A Groundbreaking Parental Rights Case in RVA Between Same-Sex Partners
Editor’s note: This is the second in a series of articles by Annie Tobey regarding a high-profile parental rights case in Richmond.
Here in Henrico County, another battle is being fought, ongoing since 2009. An ex-partner Cathy McCarthey is claiming she has rights to visitation and custody of a five-and-a-half year old child, but the biological mother Kelly Decker says no. [For more information, see the recent Style Weekly article on the case.]
In this case, the two women did not plan the child together—the biological mother had been working towards in vitro several years before the two met, had chosen the donor sperm alone, and continued to visit the IVF clinic and pay for the process. The two women never entered into a civil union, even though they traveled together to Provincetown twice. A second-party adoption wasn’t an option for them here in Virginia, but they could have written up a co-parenting agreement. They didn’t. In fact, the biological mother didn’t do anything legally that she couldn’t undo legally of her own accord. She retained her full rights to her child. Or so she thought.
Given the lack of legal standing, the partner’s lawyer claimed that the partner and child had formed a bond that shouldn’t be broken, such that the child would be harmed without ongoing visitation: the best interests standard.
However, the biological mother has always been the primary caregiver (she even took a year off of work to be a full-time mom) and her mother, Nana, was the secondary caregiver. The couple broke up when the child was two and a half, though the girlfriend lived separately in the house for the next year as a roommate since she said she couldn’t afford her own digs, seeing the mom and daughter only occasionally. By time the ex-girlfriend had filed for custody and visitation, the child was happy, healthy, and well adjusted—and didn’t remember who the ex was.
In addition, the mother says that the problems she had with her ex-girlfriend are the same reasons she believes it would be very harmful to her child to spend time with the ex. She’s not keeping them apart out of spite or apathy, but because she feels it’s best for her child.
The case has been in court for over a year, and it hasn’t even reached the appeal stage. The mother has faced over $150,000 in legal bills and is emotionally drained. She continues to fight because, as any parent understands, she will go to the ends of the earth for her child!
In arguing this case, we could expend energy discussing the personal merits and demerits of each of these women. Would McCarthey be a negative influence on the child? Is Decker being vindictive and controlling by keeping MaCarthey out of her daughter’s life? Such arguments, however, are highly subjective, which means they are very difficult to resolve (even with lots of time, money, and emotional turmoil). Even worse, given the subjectivity of these questions, the conclusion may be wrong.
The harm-to-the-child standard is similarly subjective. Will the five-year-old child be harmed by not seeing a woman she lived with until she was two and a half? Unless the harm is significant, even the question of harm to a child—the best interests standard—is subjective, subject to interpretations and biases and prejudices. In this case, the obvious facts are that the child is happy and well adjusted and barely remembers the ex.
But let’s suppose for a minute that her ex isn’t as bad as the mom believes. Let’s look at the deeper underlying question: Should a rightful, fit parent be forced by the courts to share custody with an ex-girlfriend or boyfriend—or with some other “interested party”? Should a parent be forced to arrange a regular, ongoing visitation schedule with an interested party for the rest of the child’s years as a minor?
Those who would stand up for the ex-girlfriend would point to informal parenting privileges that the mom shared with her girlfriend, to the good times and memories that the child and girlfriend shared. Yet many of those same claims could be made for an aunt or an uncle, a godfather or godmother, a roommate who was great with kids. In fact, a nanny or day care teacher would have spent more time with the child. Those who would stand up for the ex would claim that the child was at harm by not spending time with the ex, even arguing that such court-ordered visitation or custody should continue unabated for the next twelve years, till the girl is eighteen. Yet in this case, the child is happy and well adjusted—by the reckoning of teachers and even the court-ordered psychologist—and still the battle continues. The jilted ex could certainly be having separation issues, but though that’s sad, it’s not reason enough for the measures she’s taken.
As members of the LGBT community, it may be tempting to rush headlong to the side of the ex-partner. After all, we are accustomed to fighting for rights. We have seen those biological parents who have indeed separated a loving “acting parent” and child. The person who has lost visitation has the more dramatic sound bytes, and we are used to cheering for the underdog.
However, it’s also important not to throw out the baby with the bathwater. We can’t give a non-biological party automatic rights. We can’t give a non-biological party undeserved rights. If we do, then we risk being unfair to the biological parent, and even to the child.
We also risk introducing a new set of problems: weakening the rights of biological and adoptive parents, encouraging those without legal rights to fight costly court battles, and discouraging legal parents from forming relationships that might threaten their rights.
Annie Tobey is a freelance writer and editor living in Richmond, Virginia. For six years, she’s shared her philosophical passions through V Magazine for Women, combining love for life, the diversity of women, and a celebration of success in all its forms, on the printed page and online, now at www.MyVMagazine.com. She also shares her joie de vivre as a travel writer at www.ActiveWomanTraveler.com. She welcomes freelance opportunities for writing and editing, helping businesses present a polished written message that builds a quality brand. Contact her at email@example.com.
Staff Reports TOPEKA, Kan. — The Kansas Supreme Court on Friday ruled that when same-sex couples have children together, both parents can be fully recognized as co-parents under Kansas state law. In its decision, the court said that Kansas parentage laws apply equally to women and non-biological parents, and that courts must consider the reality of who [...]February 25, 2013
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