THE FAMILY : A Case of 2 ‘Moms’ Tests Definition of Parenthood

Nancy and Michelle’s story started out like something of a romantic idyll--late-20th-Century California modern.

They met in the summer of 1969, when they were in their 20s, and began living together. That November, marriage not being an option in lesbian relationships, they pledged lifelong commitment to each other in a private ceremony. They owned property together, bought a farm in Sonoma County and worked it, were active in the Quaker community.

By the time that commitment dissolved in 1985, two children were involved. Nancy had been artificially inseminated and given birth to a girl in 1980 and a boy in 1984. What once was a idyll is now before the state Court of Appeal.

In popular terms, this is a custody battle. In legal terms, it is about the definition of parenthood and whether the boundaries should be stretched to reflect the complex and non-traditional familial structures that are reality for an increasing number of people.

Michelle and Nancy’s story has taken a painful enough turn that both parties requested that their last names not be used and that the children’s names not be revealed. Michelle agreed to an interview only in the presence of her lawyer, Amy Oppenheimer. Through her lawyer, Carol Amyx, Nancy refused to be interviewed, preferring to let Amyx represent her.

If there is one thing all concerned seem to have in common, it is using the phrase “best interests of the children.”

“My client is very concerned about protecting her children’s privacy,” Amyx said, explaining why Nancy would not be interviewed or identified. “She is a very committed, caring person putting their best interests first.” Their best interests, Nancy says, would be served if the Court of Appeal upholds the February, 1989, ruling here in Alameda County Superior Court that Nancy is the sole parent of the children and that Michelle has no standing to seek custody or visitation.

“My whole point,” Michelle says of her struggle to be acknowledged as a parent, “is that children are treated as property owned by their parents. The courts do not go by the best interests of the children.”

At the National Center for Lesbian Rights, a San Francisco public-interest law firm representing Michelle in the appeal along with Oppenheimer, “the issue to us is the fact the courts are not willing to expand the definition of parental rights sufficiently to take into consideration the best interests of the children when the family does not conform to the traditional model,” attorney Maria Gil de Lamadrid said. “It’s clear to us the legal system has not caught up to recognizing that lots of families do not conform to that model.”

This is an age where the nuclear family has become one of many models, including remarried divorced people with children from three marriages, lesbian and homosexual couples raising children, surrogate mothers, and adults raising and nurturing children with whom they have neither biological nor adoptive relationships.

But just as there is no legal marriage in many of these relationships, there is no divorce law governing breakups.

“This is brand-new, cutting-edge stuff here,” Michelle said about her former relationship with Nancy, the conception and rearing of the children, and the court case.

After living together for 10 years, Michelle and Nancy decided to raise children. By then, in 1979, they were living in Berkeley, where Nancy taught elementary school and Michelle was a graduate student and teacher in biology.

Adoption was not an option for lesbian couples; only one woman could have legally adopted. Not choosing that route, and because Michelle had had a hysterectomy, it was agreed that Nancy would bear a child.

They found an anonymous sperm donor. Michelle performed the artificial insemination and was present at the birth of a girl in June, 1980.

The girl was given a surname from Michelle’s family. On the birth certificate signed by Nancy, Michelle, with an initial for a first name, is listed as the father. (The same procedures were followed in the conception and birth of the boy.)

The women presented themselves as co-parents and were accepted as such socially. They were given a baby shower. The Quakers held a welcoming ceremony for the girl. They were treated as parents by schools, medical offices, in records and papers. The girl called them by their first names at times, and called them both “mom,” as did the boy later on.

Then in January, 1985, about six months after the birth of the boy, the women separated. Nancy moved out with the boy, leaving the girl with Michelle. For the next 3 1/2 years, the boy spent most of his time with Nancy, the girl with Michelle, with visits, usually two days per week, to the other woman.

They discussed the possibility of Michelle legally adopting the girl, but Nancy would have had to relinquish her parental rights under the law, and neither woman wanted that.

Then, in September, 1988, after months of increasing difficulty between the two women and Nancy’s dissatisfaction with the custodial and visitation arrangements, Nancy went to court.

While both children were with Nancy, Michelle was served with a temporary restraining order barring her from contact with the children.

“It hit me cold,” Michelle said. “And it hit (the girl) cold. She just had what was in her backpack.”

Michelle was offered an agreement acknowledging that she had served “as a parent figure.” The agreement would have given her, in effect, joint custody regarding time with the children, finances, decisions about education, health and spiritual development. In return, however, she had to acknowledge Nancy as the sole biological or legal parent and accept her ultimate authority over the children, including the authority to change or revoke the agreement.

The agreement is unacceptable to Michelle, who says her relationship with the children, “my son, my daughter,” would be at “somebody’s whim.”

Michelle’s attorney supports her contention that she is a parent. Oppenheimer regards that concept of parenthood as an important one in the gay and lesbian community.

“I still agree parents’ rights are greater than non-parents’,” Oppenheimer said. “What bothers me is the way (Nancy) construes her argument. Being part of the community of gays and lesbians . . . Nancy spent so many years of her life trying to build a notion (of parentage), and now she’s using the law to deny it ever existed. It’s abhorrent.”

Most of the details of Michelle and Nancy’s relationship and the childbearing and parenting come from Michelle’s court declarations. “In broad outlines, we accept it,” Amyx said of the narrative. “It is undisputed they were raising these two children, that both were parent figures to these children.” But she argues that being a parent figure does not entitle Michelle to parental rights.

“It does not matter how she behaved like a parent to them. She behaved like a parent to them,” Amyx said of the details in Michelle’s court declaration. “. . .Nobody says she didn’t love these kids. We’re saying she’s not a parent. She’s like anybody else who wants to have a relationship with someone else’s children. She has to work it out with that parent.”

Amyx has based the case on the Uniform Parentage Act, passed in California in 1975 to prevent people from shirking parental responsibilities. That law defines parents as the biological or adoptive mother or father.

That strict definition of parenthood is disputed by a variety of organizations supporting Oppenheimer’s case. Among those filing friend of the court briefs are the Gay & Lesbian Parents Coalition International and the San Francisco Bay Area Lesbian/Gay Parenting Group, the American Civil Liberties Union Foundation, the California Chapter of the Assn. of Family and Conciliation Courts and Legal Services for Children.

There is no similar lineup of support on the other side, “only the law,” Amyx said firmly.

Oppenheimer argues that the Uniform Parentage Act is only one source of law and that existing case law provides policy and precedent for determining custody and visitation rights of non-biological parents.

To the ACLU, relationships such as those in dispute here are constitutionally protected by the principles of privacy and freedom of association.

Amyx, who describes herself as a committed civil libertarian and decades-long member of the ACLU, said she is appalled at their friend-of-the-court brief and called it “inappropriate.” “The issue of lesbian rights is not promoted by trying to get different rights than if you are a heterosexual,” she said. “Nobody else is a parent informally. If they are successful in changing the law, they’ll take away parental rights from those lesbians who are parents.”

“We’re asking to be treated exactly as heterosexuals,” Michelle said. “My children were treated differently because we’re lesbians.”

To Amyx’s “special treatment” accusations, de Lamadrid, of the Center for Lesbian Rights, said: “If there were marriage (for homosexuals), we would not be before the court. We are asking for an expansion of the definition of parent.

“We’re excluded from the possibility of being married. Only one parent has the possibility of being related to the child (because legal adoption is denied the other homosexual partner, since there is no marriage). Many types of parents cannot conform to the definition.”

“This is part of their law reform strategy,” Amyx said of the center. “The case has nothing to do with Nancy and Micki or the children’s best interests. It’s a political campaign. I’m not running a political campaign. I’m just representing my client in a lawsuit.”

Although Amyx is open to adoption laws being changed, she said of the Uniform Parentage Act and the definition of a parent, “the law should not be changed. It especially should not be changed by the court. It is for the legislature to decide if they want to change the definition of parent. It’s not a judicial function.”

She warned of opening the door to all manner of claims, from baby-sitters to child-care center workers to nannies, observing that “they get very attached.”

“Yes, there are gray areas,” de Lamadrid said. “The bottom line is what’s in the best interests of the children.”

In Nancy and Michelle’s case, Amyx said, “I think the children’s best interests are being served. I think they weren’t being served. I think Nancy made a mistake and God knows parents make mistakes. What evolved was, she recognized her mistake and realized she had to do something to rectify it.”

The offer of 50/50 custody no longer stands, Amyx said. “It’s much too much.”

The current arrangement is acceptable, she said: There are no visitation “rights,” but “there is visiting going on. As long as, in Nancy’s judgment, it’s good for the children, she is going to facilitate it.”

Nancy’s reasons for changing her mind, Amyx said, are not open to question because as the only parent involved, she is “entitled to make choices and decisions without publicizing them.”

Attorneys say the Court of Appeal may not decide the case for a year. For Michelle, at best, it will be a year in limbo. The girl’s room is waiting for her unchanged. When she sees the children, Michelle says, she tries “not to fall into the Sunday father” pattern of awkward excursions and stilted conversations.

In every sense of the word, she considers herself a parent, and of being a parent, she says, “It was the best job I ever had in my life. Hands down. It’s very hard now.

“Yes, I miss the holidays, but that’s not the worst part. I miss being in the house, fixing dinner for them and hearing them playing outside, figuring out what to put in their lunches, cuddling on the couch and watching TV. That’s the kind of stuff that’s so hard.”

It is the kind of detail that Amyx dismisses as legally irrelevant.

“If you want to be really harsh about it, wet nurses don’t get parental rights.”