Paper mommies and friendly lawsuits
Gay and lesbian parents must create a legal patchwork to protect their children. Luckily, studies say, the kids are all right.
One mother takes the children to day care. The other picks them up, gives them a snack, and starts dinner. Toy dinosaurs crowd the living room table. The younger child draws with sidewalk chalk on the front porch in the early evening, looking up at his parents with big brown eyes. The older one rides a new bike with training wheels. He beams with a mischievous smile, his thick hair sticking out from his helmet. As the sun goes down, the moms push the two boys on the swings of a play set, then walk behind them down the sidewalk as the boys scan the sidewalk for bugs to examine. When it's time for bed, both moms read bedtime stories and tuck the boys in.
That's the lifestyle Cathy Surles and Kelly Rimer lead. Their world centers around their sons, ages 2 and 3, their two dogs and their full-time jobs. Rimer is an environmental researcher and has worked for the same employer for 10 years. Surles is an attorney. Their family is as stable, loving and happy as any you will find. But some people think their family should be illegal.
The National Coalition for the Protection of Children and Families, a right-wing religious group that opposes homosexuality, opened a regional office in Charlotte earlier this year. "Many Americans are understandably outraged by what they believe is judicial tyranny as well as moral anarchy," wrote Rick Schatz, the group's national head, in a statement decrying same-sex marriages and advocating an amendment to the federal Constitution to define "the sanctity of marriage" as a union of one man and one woman. Last month, North Carolina's Republican Party added to their platform the declaration that they "oppose actions, such as 'marriage' or the adoption of children by same-sex couples, which attempt to legitimize and normalize homosexual relationships." The legislature is considering an amendment to the North Carolina constitution that would define marriage as a union between "one man and one woman" and ban same-sex civil unions and domestic partnership. House Bill 1606 and Senate Bill 1057 have been in committee since May and have not been voted on yet.
But the notion that same-sex parents are tearing apart the fabric of society flies in the face of sociological evidence. Studies show no developmental differences between kids raised by same-sex couples and those raised by straight parents. They are no more likely to identify as gay themselves than their counterparts, either. A long list of child welfare groups support the legal recognition of same-sex parenting. The overwhelming conclusion of pediatricians, psychologists, psychiatrists and social workers is that same-sex parents are just as capable of raising happy, healthy kids as straight parents are; to the extent that the children are harmed, it is only by the homophobia and legal discrimination their parents face. "Children deserve to know that their relationships with both of their parents are stable and legally recognized," says the American Academy of Pediatrics in an official policy statement. That recognition would establish the rights of child support and health benefits and lead to a more "positive outcome" in the event that the couple separates or one parent dies.
In reality, families headed by same-sex couples are prospering, becoming more visible and integrating into mainstream society. According to a study of 2000 Census data released last month by the Urban Institute, gay and lesbian couples live in 97 percent of U.S. counties, and one out of every three lesbian couples and one out of five gay couples are raising children. The number of gay and lesbian couples in North Carolina rose 720 percent between 1990 and 2000. As of 2000, there were 16,198 gay and lesbian couples in the state, and 31 percent of them were raising children. The wave of same-sex couples conceiving and adopting children together began in the mid- to late-1980s. Today, those kids are school-age, and society is facing its ambivalence toward gays and lesbians on new territory: in the classroom, on the soccer field and at the PTA meeting.
In order to protect their family, Rimer and Surles, like thousands of other gay parents, have to navigate a Byzantine legal system. They can't get the automatic legal protections that come with marriage, so the couple has spent thousands of dollars on legal measures to provide security and basic rights for their children and to make sure they aren't taken away from the only home they've ever known. "I don't care what anybody thinks of me," Rimer says. But grappling with the complexity of securing health care benefits and financial security for the boys has brought home to them the importance of having their relationship legally validated, from a purely pragmatic point of view. In trying to legislate moral disapproval over homosexual relationships, so-called defenders of children and families are only hurting the kids.
Like many parents, Rimer and Surles sometimes run the worst case scenario in their minds: What if one of them were hit by a bus tomorrow? What would happen to the children?
Rimer is the "paper mommy"--the legal parent listed on the adoption papers. Despite her equal role in caring and providing for the boys, North Carolina law says Surles has no legal relationship to them or to Rimer. So if Rimer were in intensive care, a hospital could bar Surles from visitation; worse yet, if the boys were injured, she could be denied the right to see them, make medical decisions, or bring them home.
To prevent that kind of crisis, Rimer and Surles have created every legal document their lawyer could come up with: wills designating one another as legal guardians of the boys if one of them dies first, financial and health care powers of attorney for each other in case one of them becomes incapacitated, and a power of attorney from Rimer giving Surles the right to make medical and educational decisions for the children.
The couple decided on a hyphenated name, "for their protection and ours," Rimer says, "just so there's no question, picking them up from the doctor or signing them up for soccer." But all of these rights are contestable. Without establishing Surles as a legal parent, through marriage or second-parent adoption, there is no guarantee that a court would recognize her as the boys' mother. While Rimer's parents basically accept Surles as co-mother to their grandchildren, they still have the power to contest her guardianship. "They could do that even with a will," Rimer says. "It does happen," Surles says quietly.
Rimer and Surles are my neighbors. Their boys walk--or ride, or run, or wobble--past our front porch every day. I often forget there is anything unusual about their family, because in this neighborhood, there is nothing unusual about it.
But given the climate of the state legislature and the national political scene, local gay and lesbian parents are feeling insecure. Even those who are out in most or all aspects of their lives were reluctant to go on the record for this story to discuss their family's experiences. (Rimer and Surles asked that I not use their sons' names.)
When I drop by on a Saturday afternoon, the women are baking cookies while the boys play in the living room and watch Inspector Gadget. Rimer says their house is decorated in "early childhood," with stain-resistant rugs and as few sharp edges as possible. The boys are fond of frozen peas, fizzy water and a plastic toy lawn mower they take turns pushing across the carpet. Two family dogs, wearing bandanas, patrol the living room.
"I angsted about wanting to be a mom forever," Rimer says. Ten years ago, she went to foster parenting classes but decided the uncertainty of the foster care system didn't work for her. At one point, she and Surles considered moving to Denver, where Rimer's sister lives. "I just had an epiphany one day at work and just said to myself, instead of moving to be closer to my sister's kids, why don't we have our own kids? I came home that night and Cathy was like, OK."
Settling down in an environment where they feel supported was important to Surles and Rimer. In our cozy, idyllic neighborhood, there are few single or childless people, but gay families are a visible presence. All the kids play together on the play set and in the meadow. "It's huge to be in a community, in a family, where the people you spend time with recognize it and validate it," Surles says. Even her parents, who live in Virginia, visit frequently to dote on their grandchildren. "My family's always been really incredibly supportive. In fact they're always like, 'When are you going to get married?'"
Both women say that if it weren't for the kids, that thought wouldn't have entered their minds. "I've never really had a desire to get married," says Surles. "But to me the issue now is really a matter of equality, and if you want to get married you should be able to and you should have the rights."
Rimer agrees. "I could give a hoot about what you call it," she says. "If it would be easier to get the stuff through by calling it domestic partnership, call it whatever you want."
She added that she is skeptical, however, that a relationship by any other name would offer the same legal protections.
An irony of the gay baby boom is that gay and lesbian parents tend to be drawn to places that may not be especially accepting of gays. The Old North State ranks 18th out of the 50 states for the proportion of families headed by same-sex couples. Yet, Urban Institute researcher Gary Gates says, "It's a state with some of the least supportive gay laws." North Carolina ranks 47th in legal protections. "That reflects a national trend," he says. "Gay and lesbian couples are most likely to have children in the South, and the South has the least amount of legal protections for kids being raised by same-sex couples." Why move to the lion's den? "I think the pattern is that same-sex couples are more likely to be raising children where other people are raising children," he says.
Gay and lesbian parents are looking for the same things other parents are looking for: proximity to extended family, safe neighborhoods, affordable real estate, good schools, parks and so on. "Same-sex couples [with children] look more like the people around them than like other gay people," he says. Among metro areas in the state, Raleigh/Durham/Chapel Hill ranks second for the proportion of gay families, with Durham the overwhelming favorite of lesbian parents. "Asheville is by far the 'gayest' city in North Carolina," Gates says. Third place is Charlotte, followed by Greensboro and Wilmington.
If you're a gay parent in the Triangle, you've probably been to Sharon Thompson's law office in Durham. Thompson has been practicing family law for more than 25 years. She's one of the few attorneys in the state with particular expertise in gay and lesbian families, and she has clients from the mountains to the coast.
She says opponents of gay marriage are only hurting the children. "They don't want to give any recognition to same-sex relationships, they don't want to acknowledge their existence or support it in any way. The relationships are going to go on, the families are going to go on. The only thing that won't go on is that the children won't have two legal parents--two legal parents who have the legal obligation to support them. They won't have rights to inheritance, they won't have rights to benefits that either their employers provide or that the government provides, like Social Security, despite the fact that both parents are paying into Social Security."
Thompson counsels her clients from the beginning about which options will give them the most rights. Men have more difficulty than women, since they often rely on surrogate mothers. "That's the scariest way to do it," she says, because so many things can go wrong. Medical technology plays a significant role in the decision-making process: With paternity tests now 100 percent accurate, women who use anonymous sperm donations to conceive must consider the unlikely possibility that the donor may one day try to claim his rights as the biological father.
But technology cuts both ways. A lesbian couple Thompson represents both plan to be biological mothers of their child. The egg of one woman will be artificially inseminated and carried by her partner, who will give birth to the child. They're going to all this trouble, Thompson says, "in order to have both women's names on the birth certificate."
Neither Rimer nor Surles wanted to experience childbirth, so adoption was the obvious route. After talking to friends, they decided on international adoption. "We started down that path and worked with the same people our friends had worked with, and just started doing the paperwork." Things went smoothly. Soon, they were abroad, with Rimer signing papers and getting an exit visa for their son. Soon thereafter, they adopted another child through the same process. Adoption fees cost upward of $20,000 per child, plus travel expenses, plus a home-site visit to determine whether the parent is suitable ($1,500), and another $2,500 in lawyer's fees. Parents should then go through a process called "re-adoption" in order to get a certificate of citizenship for the children, which will make them eligible for a U.S. passport. That process costs thousands more. Rimer says she's heard horror stories about children who were deported for doing something illegal as teenagers because their parents hadn't gone through the re-adoption process.
But bringing their sons home was just the beginning. Thompson advises her clients to do everything possible to legally demonstrate their intention to provide equal care and responsibility for the children. The price is high. Each document costs $1,000 or more. "That's one of the real inequities of the situation," Thompson says. "All a heterosexual couple has to do is go down, pay $50 to get a marriage license, and all of a sudden, all these rights and laws apply." Marriage automatically establishes legal parentage to any child born during the marriage, parental consent to medical treatment of the kids, parental rights upon divorce, obligation to support the children, and pension and Social Security benefits to the spouse and the children in the event of one parent's death. "Even if they don't get married," Thompson says, "the biological father has all these rights, versus for a same-sex couple to do all the documenting of property, to do all the parenting documents, to do their wills."
More than 20 states offer second-parent adoption, but North Carolina isn't one of them. So Thompson devised a legal way of establishing mutual responsibility for the children: the "friendly lawsuit."
"That, unfortunately, is the non-legal parent suing the legal parent," she explains. In a custody dispute between a husband and wife, the final result is a consent order, signed by the judge, which works out the terms of shared custody and financial obligations. In a "friendly lawsuit," one member of a happily committed, cohabiting couple sues the other for custody, in order to establish a consent decree in which both partners can express their understanding of mutual responsibility toward the children. It's designed, Thompson says, so that, "should a dispute ever arise in the future, they will be treated as equal parents."
The women say they've heard opponents of same-sex marriage argue that marriage isn't necessary, because it's possible for couples to make wills and other such documents. They know from experience that those documents aren't enough. Besides, Rimer asks, "If we can do a lot of documents to get protections and people aren't bothered by that, why would they be bothered by making it so you don't have to do that?"
According to recent opinion polls, Americans are less bothered all the time. A Gallup poll taken last month shows that while Americans are still divided as to the root of homosexuality (nature or nurture), 54 percent agree that "homosexuality should be considered an acceptable alternative lifestyle." That's up from 46 percent last July, during the backlash period after the Supreme Court decision overturning the Texas sodomy law. With the exception of that drop, the number has risen steadily over the past decade.
When it comes to marriage, public acceptance also continues to rise. A Gallup poll last month showed the highest level of public support for gay marriage since 1996, when Gallup started asking the question. When asked first about civil unions and then about gay marriage, 49 percent approved of civil unions and 35 approved of marriage. When the order of the questions was reversed, however, 42 percent approved of marriage, and 56 percent approved of civil unions. Gallup concluded, "Many people see civil unions as an alternative to gay marriage, and once they can express their opposition to the latter they are more willing to embrace the 'civil unions' alternative."
Surles says the gay baby boom has changed the gay community as well as the rest of society. "I think if anything, it's made more of a division between gay families with kids and those without," she says. "It is true that those of us who are family oriented tend to hang out more with other gay people who have kids, the same way straight people do. If you have kids, you tend to hang out more with people who have kids."
It's certainly changed her life, she says. "When you have kids, you're out on a much more visible level than ever before and you connect with people you never thought you would have before, because they have kids. So you end up talking to people that you probably would not have ever had a connection with. Which is a good thing, in the sense that it does make our families more acceptable because we're not so different."
Thompson's work has changed as well. "In my era, 25 years ago, if you decided you that coming out was important to you, you had to accept that you weren't going to have children. When I started practicing, the whole big issue was more people coming out of marriages and acknowledging sexual orientation. The big issue back then was losing custody of your children because you were gay."
Children might prompt a cease-fire in the culture war. "Getting to know parents on the soccer field or in the PTA, that's really what's going to change people's attitudes. I think elected officials need to catch up with what's going on in the schoolyard."
This story has been corrected since it was published.