Elsey McLeod doesn't think she's asking for anything unusual. The Colorado woman just wants to continue her role as a parent to the daughter she jointly raised with her former partner, Cheryl Clark.
For nine years their little girl has known the women as "Mommy" and "Momma," respectively. But the only guardian listed on the child's adoption papers is Clark--MeLeod's name omitted by necessity because China, their daughter's country of origin, doesn't allow adoptions by gay or lesbian couples. Furthermore, Colorado doesn't recognize coparent adoptions by same-sex couples. With the fmancial support of an anti-gay marriage group, Clark--now an evangelical Christian--is trying to exploit the limitations of these laws to deny McLeod parental rights.
"Because of that inherent discrimination in Colorado law, gay couples are forced into a Solomonic choice--but in this case, you don't split the baby, you have to split who gets to be the adoptive parent," says Michael Brewer, legal director for the Colorado Legal Initiatives Project. The nonprofit group has filed an amicus brief on McLeod's behalf. So far, the courts have ruled in McLeod's favor, determining that she was the child's "psychological" parent and that the child would be emotionally harmed if the woman she calls Mommy is left out of her life. Clark is appealing that decision.
The U.S. Supreme Court's decision to overturn sodomy laws in 2003 and the Massachusetts supreme judicial court's decision to legalize marriage for same-sex couples this year together appear to signal a tectonic shift in regard to gay equality in the legal system. But gay parents who break up are still finding themselves in legal limbo, forced to sew together a patchwork of protections to ensure that both are shown due consideration as their children's legal parents. Some ex-partners use antigay laws to deny the other custody. "We joMngly call these the 'lesbians behaving badly' cases," says Patricia Logue, senior counsel with Lambda Legal's Midwest office. "They really mirror the complexity of where the country stands on gay relationships."
Expenses mount in fights with mixed outcomes for nonbiological or nonadoptive parents. Many are hoping the courts will begin sending clearer signals about what it means to be a gay parent and how that definition will play out in custody battles.
"The question comes down to, Are the courts ready to recognize our families?" asks Suzanne Goldberg, a visiting law professor at Columbia University who has won several gay rights cases.
Legal experts divide gay custody batties into two categories: cases between gay couples and cases between married couples where one spouse is gay. As several recent high-profile custody cases illustrate, the courts have been inconsistent in dealing with gay couples. In cases concerning formerly married parents, gay rights advocates point to progress in several notable rulings this year:
* In North Dakota, Valerie Damron now has custody of her daughters after the state supreme court overturned a ruling that had denied custody because her relationship with a woman gave her the "wrong moral character" to be a mom.
* In Tennessee, an appeals court overturned a ruling that Joseph Hogue's son would be harmed if exposed to his father's "gay lifestyle."
* In Missouri, Rachel Dickens will be getting another shot at custody of her daughter after the state appeals court ruled that an earlier decision was wrong in denying her custody because she lived with her same-sex partner.
A decision in a similar case in Idaho this year followed this same legal trend but bore mixed results for one gay parent. Following the case of Theron McGriff, the Idaho supreme court ruled that sexual orientation could no longer be used as the sole reason to deny custody. Nevertheless, the same court ruled that McGriff couldn't keep his children overnight if his partner slept in the same home. …