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Nevada Supreme Court Answers Questions of First Impression in Lesbian Custody Dispute Involving Donor Insemination and Co-Parenting Agreement

Posted on: October 8th, 2013 by Art Leonard No Comments

The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart.   Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.

Justice Nancy M. Saitta wrote the opinion in St. Mary v. Damon, settling several questions of first impression under Nevada law, and giving heavy weight to California decisions that interpret similarly-worded statutes.

Sha’Kayla St. Mary and Veronica Lynn Damon moved in together about a year after their relationship began, and decided to have a child together.  According to St. Mary, they decided to have Damon contribute the egg for in vitro fertilization with sperm through an anonymous donor, the resulting ovum to be implanted in St. Mary, in order that both of the women would have parental status, St. Mary as the birth mother and Damon as the genetic mother.   After the procedure was performed they both signed a co-parenting agreement, under which they agreed that if their relationship ended, they would “each work to ensure that the other maintained a close relationship with the child, sharing the duties of raising the child, and make a ‘good faith effort to jointly make all major decisions” affecting the child.

St. Mary gave birth to the child in June 2008, and was listed on the birth certificate as the child’s only parent, but the child was given a hyphenated last name to reflect both mothers.  About one year after the child’s birth, the women ended their relationship, St. Mary moved out of the home, and they disagreed about how to share their time with the child.  However, St. Mary cooperated with Damon by signing an affidavit declaring that Damon was the biological mother of the child, which Damon used to get a court order to have the child’s birth certificate amended to list her as a mother.  The court declared that Damon was “the biological and legal mother” of the child, and ordered that the birth certificate be amended to add Damon’s name as a mother.

Then St. Mary filed the lawsuit seeking to establish custody, visitation, and child support, but Damon responded that as the biological mother she was entitled to sole custody, attaching the 2009 court order.

The trial judge treated St. Mary as a mere surrogate.  Damon had filed a motion to limit the court’s evidentiary hearing to the issue of whether St. Mary would have visitation, arguing that Damon’s sole parental status had been established by the court’s order.  The trial judge agreed with Damon, excluding St. Mary’s custody claim from the hearing, and focused solely on the visitation issue.  At the conclusion of the hearing, the trial court found that St. Mary should have “third party visitation,” finding that she “has no biological or legal rights whatsoever under Nevada law.”  Further, the trial judge found the co-parenting agreement unenforceable, concluding that it fell outside the scope of enforceable surrogacy agreements, which under Nevada law could be made only by a married couple with a surrogate.

St. Mary appealed from the denial of her parental rights, and the Nevada Supreme Court unanimously reversed, finding that the trial judge was mistaken about Nevada law.

Following the lead of the California courts, the Nevada Supreme Court held that a child can have two legal mothers, and that a co-parenting agreement such as the one made in this case could be enforceable.  Most significantly, the court found that under Nevada statutes St. Mary could be deemed a parent to the child because she was its birth mother under circumstances where, as she claimed, the women had agreed that both were intended to be parents of the child.  The trial judge had misconstrued the effect of Damon’s prior legal action to establish her parental rights, said the court.  Although the prior court order had established her status as a legal mother of the child, it had not ordered that St. Mary’s name be removed from the amended birth certificate.

That is, finding that the child had two legal mothers was not inconsistent with the prior decision.

The facts are contested however.  Damon claims that St. Mary was intended to be a surrogate and not an intended parent, and that the “co-parenting agreement” was actually an invalid surrogacy contract that the women had signed because the clinic that performed the procedure required a written agreement.  When the case goes back to the trial court, there will have to be an evidentiary hearing to determine whether St. Mary or Damon is more credible, but Justice Saitta’s narration of the facts implicitly suggests that St. Mary’s account of what happened makes more sense.

Nevada is now a domestic partnership state, but that development post-dates the relevant facts in this case, as the child was conceived in 2007 and born in 2008, and Damon’s initial action seeking a declaration of her status took place in 2009, which is also when St. Mary filed her complaint in this case.  Had the women been registered Nevada domestic partners at the relevant time, the law would have recognized both as parents of the child.  But many lesbian couples have children without undertaking to register as partners or marry, so the court’s ruling remains important, and continues a trend in applying the up-to-date version of the Uniform Parentage Act as construed in California and followed in New Mexico to encompass the legal situation faced by non-traditional families.

Supreme Court: Clearing Up the Cert Backlog After the DOMA and Prop 8 Decisions

Posted on: June 27th, 2013 by Art Leonard No Comments

Yesterday the Supreme Court decided U.S. v. Windsor, affirming the 2nd Circuit and holding that Section 3 of the Defense of Marriage Act violates the 5th Amendment, and Hollingsworth v. Perry, holding that the initiative proponents of Proposition 8, who had been allowed to intervene in its defense at trial, lacked standing to appeal the district court’s ruling.   The decisions will go into effect after the Court issues its mandate, which is normally 25 days after decision day, in order to give the losing party a shot at filing a motion for rehearing. 

One could argue that there is no “losing party” in Windsor, since neither Edie Windsor nor the U.S. Government has any beef with the Court’s ruling.  The Bipartisan Legal Advisory Group of the House of Representatives (BLAG) may have a beef with it, but I think any motion for rehearing that they might file would be quickly dismissed, inasmuch as Justice Kennedy’s opinion does not rule on whether they had standing to participate in the case as a full party, and none of the dissenters argued that they have standing, either.  In Hollingsworth, the mandate would send the case back to the 9th Circuit, which would then lift its stay of Judge Vaughn Walker’s Order, which enjoins California officials from enforcing Proposition 8.  At that point, same-sex marriages would resume in California.  Governor Brown has already authorized a memorandum that was sent out to County Clerks instructing them the state believes that Walker’s Order is binding throughout the state, and that they are to begin issuing licenses to same-sex couples as soon as the stay is lifted.

Today, June 27, the Supreme Court addressed the backlog of cert petitions that have piled up in the wake of the same-sex marriage cases, so here is the rundown from the Court’s announcements this morning:

1 – The Windsor case.  The court had three cert petitions in the Windsor case, one filed by Robbie Kaplan and the ACLU on behalf of Edith Windsor, the others filed by the U.S. Goverment and BLAG.  The Court granted the government’s petition, which is why the case is called U.S. v. Windsor in the Supreme Court.  This morning, the Court denied certiorari in the petitions filed by Windsor, No. 12-63, and BLAG, No. 12-785.  (BLAG didn’t file its petition until after the 2nd Circuit had ruled, and in fact the Court granted the government’s petition before BLAG filed its petition.)

2 – The 1st Circuit Gill/Massachusetts case.  The 1st Circuit Court of Appeals issued a decision holding Section 3 of DOMA unconstitutional under the 5th Amendment, but rejecting the state of Massachusetts’ argument that DOMA violated the 10th Amendment by overriding the prerogatives of the state.  BLAG filed a petition for certiorari from the ruling against the private plaintiffs, represented by Gay & Lesbian Advocates and Defenders, and that petition was denied this morning in No. 12-13.  The government also filed a petition for certiorari, in the name of the U.S. Department of Health & Human Services, which was the lead defendant in the case, and that petition was denied today, No. 12-15.  The state of Massachusetts also filed a petition, seeking to vindicate its federalism claim.  The Court denied that petition as well, No. 12-97. 

Justice Kennedy’s opinion in Windsor made something out of the federalism argument, although I think Chief Justice Roberts was strategically misrepresenting the majority opinion when he wrote in dissent that the main theme of the majority opinion was federalism.  It was not.  The ruling was premised on the 5th Amendment’s Due Process and Equal Protection requirements, although Kennedy did discuss the federalism aspects of the case as one of the factors that required the Court to give “careful consideration” to this constitutional challenge.  BLAG did not file a petition in this case. 

The Court noted that Justice Kagan did not participate in the consideration or decision on these petitions on the 1st Circuit case, presumably because as Solicitor General she had participated in the Justice Department’s internal discussions about the District Court proceedings and the appeal to the 1st Circuit.   It is likely that the reason the Court decided to take the Windsor case instead of this case was so that a full bench could participate, as both cases presented the identical issues under the 5th Amendment.  The original district court complaint in Windsor was filed after Justice Kagan took the bench, so she was not involved in the Justice Department’s conduct of the litigation and did not feel any need to recuse herself.

3 – The Golinski case.  Lambda Legal represents Karen Golinski, an employee of the 9th Circuit Court of Appeals who was denied health insurance coverage for her same-sex spouse after they married in California in 2008 prior to the passage of Proposition 8.  Golinski won a ruling from a federal district judge within the 9th Circuit that Section 3 is unconstitutional, and the government had filed a petition for certiorari, seeking to bypass the 9th Circuit and bring the case directly to the Supreme Court.  This morning, the Court denied the petition, No. 12-16.  In light of the ruling in Windsor, federal court employees legally married to their same-sex partners in California will clearly be eligible to participate in the group insurance plan for the federal courts on the same-basis as employees married to different-sex couples, since California recognizes the marriages that were performed in 2008 prior to the enactment of Prop 8, by virtue of a California Supreme Court decision issued in 2009 in response to a challenge to the passage of Prop 8.  Still to be sorted out, but likely, is that federal court employees who work in states that don’t recognize their same-sex marriages will be similarly-entitled, but stay tuned on that issue. 

5 – The Pedersen case.  After having won their DOMA case in Massachusetts, GLAD decided to venture into the New England portion of the 2nd Circuit by filing a similar case in Connecticut, where they won a ruling from the district court and then petitioned the Supreme Court to take the case directly, bypassing the 2nd Circuit.  This seemed to make sense, as the 2nd Circuit was focused on the Windsor case from New York, and it seemed likely that all the pending DOMA cases were in a position to contend for Supreme Court review.  The government also obliged by filing a petition shortly after GLAD had filed.  This morning, the Court dismissed the Pedersen (GLAD) petition, No. 12-231, and the government’s petition, which was filed on behalf of the Office of Personnel Management, No. 12-302.

6 – The Arizona Domestic Partnership Benefits Case.  The Supreme Court also received a petition last summer from Arizona Governor Jan Brewer, asking the Court to overturn a preliminary injunction that had been issued by a federal judge in Arizona requiring the state to continue providing health benefits to same-sex domestic partners of Arizona state employees while the court considered the merits of Lambda Legal’s claim that the government’s revocation of those benefits violated the 14th Amendment.  The 9th Circuit had affirmed the district court’s grant of preliminary injunctive relief, agreeing with the district judge that plaintiffs had adequately shown a likelihood of success on the merits and irreparable injury if they were to lose their insurance coverage while the case was being litigated.  This morning, the Court denied the petition in Brewer v. Diaz, No. 12-23.  I think it is most likely this one was denied because the Court would rarely get involved in an interlocutory appeal of a pre-trial order of this type unless it was overwhelmingly eager to get into the substantive legal issues in the case, and yesterday’s decision in Hollingsworth v. Perry, dismissing the Prop 8 appeal on standing grounds, seems to signal that the Court is determined to put off for now the question of how to analyze sexual orientation equal protection claims under the 14th Amendment. 

7 – The Nevada marriage case.   This is the strangest and most “long-shot” petition of those denied this morning.  In Nevada, Lambda Legal is suing for a ruling that the state’s anti-gay marriage amendment is unconstitutional and gay people should be entitled to marry.  The district court allowed the Coalition for the Protection of Marriage, which was behind the marriage amendment, to intervene as co-defendants with the state.  The district court ruled against the plaintiffs, finding that there is no right under the 14th Amendment for same-sex couples to marry (explicitly disagreeing with Judge Walker’s decision in the Prop 8 case), and the case would next logically go to the 9th Circuit.  But the Coalition filed a cert petition, asking the Supreme Court to take the case directly and affirm the district court.   (Now, this sounds odd in light of the arguments about the U.S. government’s standing in the Windsor case to appeal a ruling with which it agreed, doesn’t it?)  Yesterday’s ruling in Hollingsworth seems to dispose of this one quite easily on standing grounds.  Clearly, the Coalition does not have standing to bring this case to the Supreme Court under the majority opinion’s reasoning in Hollingsworth, especially since the state of Nevada is defending its marriage amendment in court, unlike the state of California in the Prop 8 case, and the state will presumably fight to defend the district court’s ruling in the 9th Circuit.  Anyway, the petition in Coalition v. Sevcik was dismissed this morning, No. 12-689.  The legislature in Nevada has given initial approval to a ballot measure that would repeal the anti-gay marriage amendment and replace it with a marriage amendment that institutes marriage equality in the state.  The proposed amendment will need to be approved again after a new legislature has been elected before it can be placed on the ballot.  

So that clears the decks at the Supreme Court on same-sex couple legal recognition cases for now, unless a motion for rehearing is filed in Windsor or Perry.  The Court rarely grants motions for rehearing, and the likelihood that such a motion would be granted in either of these cases is slight, so a mandate to put the opinions into effect should be issued by the fourth week in July (which has 4-1/2 weeks).