Courting Change

Queer Parents, Judges, and the Transformation of American Family Law

Kimberly D. Richman

• Publisher: NYU Press
• Year: 2008
• ISBN:
  9780814776414
• Topic: Droit
• Subtopic: Droit de la famille

Winner of the 2010 Pacific Sociological Association Distinguished Contribution to Scholarship Award

A lesbian couple rears a child together and, after the biological mother dies, the surviving partner loses custody to the child’s estranged biological father. Four days later, in a different court, judges rule on the side of the partner, because they feel the child relied on the woman as a “psychological parent.” What accounts for this inconsistency regarding gay and lesbian adoption and custody cases, and why has family law failed to address them in a comprehensive manner?

In Courting Change, Kimberly D. Richman zeros in on the nebulous realm of family law, one of the most indeterminate and discretionary areas of American law. She focuses on judicial decisions—both the outcomes and the rationales—and what they say about family, rights, sexual orientation, and who qualifies as a parent. Richman challenges prevailing notions that gay and lesbian parents and families are hurt by laws’ indeterminacy, arguing that, because family law is so loosely defined, it allows for the flexibility needed to respond to—and even facilitate — changes in how we conceive of family, parenting, and the role of sexual orientation in family law.

Drawing on every recorded judicial decision in gay and lesbian adoption and custody cases over the last fifty years, and on interviews with parents, lawyers, and judges, Richman demonstrates how parental and sexual identities are formed and interpreted in law, and how gay and lesbian parents can harness indeterminacy to transform family law.

1

A Double-Edged Sword?
Indeterminacy and Family Law

The strength and genius of common law lies in its ability to adapt to the changing needs of the society it governs.

—In re Parentage of A.B.¹

In 1999, an Indiana social worker petitioned to adopt three children, siblings, all of whom had severe disabilities and had been in foster care for most of their lives. The adoption was near completion when the children’s foster parents petitioned to stop the adoption of one of the children. They called their local pastor, rallied the community, and put pressure on the adoption board to disallow the adoption of the little girl by the social worker—and they were successful. The two boys were adopted by the social worker and were cared for by him according to their special needs, while their sister remained in the home of her foster parents. A year later, law enforcement made a terrible discovery: the girl, whom the foster parents had insisted on keeping, had been molested and sexually abused repeatedly by her foster father. Now her foster father is in prison, and the little girl is left in a broken foster home while her brothers miss her and ask their adoptive father why she couldn’t come and live with them. He doesn’t have the heart to tell them, it’s because he is gay.

What is it that makes an adoption board, community, or judge balk at the thought of allowing a gay man to adopt a little girl, instead leaving her in foster care and separating her from her brothers? How is it that in Florida, where a movement auspiciously called “Save the Children” made it illegal for gay men and lesbians to adopt children, a father who was convicted for the murder of his first wife can gain sole custody of the children from his second marriage, on the grounds that their mother is a lesbian? Although these questions yield no easy or simple answer, they highlight the complexity and contradictions of an area of gay rights litigation overlooked by many in the early years of the gay rights movement: family law.

Consider the striking irony that the tragic Indiana case described above occurred at the close of a decade often dubbed the “gayby boom” by family law and gay rights communities, for its explosion of publicly visible gay- and lesbian-headed families—made possible by a combination of reproductive technology, growing tolerance, and legal innovation. While countries around the world reconsider the family form and begin to formally recognize same-sex relationships, case law in the United States presents a very eclectic picture. On the one hand, all but two states’ courts have struck down laws prohibiting gay men and lesbians from adopting, and progressively more courts have begun to recognize the validity of same-sex second-parent or stepparent adoptions in twenty-five states. Yet in 2002, the same year that a Pennsylvania Court of Appeals unanimously affirmed the validity of such adoptions for gay and lesbian couples, the Supreme Court of Alabama denied custody to a lesbian mother, calling her sexuality “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature.”² More recently, the U.S. Supreme Court, on the heels of its landmark 2003 decision striking down sodomy laws in Lawrence v Texas, refused to hear the latest challenge to Florida’s restrictive adoption law, effectively sanctioning its ban on gay adoptions.³ What is the parent, the scholar, or the average citizen to make of this seemingly incoherent literature of law?

In this book, I argue that this incoherency is neither accidental nor inexplicable but is in fact a necessary feature—within certain bounds—of an area of law whose continued relevance and function rely on its ability to adapt to changes in the social organization of family and sexuality. This is certainly not to say that there is anything necessary, or even acceptable, about a judge feeling free to call a lesbian mother “detestable” and blocking her from seeing her child—or about an adoption board or judge having the power to block an adoption desired by both parent and child solely on the basis of a person’s sexual orientation. Rather, I argue, in an era when it is increasingly apparent that laws regarding family were not drawn up with same-sex couples or gay- and lesbian-headed families in mind, a degree of flexibility is in fact a virtue that allows parents, attorneys, and eventually judges to construct more inclusive and contextually sensitive frameworks and arguments. At the same time, because unbounded discretion can easily become bias, it is important to acknowledge and understand the double-edged sword that is judicial indeterminacy.

Family law, among legal professionals and those familiar with the field, is notorious as one of the most indeterminate and discretionary areas of American law. While criminal sentencing, for instance, has become increasingly fixed in statutory guidelines (and therefore largely taken out of the hands of judges), child custody decision-making remains governed by one—and only one—overarching rule: the decision must be in “the best interest of the child.” This standard is seen as less discriminatory than past gender-specific guidelines, and may seem like a common-sense rule of thumb to most parents and others, but start asking different people to define exactly what the “best interest of the child” is in any given case, and one begins to realize the problem: no two people have the same definition. As one attorney specializing in this area noted in an interview, “These kinds of decisions really strike at the core of people’s opinions about how to raise their children. And there is really no consensus in this country about the best way to raise children.… they’re Solomonic decisions in a lot of ways.”⁴

One example illustrates this point particularly well: On October 20, 1995, judges in the Michigan case of McGuffin v Overton denied custody to Carol Porter, the surviving co-parent of two boys and the partner of their biological mother, Leigh McGuffin, who died that January. Both boys carried Porter’s last name, and McGuffin had stipulated in her will and power of attorney that she wished Porter to have custody of the children. Instead, however, the court opted to give custody to the children’s estranged biological father, who had never played a role in their life. The rationale was that Porter was not actually their parent, because she was not a blood relation. Four days later, however, an almost identical fact situation presented itself in a different court in the case of Matter of Guardianship of Astonn H., and the judge in that case came to the exact opposite finding: that despite the lack of blood relation, the child had come to rely on the woman as a “psychological parent,” and therefore she should be awarded custody.⁵ Clearly, these judges differed in their opinion of what was in these children’s best interest after their mothers’ deaths, and of what role biology should play in that determination. In this sense, the legal standard for child custody is both an index of variation in Americans’ attitudes about family, parenthood, and child welfare, and it is a marker of the oft-critiqued and well-documented indeterminacy of law.

In the field of law and society, the indeterminacy (or open-endedness) of law is a theme of longstanding significance.⁶ As early as the 1920s and ’30s, progressive legal scholars and judges, such as Jerome Frank and Karl Llewellyn, noted that any given case could just as likely be decided according to “what the judge had for breakfast” as according to what the facts were or what the prior legal precedent said. This may be a slight exaggeration, but its main thesis was duly noted and revived later by Critical Legal Studies (CLS) scholars toward the end of the twentieth century: the law is not as predictable and rational as it may seem. Moreover, social mores and institutions can and do have an influence on law, and vice versa. Because historically most judges have come from a relatively affluent straight white male demographic, their standpoint as citizens in a position of privilege necessarily has affected their ability (or desire) to mete justice in a way that is equitable and sensitive to the needs of marginalized populations.⁷ While some people—particularly minorities who have struggled for legal recognition of their civil rights over the course of the twentieth century—may not find this surprising, for many judges, legal professionals, and even members of the mainstream public, such a claim is near heresy. If we cannot depend on the law to be neutral, predictable, and rational, how can anyone have confidence in the system and support it?

The Legal Realists of the 1920s and ’30s launched the empirical critique of the indeterminacy of law, contrasting the early-twentieth-century Supreme Court decisions of Lochner v New York and Muller v Oregon as cases in point.⁸ Whereas Lochner found in 1905 that workers’ hours could not legally be restricted in the name of the workers’ well-being and rights (or for any other reasons) because it violated their freedom of contract, Muller—decided three years later—came to the exact opposite determination. The difference? In Muller, the workers in question were women. The implication for critics was twofold: first, that the courts were not, as they claimed, bound by stare decisis (the concept of following past precedents) to come to the same decision when faced with the same set of legal principles and similar facts; and second, that this discretion would presumably follow the contours of the judges’ biases and social conceptions of race, class, and gender (and later, sexual orientation). In the cases of Muller and Lochner, this meant adopting a pater nalistic rationale for “protecting” women’s reproductive function by abridging their purported freedom of contract—which would otherwise rationalize a limitless work day.

Yet it is not without a touch of irony that in this famous example of indeterminacy, the sexist bias of the judges’ rationale ultimately resulted in a gain for workers’ rights (at least for some workers). This twist underscores several important points about the indeterminacy of law. First, rather than focusing only on case outcomes and the inability to predict them, it is important to look at the entire judicial narrative—that is, not just the final decision of each case but also the reasoning by which the judges arrive there. These rationales, particularly when recorded for posterity in a precedent-setting appellate case, are just as important and even more revealing of how judges’ discretion operates. One would not necessarily read gender bias into the Muller decision’s outcome—after all, saving women from a twelve- or sixteen-hour work day would by and large be considered a good result—until one realizes that this decision was premised on sexist and paternalistic beliefs about women’s fragility and primary function as child bearers. Thus, it is safe to assume that if the ultimate findings of the judges belie any expectation of predictability, so do the paths of reasoning by which they arrive at these results.

Second, the indeterminacy thesis, as originally conceived and as later interpreted, is both an empirical and, implicitly, a normative critique of law and what sociologist Max Weber called “formal rationality,” that is, consistency and immunity to social and political influences. Not only is law indeterminate, but this indeterminacy is necessarily undesirable, since it affords room for bias in judicial decision-making. In fact, the troubling implications of the indeterminacy thesis are part and parcel of its resonance as a critique. Indeed, scores of studies, ranging from criminal law to civil litigation to family law, have found that indeterminate legal principles and judicial discretion can and have resulted in bias based on race, class, or gender. A study by Landsman and Rakos found that judges in civil cases were just as likely as jurors to allow biasing materials, which were ruled inadmissible after they were presented, to affect their ultimate decisions in differential ways.⁹ Ards, Darity, and Myers found that alimony and child-support awards in the District of Columbia varied greatly according to race, even when other economic factors were held constant.¹⁰ Beginning in the 1980s, Critical Legal scholars carried the empirical critique to the extreme, arguing that every instance of judicial decision-making, and every rule, was inherently unpredictable—a so-called radical indeterminacy that recognizes the constancy of no legal principle. Soon after, postmodernists extended the normative critique as well, but they turned it on its head to make the argument that there are, and should be, no “right answers” in any case—since any concept of “rightness” was inherently subjective.

These critiques suggest the importance of the final point raised by analysis of the Muller and Lochner cases, which is crucial to the application of the indeterminacy thesis to gay, lesbian, bisexual, and transgender (LGBT) parents’ custody and adoption: legal indeterminacy, as both an empirical and a normative critique, is best thought of not as a black-and-white dichotomous evaluation but in shades of gray. The fact that the Muller case broke with precedent and relied on sexist assumptions but ultimately had an arguably positive humanitarian result in its support for reasonable work hours suggests as much. Orienting to indeterminacy as absolute, or as all good or bad, ultimately misses the mark and obscures the utility of an “openness” in law that can facilitate positive social change, even if it also accommodates bias in some situations. After all, had Muller applied the same logic and come to the same conclusion as the earlier Lochner case, the result would have been that the women who were subject to the decision would have been forced to work over ten hours a day. That Muller is remembered as a sexist decision is ironic in this sense, but also useful in that it teaches us to look below the surface and beyond any particular result, whether positive or negative, to expose ideological currents that reify marginalized statuses and may be applied to more harmful ends in a different situation—if this indeterminacy is not effectively “managed” by those who aim to protect the marginalized. At the same time, certain overarching principles are necessary to keep us from devolving into a legal nihilism that ultimately protects no one and renders moot the law’s utility as a tool of social change.

In this sense, the critique of indeterminacy, as traditionally conceived, can usefully be looked at through the lens of feminist jurisprudence. Feminist legal scholars such as Frances Olsen and Katherine Bartlett argue that the law is overly concerned with predictability and “objectivity”—in the form of supposedly value-free precedent-based decision-making—ultimately a masculine interpretation of justice.¹¹ A feminist interpretation of law would be more contextually sensitive, serving an informal and open, rather than formal and closed, notion of justice—but justice nonetheless. As Bartlett explains,

Feminist practical reasoning challenges the legitimacy of the norms of those who claim to speak, through rules, for the community.… [It] differs from other forms of [legal] reasoning… in the strength of its commitment to the notion that there is not one, but many overlapping communities to which one might look for “reason.”¹²

Arguing that different communities might conceptualize justice and reason in different ways, and that this diversity of interpretation is a good thing, is another way of saying that judicial narratives may differ in their results and their rationales—and that that is okay. Thus, a feminist approach to legal indeterminacy might be to consider it with cautious optimism—wary of the potential for abuse by biased judges but strategically and ideologically welcoming of the space afforded by this indeterminacy to respond to diversity and change in meaningful ways. This, of course, requires that litigants and attorneys actively “work” the indeterminacy of law in ways that will serve the progressive purpose of expanding rather than contracting possibilities for new (or newly recognized) communities and social institutions.

Both the gendered nature and the dynamic social structure of family make these points especially à propos to analyses of custody and adoption law. A particularly salient manifestation of the indeterminate nature of law is the “best interest of the child” standard—a standard invoked almost universally in family law. While the phrasing of this legal standard is fixed, its meaning and interpretation are anything but static. Family law scholar Stephen Parker discusses the cultural and temporal relativity of the best-interest standard as an ideal illustration of law’s indeterminacy. He gives concrete examples of differing interpretations of the best-interest standard in custody determinations, concluding that “[t]he difference between the two decision-makers is in their assumptions as to what are normal conditions for the operation of the best interest prin-ciple.”¹³ Although it is true that some jurisdictions have specified guidelines for determining the best interest of the child, which are discussed in more detail in chapter 2, these standards are certainly not uniform. Moreover, many of the criteria contained in the guidelines are themselves vague and subject to interpretation. Kathryn Mercer notes that “[t]he history of child custody law has been seen as a struggle between rules and discreti...