Lesbian Couple Fights Gay Couple over Child Custody—Who’s Right?

From the Miami New Times’ Mamas vs. Papas: Two gay couples fight over custody of child (7/16/09):

Two dads face off against two moms. It’s perhaps the most unique custody battle in recent Florida history and maybe the most radical verdict. Katherine Alicea and her eight-year partner, Ana Sobrino, decided to have a baby about a half-decade ago. Again and again, they tried using sperm from anonymous donors. But Katherine — a driven real estate agent then in her late 30s — couldn’t get pregnant.

Enter their close friend, Ray Janssen, a handsome, gay Air Force veteran.

After some casual negotiation, he donated and Katherine conceived. In August 2006, a sweet and burbling baby whom we’ll call Austin was born. Katherine put Ray’s name on the birth certificate because she wanted the child to know his dad’s identity.

That was a big mistake.

The baby was raised mostly by Katherine and Ana at their Miami Shores home, a block from Biscayne Bay. But Ray and his partner Craig also spent time with the boy. “[Ray] made it clear he wanted to be involved in the child’s life,” psychologist Sherrie Lewis-Thomas later wrote. He took Austin to baby music lessons. Sometimes the child would sleep over at his “da-da’s” Miami Beach apartment overlooking a canal.

Then, last fall, the mothers moved to California, and things got ugly.

Ray sued Katherine in November 2008. The case tells the story of two sets of gay parents — all of them loving and active in the child’s life — vying for custody. “Responsibility for the child should be awarded to the mother and father equally,” Ray demanded in the suit. “[I am] the natural father.”

After considering arguments from both sides, Miami-Dade Circuit Court Judge Leon Firtel on June 3 found Ray was nothing more than a sperm donor. Because there was no contract before birth, he had “no rights.”

Says Ray’s attorney, Gerald Kornreich: “[The ruling] is the most tragic of my career, and I will not rest until Ray is reunited with his son.”

Opposing council Hugo Acebo responds that Ray surrendered his role when he let the mothers become primary caregivers: “Ray has changed his mind about his parental role… Katherine and Ana feel like their family unit is being attacked.”

Whether it’s a gay custody battle or a heterosexual one, assuming parental fitness I lean heavily towards preserving and protecting children’s relationship with both parents. In this case that would favor father Ray Janssen over the lesbian couple. However, this case appears to be more complicated than that. Consider:

1) The lesbian couple apparently didn’t decide that Ray would have no rights or parenting time with his little boy–they decided to move from Florida to California. That’s certainly a big blow to Ray’s time and relationship with his son, but it’s not the same as stripping him of all role. Non-relocating parents generally get a raw deal, but they do usually get summers, vacations, etc., with their kids, which is significant.

2) We don’t know what the motivation for the move-away was. A few possibilities are:

a) The lesbian couple is moving for economic necessity

b) The lesbian couple is moving for a relatively trivial reason

c) The lesbian couple is moving for the purpose of cutting Ray out of his son’s life

Obviously I would oppose “c” but there hasn’t been any published evidence that this is what is happening. I would oppose “b” also–Ray’s relationship with his son is important, and is not something to be interfered with lightly. If the answer is “a”, however, the lesbian couple may be correct. And in this recession, it’s not difficult to imagine that this is the case.

From the articles published in this case, it appears that Ray is demanding that the women move without the child, who would remain with him in Florida. While this is often the right solution in conventional move-away cases, it seems like a fairly stiff demand here–the women were the child’s primary caregivers and functioned as his parents, and Ray’s custody rights were never spelled out.

On the other hand, the judge’s dismissal of Ray as nothing more than a sperm donor who had “no rights” is very unfair–Ray is the boy’s biological father and he spent a significant amount of time parenting him. The ruling is typical of the way the family law system dismisses fathers’ bonds with their children. But it’s also true that Ray should have made an agreement protecting his custody rights before he donated sperm to the couple.

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