Wednesday, March 24, 1999

By Mike McKee

Attorneys representing an East Bay lesbian seeking parental rights over two girls birthed by her ex-lover have always billed the fight as a civil rights struggle.
They upped the ante Tuesday during oral arguments at the First District Court of Appeal by directly comparing their client's case to the U.S. Supreme Court's landmark ruling in Brown v. Board of Education, 347 U.S. 483.

That 1954 ruling, in which the high court outlawed separate-but-equal schools for blacks, was inevitable, plaintiff's lawyer E. Elizabeth Summers told a panel of three appellate justices. The same is true, she said, regarding current laws that prohibit the non-biological mother from asserting parental rights when a lesbian relationship dissolves.

"It is inevitable that someday some California court will hold that all children and all their parents be treated equally," said Summers, a partner in Oakland's Bien & Summers. "The result in this case is constitutionally compelled."

Whether the court agrees remains to be seen. But the justices who heard arguments Tuesday in In re Guardianship of Z.C.W. and K.G.W., A079097, seemed alertly aware that their decision in the case could have sweeping ramifications.

Presiding Justice Daniel Hanlon assured a large, and tense, crowd of mostly women that all viewpoints "on this very important case" would get proper airing. He and fellow Justices Marcel Poché and Timothy Reardon then ignored all time limits as they delved deeply into an issue that could change how California courts treat non-traditional families.

Current law particularly afflicts lesbians. They cannot marry and, in many counties, are prohibited from adopting each other's children because of a state-mandated opposition to adoptions by same-sex couples. In addition, case law prohibits the non-biological parent in a lesbian relationship from gaining custody or visitation rights over the objections of the birth mother.

That's why the plaintiff in Tuesday's case is trying a novel approach -- claiming de facto parenthood and seeking visitation rights through guardianship proceedings.

Justices seemed intrigued by the idea, but were cautious about bucking precedent or setting new law. After all, the First District in 1991 rejected a lesbian's de facto parent argument in a custody case called Nancy S. v. Michele G., 228 Cal.App.3d 831. (Guardianship was never an issue.)

Poché was especially talkative Tuesday, questioning whether California law permits a de facto parent outside of dependency proceedings and wondering how the so-called "visitation guardianship" sought by the plaintiffs would be set up.

Berkeley solo practitioner Alice Philipson, one of the plaintiff's co-counsel, was particularly optimistic about Poché's questions on the workings of a guardianship.

"That's kind of grappling with the nitty-gritty," she said after the hearing.

The case stems from the 1990 breakup of a five-year relationship between lesbians Kathleen Crandall and Lisa Wagner. Crandall claims to have functioned as a parent to Wagner's two girls, the youngest of whom was born through artificial insemination while the couple was together.

Barred by law from seeking visitation rights through regular means, Crandall hopes to accomplish her goal by being appointed a guardian of the two girls. Retired Alameda County Superior Court Judge Roderic Duncan agreed with the concept nearly two years ago, but still denied Crandall's request.

Civil rights lawyers hope the case leads to broader rulings on the issue in the future because, they say, current law fails to recognize the legitimacy of same-sex families.

Berkeley solo Carol Amyx, who represents Wagner, told justices Tuesday that Crandall has never proven she was a de facto parent, and pointed out that guardianships are allowed only in cases where it's shown that a birth mother has been detrimental to her children.

"The trial court erred in holding this trial at all because it wasn't presented with any basis that parental custody was in any way detrimental to the children," she said.

In addition, she said, there is "no right to use a guardianship proceeding to secure visitation rights with someone else's children."

The justices seemed to struggle with some issues, such as whether a guardianship can be granted in a situation where a loving, caring birth mother objects, and whether a "visitation guardianship" throws the door open to anyone who's ever been friendly with a biological mom.

Family law expert Joan Hollinger -- a visiting professor at Boalt Hall School of Law who participated in an amicus curiae brief submitted by the Youth Law Center and several other groups on Crandall's behalf -- reassured justices on the latter point.

"When a family is created to include individuals who are not biologically related, but are included for purposes of being a co-parent, that person is no longer a stranger," she said.

Hollinger and others -- including the National Center for Lesbian Rights and the American Civil Liberties Union -- contend that a guardianship is in the children's best interests because the absence of a woman they consider a parent is detrimental to their well-being.

Amyx, who had no amici on her side, responded by asserting that the case is not about the children's interests, but rather about a non-parent trying to usurp a birth parent's rights. She also noted how conveniently Crandall's "personal agenda coincides with the political agenda of several groups."

"This is not Brown v. Board of Education," she argued. "This is one lesbian, who is not a parent, suing another lesbian, who is a parent. This is not a civil rights case. It shouldn't be encouraged. It shouldn't be countenanced in any way."

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