Creating ‘Parents’ and Destroying Parental Rights     7/12/2004 By Megan Roberts Two court decisions uphold homosexual “parenting.” In a frightening display of legal wizardry, two appellate-level courts created mothers out of two lesbian women who had no legal or biological connection to the children they sought to claim. In the Colorado Court of Appeals, the adoptive mother of a nine-year-old girl (referred to only as E.L.M.C.) was forced to allow her ex-partner joint parental responsibilities, except in the areas of dental care and religion. Similarly, the Second Appellate District Court of California ruled that a woman’s ex-partner was the “presumptive father” of a child who had been conceived by a sperm donor. Based on these rulings, ex-partners could claim substantial rights to children conceived or adopted by their former partners—even when those partners are deemed to be fit parents. ‘Psychological Parent’ In the Colorado case, Dr. Cheryl Clark adopted a daughter from China while in a lesbian relationship with Elsey McLeod. After the relationship failed and Clark became a Christian, she sought to limit and eventually terminate all visitations by McLeod. McLeod filed a motion for joint custody which was granted by the trial court and upheld on appeal. Under the July 1 ruling, the two “mothers” will almost equally share parenting responsibilities, time and decision-making. The court vacated the lower court’s ruling that Dr. Clark could not expose her daughter to “homophobic” religious doctrine and returned the case to the trial court to define “homophobic” and explain how the child might be harmed by it. Despite acknowledging that Clark is the child’s “only legal parent and is a fit parent,” the appeals court reasoned that since McLeod had been involved in the parenting of the child for several years, she had become a “psychological parent” and that separation from her would cause the child “emotional harm.” The opinion acknowledged that Clark has a “fundamental right to direct the upbringing” of her child, but held that “proof that a fit parent’s exercise of parental responsibilities poses actual or threatened emotional [emphasis added] harm to the child establishes a compelling state interest sufficient to permit state interference with parental rights.” The decision “nullified a parent’s 14th Amendment right to decide how much involvement a non-parent should have in a child’s life,” according to James Rouse, lead attorney for Dr. Clark. “No parent should have to live in fear that their child will be taken away from them or that their parenting rights will be given to someone else simply because an emotional attachment occurred,” Rouse said in a statement released shortly after the ruling. The court left unanswered the question of whether the best interest of the child could, absent any showing of unfitness or harm, be sufficient to allow a nonparent to petition for rights against a biological or adoptive parent. Presuming women to be fathers–the newest legal fiction In Los Angeles, Kristine H., who had become pregnant by artificial insemination, sought to vacate a prebirth joint parenthood agreement with Lisa R., her former partner. The trial court denied Kristine’s motion—a ruling an appeals court overturned on June 30. However, the appeals court ruled that though Lisa is neither the natural nor adoptive mother, she can claim rights as the “presumed father” under California’s Family Code. The Court based its decision on section 7611(d) which provides that “a man is presumed to be the natural father of a child if he … receives the child into his home and openly holds out the child as his natural child.” Ignoring precedent established in several previous rulings, including a case decided this past May, the court read the statute in a “gender-neutral manner” and held that Lisa is a “presumptive father,” apparently to avoid making her a second mother. Prior decisions in similar cases have held that “California law recognizes only one natural mother” and that “a child may not have two parents of the same sex.” Citing the constraints of the text, the Court rejected Lisa R.’s argument that she could be deemed the presumptive father under the state’s artificial insemination statute. “Lisa’s attempt to establish her parental rights under [this section] … requires that we rewrite the statute. We cannot do so.” Although the presumption of fatherhood may, under the statute, be rebutted by proof that another man is actually the biological father, the opinion held that provision inapplicable because there is “no question of biological parenthood to settle.” “Why this court felt constrained not to ‘rewrite’ the second statute when it had no qualms about rewriting the first one in order to make a woman a ‘presumptive father’ is incredible,” said Jan LaRue, CWA’s chief counsel. “I guess it’s supposed to convince us they’re not activists.” This ruling will allow the same-sex partner of a natural or adoptive parent to establish legal parentage of a child with whom he or she has no biological connection.