On July 18, 2014, “the United States Court of Appeals for the Tenth Circuit struck down as unconstitutional Oklahoma Constitution Article 2, Section 35’s ban on same-sex marriage. Bishop v. Smith, 760 F. 3d 1070 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014).
One of the worst situations for an attorney to face is not being able to find a way to help a client.
Before July 18, 2014, I had several people come for consultations to see if there was anything we could do to help them. The typical scenario in all the cases was, a woman would come see me that had been in a same-sex relationship and now she and the other partner were no longer together. When they were together they had a child, or children, together with the intention of raising a family. The woman who came to see me was always the non-biological parent in the relationship and now that the relationship was over, the biological mother was no longer allowing for a relationship between the child(ren) and the non-bio parent. The question was always: is there anything we could do to make them cooperate? Was there anything we could do through the courts to fix this horrible situation?
Before Bishop, if a couple came to see me and they were raising children together, we could do a Co-guardianship case that basically gave both parents, both bio and non-bio, rights to the child. If they were coming to see me after the relationship was over – trying to do a co-guardianship was out of the question. Both parents would need to be in agreement to this type of arrangement.
These were some of the most heartbreaking consultations I ever had to do. A person, who had helped with the insemination of the biological parent, had been there through the pregnancy just like any parent who is excited and planning for the birth of a baby is, be there for the birth of “their” child, and depending on the age of the child – be there to help raise the child and consider that child theirs as if they had themselves given birth; now they were being told none of that mattered. They aren’t a parent. Go away and forget this ever happened.
When U.S. v. Windsor, 133 S.Ct. 2884 (2013), happened – we cried! When Bishop v. Smith, 760 F. 3d 1070 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014) happened, we cried! Windsor meant that I could get married to my partner in a state that recognized same-sex marriages, and we did. On July 17, 2009, we went to Des Moines, Iowa and got married, four months after it was determined same-sex marriage was constitutional in Iowa.
When Bishop happened, that meant that our marriage was recognized in Oklahoma. It meant couples in same-sex relationships could now get married in Oklahoma. We went to a celebration the night this came down and celebrated this historic event.
After the celebration I spoke to the Legal Director for the ACLU and he asked me, what now? Now that same-sex marriage is legal, what did I perceive as the next big thing that would need to be tackled. I immediately told him about the people who came to me with no recourse for resolving their issues of being a parent but now not being recognized as a parent because they couldn’t legally get married.
Even if the couples never chose to get married when they were creating their families, just like opposite-sex couples who choose not to get married and create a family – there would be some recourse in the courts to recognize the other parent as a parent and establish custody and visitation – basically all the rights any parent should be able to enjoy if couples could legally get married and just chose not to.
Not too long after Bishop was decided a case came down from the Oklahoma Supreme Court addressing this very issue.
Eldredge v. Taylor, 2014 OK 92 “This Court recognized that public policy regarding parentage was changed as of Bishop. Because of Bishop, not only did this Court find that Eldredge had standing, but it also went further, stating, “the Oklahoma Legislature recognized a public policy in favor of a parent sharing some or all child-rearing responsibilities with another person regardless of gender. 10 O.S. Supp. 2014 §§700 – 701.” (Eldredge, ¶ 17). “Oklahoma has a strong public policy that custody and care of children should be based on their best interests… thus any scrutiny of the Agreements must be based on whether the provisions are in the best interests of the children.” (Eldredge, ¶ 18).”
“As a parent, Taylor is presumed to have acted in the best interest of the children when she conceived the children with the intent that Eldredge would be for all practical purposes a parent to the children. Likewise, Taylor is presumed to have acted in the best interests of the children when she acted in a manner consistent with that intent – she executed Agreements in which she allegedly consented to sharing her parental authority over the children, she encouraged a parental relationship between Eldredge and the children, she held Eldredge out to the world as the children’s parent, and she accepted Eldredge’s financial and emotional support as a parent even after they separated.”(Id. ¶ 20).
“for years, (Taylor) reaffirmed this intent by accepting financial and emotional support from her partner and actively nurturing the relationship between her partner and the children. The public policy of this State mandates that the district court consider the best interests of the children before they lose one of the only two parents they have ever known.”
This decision placed an emphasis on all the facts before and after the birth of the children, but also stood on the fact that there was a co-parenting agreement, basically a contract, between the two parents.
After Eldredge was decided I had three women come see me about this same issue. The children were all different ages, the facts in each case were somewhat different, but what was the same was that these non-biological mothers were not being allowed to be a parent to the children they helped bring into this world, helped raise and had been held out as a parent up until the breakup of the parties.
What was distinguished their cases from Eldredge was, none of them had a co-parenting agreement.
Naidu Law took all three cases. We contacted the ACLU and they got involved as well. We filed a Parentage Petition to begin a case to establish custody and visitation and in all three cases the other parent filed a Motion to Dismiss based on lack of standing. In all three cases the judges granted the Motion to Dismiss. This was our ticket to the Oklahoma Supreme Court. It would’ve been nice for the clients if the Motion to Dismiss had been denied and custody and visitation established; the cases would have been considerably shorter and less expensive for them and they would’ve seen their children so much faster. Instead, they got the opportunity to create law in Oklahoma.
Ramey was the first case to come down from the Supreme Court. The Court concluded: This case is intended to recognize those unmarried same sex couples who, prior to Bishop and Obergefell, entered into committed relationships, engaged in family planning with the intent to parent jointly and then shared in those responsibilities after the child was born. Public policy dictates that the district court consider the best interests of the child and extend standing to the nonbiological parent to pursue hearings on custody and visitation. This decision does not extend any additional rights to step-parents, grandparents, or others. Accordingly, we find the district court erred in granting the motion to dismiss, and that Ramey has standing to pursue a best interest of the child hearing. The case was decided unanimously, 9-0; and the other two were decided exactly the same way!
Now, any non-bio parent who had helped in creating a family and did not have the luxury of getting married because it wasn’t legalized yet and met all the other standards put forth by the Supreme Court, had standing to pursue parentage rights.
The non-biological parents still needed to establish that it was in the child’s best interest to establish custody and visitation, but just like in opposite-sex couples, unless the non-bio parent is unfit, some type of custody, visitation and even child support should be found to be appropriate.
A case that didn’t have to go to the Supreme Court but was able to use Ramey as their basis for finding our client had standing was a different case I took on in Tulsa. In this particular instance the two mothers had adopted a child. Only, in Oklahoma, before Bishop, only one parent could adopt out of the couple and of course it wasn’t my client who had done the adopting.
We had a hearing on whether my client, who was unable to adopt, but had been a parent in every way, even so far as the child carried my client’s last name as part of her name, should have standing in a parentage case. We won that too! Now my client enjoys all rights and responsibilities to her child along with the other parent.
Ramey et al have been extremely instrumental in stabilizing same-sex families and children and Naidu Law is very happy to be a part of history!