Towards Constitutional Recognition of the Lesbian-Parented Family

When a lesbian created family dissolves because the mothers end their relationship, the non-legal parent often does not get visitation or custody of the children that she has nurtured and loved. This article addresses visitation, custody, and child-support issues that are raised when lesbian couples plan for and create a family together, and then subsequently separate. While arguments on behalf of non-legal parents have been raised based on statutory interpretation or equitable principles, very few have argued for non-legal parent visitation or custody based on constitutional interpretation. The article proposes three new constitutionally based models for custody, visitation, and child support disputes in dissolved lesbian-parented families. The theoretical framework of these models is rooted in Professor Martha Fineman’s concept of the “sexual family.” The focus on the sexual affiliation between the man and the woman in the “sexual family” has resulted in the deflection of social attention and consideration away from children. The focus should instead be on the parent-child relationship, making it easier for the courts and society to recognize the constitutional rights of the child and the non-legal lesbian parent. Under the first model, the Parental Status Model, the Supreme Court should recognize that the non-legal parent has a constitutional right to maintain a parental relationship with her child, and that this right should transform the non-legal parent into a legal parent. The second model, the Constitutional Interest Model, is less ambitious, but more realistic in its chances of Supreme Court acceptance. This model proposes that the non-legal lesbian parent’s constitutional rights and interests (along with the liberty interests of the child) should be balanced against the legal parent’s constitutional rights and interests. Finally, the Equal Protection Model comes from the Equal Protection Clause of the Fourteenth Amendment. The article compares the situation of children of lesbian parents with the situation of children of heterosexual, unmarried parents. The Supreme Court has established that statutory discrimination against children born out of wedlock is subject to intermediate scrutiny. This same level of scrutiny should apply to discrimination toward children of lesbian-parented families, thereby providing children of lesbian-parented families important protection in the dissolution context. There are various disadvantages of relying on legislation, instead of seeking constitutional rights, to protect lesbian parental rights. Recognition of constitutional rights, along with the models for weighing those rights, should be the goal of advocates before, or at least simultaneously with, the pursuit of legislation. While the recognition of these constitutional interests is an aspirational goal, it is not impossible. The Supreme Court’s plurality opinion in Troxel v. Granville opens doors by stating that there are other forms of family besides the traditional, heterosexual married family. Advocating for these constitutional rights and interests represents a step toward legally protected rights for the legal mother, the non-legal mother, and the children in a lesbian created family.