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Beyond Limitations in the Legal Definition of 'Parent': What Lesbian-mothers Assert in Legal Courts in America

ARITA Keiko
Abstract:
This article overviews what lesbian-mothers assert in American courts, using the references of Polikoff, N. D., Woodhouse, B. B., and Minow, M..etc. First, the author shows that courts impose severe punishments upon lesbian-mothers in custody battles aganst ex-husbands, even now. In the 80's, courts began to employ a judgment criteria named the 'nexus test.' A nexus test prohibits depriving lesbian-mothers of custody merely because they are lesbians, as long as their children are not harmed by them. The author went through 30 cases retrieved using lexis.com. In 15 of the cases, the judge decided against the lesbian-mother for the stated reason that there is or will be a risk. For example, in the case of Talor v. Talor (2002), the circuit judge decided there was a potential risk that the children would be teased in the future. Next, the author introduces custody battles between lesbian-mothers and separated lesbian partners or sperm donors, which show limitations in the established definition of a parent. For example, in V.C.v. M.J.B.(2000), it was asked whether the ex-partner was 'psychological parent' or not. The case of Thomas S. v. Robin Y.(1994), weighed the doctrine of estoppel and blood relationship. It was asked whether the man, who was the donor of the child, disavowing custody in a written document, could later withdraw this agreement and claim a father's rights.


Key words : Lesbian-mother, Custody battle, Psychological parent, Second-parent adoption, Functional approach