Court Refuses to Expand Parent Definition

A state Court of Appeal refused Thursday to expand the legal definition of parenthood, ruling that a lesbian and others who are not natural parents have no right to custody or visitation of children they helped raise in a domestic partnership.

The panel unanimously rejected a Berkeley woman’s bid for parental rights to two children born to her female former partner through artificial insemination. On birth certificates, one woman was listed as the “father” of the children, but in the home of the couple both women were known as “Mom.”

The court expressed sympathy for the plight of the woman seeking custody but declined to broaden the law to grant new rights to “psychological” or “de facto parents” who were neither the natural nor adoptive parent of a child.

“Expanding the definition of a ‘parent’ . . . could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents or other close friends of the family,” Appellate Justice William D. Stein said in an opinion joined by Justices William A. Newsom and Robert L. Dossee.

The case drew wide attention in its novel attempt to alter the long-held traditional legal boundaries of parental rights. The woman seeking such changes was joined in her fight by several gay and lesbian legal groups, as well as the American Civil Liberties Union. Similar legal efforts are under way in at least four other states.

The couple, identified only as Nancy S. and Michele G., began living together in 1969 and later held a private, marriage-like ceremony. Eventually, they agreed to raise children by artificially inseminating Nancy. A boy and girl were born to Nancy but the couple never initiated adoption proceedings.

In 1985, the two women separated and a dispute arose over custody and visitation rights for Michele. Michele brought suit seeking parental rights, but Alameda County Superior Court Judge Ronald M. Sabraw ruled that under the state Uniform Parentage Act, sole physical and legal custody must be awarded to Nancy, the natural mother.

The Court of Appeal upheld that ruling Thursday, finding that despite Michele’s long-term role as a “de facto parent,” the law would not allow her recognition if she were neither the natural nor adoptive parent.

“We agree with (Michele) that the absence of any legal formalization of her relationship to the children has resulted in a tragic situation,” Stein wrote. But any such rights were policy matters to be determined by the Legislature, not the courts, the panel said. The court noted that there was nothing to prevent a child from being jointly adopted by someone who was the same sex as the natural parent.

Although the ruling denied new rights to any unmarried people who are neither biological nor adoptive parents, lawyers backing Michele saw it as a particularly sharp setback to gay and lesbian couples.

“The problem is, heterosexuals can get legally married, but gays and lesbians can’t,” said Amy Oppenheimer of Oakland, an attorney for Michele. “The court said this situation was tragic and it is. We are greatly disappointed.”

Maria Gil de Lamadrid, staff attorney for the National Center for Lesbian Rights, said that Michele was “truly a parent to these children--a parent in fact--and denying her custody and visitation will have tragic results for the children.”

The attorneys said an appeal to the state Supreme Court would be considered but that in the meantime, new efforts would be made to obtain state legislation recognizing same-sex marriages.

The lawyer for Nancy, Carol Amyx of Berkeley, welcomed the ruling as “a very well-reasoned and principled” decision. “The court showed its concern for the human aspects of the situation but adhered to the legal standards that apply,” Amyx said. “They also made it clear that the question of who is a parent has nothing to do with sexual orientation. The same rules apply for gays and lesbians as anyone else.”

Attorneys said the ruling would have broad effect on the apparently growing number of couples who, like Nancy and Michele, seek to raise children in non-traditional settings. But it would have no apparent impact, they said, on so-called surrogate-mother cases. In one such case, an Orange County judge ruled last October that Anna L. Johnson held no rights to a baby she was paid to bear by the infant’s genetic parents.