smith will lose because when a single woman uses ART to conceive, the “intent of parties ” does not trump the ” method of conception”. And if a mother wants no interference by another non parent in the eyes of the law (even the sperm donor) the court will determine that whatever the mother wants…IS in the best interests of the child.
Which is all the courts care about. Not what possible adults want that have no right to be a parent. There was no agreement signed for ART procedures. Smith has no legs to stand on except Judges can do what they please. I am shocked that even temporary custody was granted.
Mrs. DonorsWife:
I am not an attorney, and I don’t live in California. So I don’t know the legal technicalities regarding birth certificates. I would think that Smith would not – could not – have been listed on the birth certificate as a parent unless the birth mother agreed to it. But again, I am not a lawyer and cannot say that with any certainty.
So, I have sent an e-mail asking someone who is an attorney certified to practice in California to explain the legalities of the situation. When I get an answer, I will post it here.
I’m so disgusted that this case is even being heard and I’m, by far, not right-wing, nor am I anti-gay. This case has (or should I say “had,” but I’ll get back to that) absolutely nothing to do with gay rights. It is about guardianship. But now (I said I’d get back to it) this case is about some ACLUish organizations providing pro bono attorneys because the suing party is a lesbian. It wasn’t about gay rights until you said it was. If Smith was a man, not only would this case not even have been held in any legal standing whatsoever to be heard, any judge would have thrown it out, but the ACLU would have scoffed at the “civil rights” issue. But since she is a lesbian, Civil Rights organizations are twisting the facts. She’s not being discriminated against because she’s gay, she should lose this case not because she doesn’t deserve her civil rights, but because she doesn’t have custody rights.
To respond to the “dangerous precedent” quote. Think about the doors you’re opening if you pass this case, your honor. You’re not talking about lesbian’s rights to children here, adopted or otherwise. You’re talking allowing someone, who contributed zero to the conception and who left a relationship with a blood mother of two children deciding to sue for custody of those children. That’s the bottom line. If I divorce my wife I can’t sue for custody of her son, even if I am on the birth certificate.
One final thing Tammye, you say “isn’t it funny,” about what the other side is doing. I’m neutral and independent and for gay rights, and I think it’s funny how people like you turn things that weren’t sexual orientation issues into them to get your way. Here’s one for you, isn’t funny how left wingers claim people like Bush use their clout and corruption to do what they want, but never admit to doing the same thing when it comes to playing the race, gender, sex card on issues that weren’t about those things to begin with.
You, Tammye, and people like you are part of problem of why the true civil rights are so hard to gain right now. You are part of the reason the “right wingers” are against you. I bet you think the prop 8 commercials comparing the gay rights struggle to civil rights movement of the 60’s were accurate don’t you? That the comparison of not being able to get married is the same as not only not being able to vote, but not being able to walk down the street, everyday, everywhere without being afraid of being lynched. You probably think Mike Vick was being picked on because he’s black, don’t you?
Please stop making things into civil rights issues that aren’t civil rights issues. Stop crying wolf, or people will stop listening to you.
See CA Health and Safety Code 102425…….. what info is demanded for a birth certificate.
Then note that information filed in on forms to the government is done so under penalty of perjury.
Perjury…is a felony act. As is falsifying government documents. See CA Penal codes.
Again, just because someone puts down “misleading information” on birth forms under penalty of perjury … doesn’t make it legal or establish parentage …….. but it is a felony act.
Selfish people scarifying childern on the altar of homosexual “rights” Shame all of them
Matt, I totally support what you are saying. I appreciate your saying it. I am one of those right-wingers you all seem to be so afraid of. I’m not afraid of gays, and couldn’t give a fig about gay sex. but I am very concerned about how redefining marriage is going to redefine parentage. I doubt very seriously that it is possible to completely separate the two issues.
Re the birth certificate: it is my understanding that it is legal to put two women’s names on a birth certificate in CA. what legal standing that creates for teh 2 parties, I do not know. Typically, people fill out the birth certificate while they are still in the hospital. I suspect that a nice little lady came round to have them fill out the form, and let them put down whatever they wanted. the clerk in such a case would almost certainly be afraid to ask any questions of a two-woman couple who wanted to do this. I woudl be astonished if they had any kind of legal representation when they filled out that form.
Tammye, you say: “the people who do their best to keep up from following those values by getting married and loving and caring for our children.” You are begging the question. The whole question is whose children they are in fact. IN this case, the lesbian former partner meets none of teh criteria for being a parent.
Oops! I forgot to invite people to my blog where I am talking about this issue too. http://www.ruthblog.org
“I’m not afraid of gays, and couldn’t give a fig about gay sex. but I am very concerned about how redefining marriage is going to redefine parentage. I doubt very seriously that it is possible to completely separate the two issues.”
—The ONLY reason there are any difficulties about that are precisely because we aren’t allowed to marry. We already have laws and procedures in place covering stepparents, adoption, and fertility methods such as artificial insemination. There is, therefore, no logical reason to treat a couple consisting of two men or two women differently than a couple consisting of a man and a woman who cannot conceive together… except one, and that’s the fact that YOU WON’T ALLOW US to form the same legal union of marriage that’s expected of everybody else.
So, as I said before: treat this exactly the way the same case would be treated if whatsername was a man.
There are a few facts the article left out. Kim, the ex-partner, non-biological parent broke off the relationship and immediately petitioned for full legal custody of the twins. Quale the biological mother has no choice but to appear in court and fight for her own twins. If she doesn’t appear she could lose all legal rights to her babies like they did to the other case where the mother didn’t show up. Her website is asking for help in paying as she has no money left to fight for her own twins. The biological father came in after the breakup at the mothers request to initially help out with the twins (remember they are twins, twice as many diapers). In fact they always had an agreement that the father would be part of the twins life. Yes, I know these people and they are not any different than anyone else.
It’s ridiculous that this is even an issue. The twins are with their biological parents and they’re babies. They ought to work out something and let the ex-lesbian partner see them occasionally as a significant adult in their lives, especially since she’s been taking care of them regularly, but she shouldn’t have custody or be considered the legal third parent.