At­lanta-area at­tor­neys seek to fill gaps in same-sex fam­ily law

Two cases pend­ing in Ge­or­gia courts want non-bi­o­log­i­cal par­ent to have ac­cess to parental rights

GA Voice - - Georgia News - By DAL­LAS ANNE DUN­CAN ddun­can@the­

Two lov­ing par­ents, plus a child, equals a fam­ily — no mat­ter what the par­ents’ sexes are.

When two lov­ing het­ero­sex­ual par­ents sep­a­rate, mar­ried or not, both par­ents are able to pursue cus­tody. But for two lov­ing same-sex par­ents, the non-bi­o­log­i­cal par­ent does not have cus­to­dial rights pro­tected un­der Ge­or­gia law.

En­ter three at­tor­neys who want to ad­dress that dis­crep­ancy: Denise VanLan­duyt, Chris Hob­son and Sarah Hob­son.

“All these things are tak­ing place prior to mar­riage equality,” VanLan­duyt said. “Be­cause there was no eq­uity in the law, there was no abil­ity for the non-bi­o­log­i­cal par­ent to es­tab­lish parental rights. The non-bi­o­log­i­cal par­ent who has been held out to be a par­ent has no rights.”

Her client, Mari­bel Faubert-Rocha, said she’s not the only one go­ing through this type of case and won’t be the last.

“We de­cided to cre­ate a fam­ily to­gether and the laws should pro­tect both the par­ents and the child,” she said. “Bot­tom line, for me, this is just a mother try­ing to get rights to her son.”

We are fam­ily?

“It’s a sit­u­a­tion that we’re find­ing a lot of same-sex cou­ples in,” VanLan­duyt said. “These two women met in 2008, a long seven years be­fore that civil rights land­mark de­ci­sion comes down. No abil­ity to marry, but they want to have a fam­ily.”

VanLan­duyt’s client and her then-girlfriend went through in-vitro fer­til­iza­tion and had a son. Her client, Faubert-Rocha, is the non-bi­o­log­i­cal mother.

“Their re­la­tion­ship de­te­ri­o­rated and they sep­a­rated. As part of the sep­a­ra­tion, they en­tered into an agree­ment, a con­tract that we call a par­ent­ing agree­ment,” VanLan­duyt said. “It’s the same agree­ment that di­vorc­ing moms or dads en­ter into.”

Then the bi­o­log­i­cal mother chose to opt out of that con­tract, and re­fused to al­low Faubert-Rocha to see their son. VanLan­duyt filed an ac­tion for cus­tody, and the judge dis­missed it, say­ing there was no ac­tion they could take.

“I’m like, how is she sup­posed to do this then? If you’re rais­ing this child and the child knows her as the mom, how do we get her rec­og­nized as the other le­gal par­ent?” VanLan­duyt said.

VanLan­duyt’s case is based on the 14th Amend­ment. In her in­ter­pre­ta­tion, the gov­ern­ment can­not come in and tell a par­ent how to raise a child with­out cause.

“The ques­tion is, can you, by con­tract, share your parental rights, which are con­sti­tu­tion­ally pro­tected [for the bi­o­log­i­cal par­ent], with a per­son of your choos­ing? And then when you do that, do you have to con­tinue down that path?” VanLan­duyt said.

The Hob­sons’ client, Linda Hay­den-Lanier, is in a sim­i­lar sit­u­a­tion. She and her part­ner sep­a­rated, en­tered into a par­ent­ing sched­ule where both had time with their two chil­dren. Soon after the agree­ment was reached, Hay­den-Lanier’s part­ner no­ti­fied her — as per their agree­ment — that in 50 days, she planned to move across the coun­try with the chil­dren.

Chris said they im­me­di­ately filed a sec­ond-par­ent adop­tion case, a dif­fer­ent route than VanLan­duyt took. He said the judge wanted the bi­o­log­i­cal mother to de­ter­mine whether or not she’d con­sent to the sec­ond-par­ent adop­tion. Dur­ing that time, a stand­ing or­der was is­sued, re­quir­ing the chil­dren to stay in Ge­or­gia while the adop­tion case was pend­ing.

Hay­den-Lanier’s part­ner de­cided against the sec­ond-par­ent adop­tion.

“Strate­gi­cally, we dis­missed the sec­ond-par­ent, and re­filled a pe­ti­tion for cus­tody to mir­ror the ar­gu­ment of [VanLan­duyt’s] case. That case was pend­ing and at that time hadn’t gone be­fore the Supreme Court,” Chris said. “The mom filed an emer­gency mo­tion for re­lease of the stand­ing or­der … We filed an emer­gency mo­tion for con­tempt of the stand­ing or­der.”

Be­cause of the two emer­gency fil­ings, Chris said the Cobb County judge granted each party equal visi­ta­tion.

An un­known time­line

VanLan­duyt’s case be­gan in Bar­tow County, which re­ferred it to the state Supreme Court. Oral ar­gu­ments for that case were heard March 20.

“The is­sue, or the de­ter­mi­na­tion, be­fore the Supreme Court is, can you do this? Can you come to the court and ask for parental rights to be rec­og­nized via a con­tract?” she said. “They’re just an­swer­ing a le­gal ques­tion of whether or not you can ac­tu­ally do this. If they an­swer ‘yes, you can trans­fer part of your parental rights by agree­ment,’ then it has to go back to Bar­tow County for a hear­ing.”

At that hear­ing, the Bar­tow County court would de­ter­mine whether or not there was “a clear and de­fin­i­tive and un­am­bigu­ous in­ten­tion” be­tween the bi­o­log­i­cal mother and Faubert-Rocha to cre­ate a fam­ily.

“My best guess is they could have un­til the end of this year, which the dif­fi­cult part about that is that an­other 12 months goes by with no de­ci­sion and the child goes an­other 12 months with­out any kind of con­sis­tency or surety in his life,” VanLan­duyt said.

The Hob­sons’ cus­tody case is also in le­gal limbo, as their judge wants to wait and see how the Supreme Court han­dles things.

“The Supreme Court could dis­miss [VanLan­duyt’s] case and say they don’t have grounds, but they could give di­rec­tion to the su­pe­rior courts on how best to han­dle it; or they could say that my client does have rights be­cause they signed a par­ent­ing agree­ment,” Chris said.

Ul­ti­mately, Hay­den-Lanier — and Faubert-Rocha — want to be rec­og­nized as their chil­dren’s moth­ers, Sarah said.

“We’re try­ing to ex­plore av­enues at which the law would pro­vide visi­ta­tion and cus­tody rights to the non-bi­o­log­i­cal, same-sex par­ent,” she said.

For other par­ents who find them­selves in sim­i­lar sit­u­a­tions, Faubert-Rocha ad­vises get­ting as much le­gal in­for­ma­tion as pos­si­ble.

“I didn’t think that it would lead to this and I don’t think any par­ent goes into a re­la­tion­ship and mak­ing it out, think­ing this is go­ing to hap­pen,” she said.

“Be­cause there was no eq­uity in the law, there was no abil­ity for the non-bi­o­log­i­cal par­ent to es­tab­lish parental rights. The non-bi­o­log­i­cal par­ent who has been held out to be a par­ent has no rights.” —De­catur at­tor­ney Denise VanLan­duyt

At­lanta-area at­tor­neys VanLan­duyt (pic­tured) and hus­band-and-wife team Chris and Sarah Hob­son are fight­ing for their clients’ rights to cus­tody, chal­leng­ing ‘gap­ing holes’ in Ge­or­gia fam­ily law in the process. (Cour­tesy photo)

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