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In Matter of William “TT” v. Siobhan “HH,” a
lesbian couple procreates using one partner’s ova and the
sperm from a family friend – a gay man, William TT, who agreed
to provide gametes in exchange for limited parental rights in the
baby. After the baby was born, William, like Michael H, makes
claim to parenthood, despite the unconventional way in which he
came to father the child. Again, the court must deal with
the issue of “who is family” in a topsy-turvy world. Both
Michael H. and William TT were gamete-providers to a woman in a
relationship with another partner, but does, or should, genetic
authorship entitle them to the role of parent? Or, do we
want to keep them out if it is against the mother’s wishes?
Michael H. had a different result than William TT. In the
former case, the court denied the biological father any legal relationship
with his biological daughter, divesting him completely of his claim
to parenthood. From the procreative standpoint, the reasoning
was sound. The two-parent family is the fundamental reproductive
unit of traditional American society, literally the functional
reproductive organ of our culture. In the view of the U.S.
Supreme Court, it deserved the highest legal protections. To
have held otherwise, would have compromised its integrity. William
TT was luckier. Not only did the court recognize his paternity,
but against the wishes of the mother, they gave him broad visitation
rights to his children.
Why the difference? One reason was that Michael H. threatened
the health of the traditional reproductive organ of American society,
but William TT did not. In the Michael H case, there were
three parties making claim to the child. Carole – the
biological and legal mother, Gerald – Carole’s legal
husband, and Michael – the child’s biological father. The
Court’s job was to choose which of the two men would be the “natural” father
for the purposes of the law. Its decision was facilitated
by a state statute that defined a child born of a married couple
to be the couple’s natural child. In deciding in Gerald’s
favor, the Supreme Court simply applied the statute to the facts
in front of it. When the child was born, Carole and Gerald
were married, albeit living apart, but statutorily that made Gerald
her father. This rule created a fence around the family,
legally protecting the reproductive unit and the parenting choices
that the married parents made. If mate choice is so evolutionary
important from the genetic perspective – humans picks their
marriage partners because of the genes they carry – it is
important to shield these decisions from interlopers. For
William TT, the existence of a traditional family was not a consideration. The
question for the court was different. Its decision was not
about who would be the better father, but whether one father was
better than none.
William TT and Michael H both successfully procreated, seceding
their genes to another generation. Why should they care so
much about whether their paternity is recognized? Perhaps
the reason is advertisement. A part of any male’s strategy
to reproduce must take into account his ability to attract mates. To
interest females in his desirability, he may chose any number of
different approaches aimed at establishing himself as a good gene
donor, as well as a capable provider for her children. Carole
may well have chosen Gerald D. to father her children because his
great wealth ensured that they would be well provided for, and
likely to have considerable reproductive opportunities of their
own. Health and vitality in a male are another important
consideration for females because it suggests good genes to make
fit children. What better way to market himself then to show
off the fruits of his labor.
BODY: SUMMARY Albany County Family Court Family Law (Copyright
2000 New York Law Publishing Company, New York Law Journal, October
2, 2000)
RESPONDENT MOTHER had two children by being artificially inseminated
with the sperm of petitioner. Respondent and her lesbian live-in
partner had raised the children together for several years. They
broke up but continued to parent the children together. The parties
had executed a written document formalizing limited visitation
for petitioner father. After several arguments concerning access
to the children, petitioner filed this request for a set visitation
schedule and for more frequent visitation. The mother, who considered
petitioner a sperm donor and not a parent, argued that visitation
should be limited to the pre-existing agreement. Looking at the
best interests of the children, the court ruled that petitioner
should be allowed greater visitation on a more traditional visitation
arrangement, despite the children's unconventional family situation.
Judge Maney
MATTER OF WILLIAM "TT" 1 v. SIOBHAN "HH" 1
QDS:04703218-The issues of this proceeding having duly come on
for a hearing before me as one of the Justices of this Court at
a regular term held in and for the County of Albany on April 10,
2000, and at adjourned dates thereafter, and having considered
the proof submitted by the parties and the Law Guardian, and due
deliberation having been had thereon,
NOW, I do hereby make the following finding of the essential facts
which I deem established by the evidence and reach the following
conclusions of law:
Petitioner (hereinafter the father) is the biological father of
six-year-old Liam and four-year-old Faolain. Respondent (hereinafter
the mother) is the biological mother of the children. The children
live with their mother and have lived with her since their birth.
The children were the result of a planned pregnancy by the mother
and her former partner, Anita BB.1 The children were conceived
through artificial insemination whereby the father was the known
sperm donor. The mother and Anita BB. are now separated as a lesbian
couple, but - at the time of the hearing - were living together
with the children in the same household and were continuing to
share parenting duties as they had since the children were born.
The Court has been advised, however, that they no longer reside
together in the same household.
After Liam was born, the mother and Anita BB. agreed to allow
the father and his partner, Randy HH., (N1) visit the child from
one to three times a week at the mother's home. Shortly after Liam
turned two years old, the father took Liam for an occasional overnight
visit. Following Faolain's birth, however, the father and mother,
along with their partners, signed a written document formalizing
the father's visitation schedule. This agreement provided, as is
relevant here, that the father could visit with the children one
day a week, two weekend days (including an overnight) a month and
one week a year during the months of July or August. All financial
matters relating to the children (child support, child care, or
other expenses) were the responsibility of the mother and Anita
BB.
According to the mother, the purpose of this agreement was to
clarify the father's role with respect to the children. She claimed
that she and Anita BB. never intended the father to be a member
of their family unit, but wanted him to be an important part of
the children's lives. The mother views the father's request for
additional visitation as an attempt to threaten her family.
After signing the agreement, the father continued to exercise
regular visitation with the children consistent with the parties'
agreement. The father testified that after the mother and Anita
BB. moved into separate residences in May 1988, he began to encounter
difficulties with exercising his visitation with the children,
which apparently conflicted with Anita BB.'s time with the children.
He claimed that Anita BB. believed that she could take time out
of his visitation when she felt like it, with little or no notice.
Difficulties continued even after the women reconciled and moved
back in together in February 1999. In July 1999, following an argument
between the father and mother, the mother ordered the father to
stay off her property and to pick up and drop off the children
on the sidewalk in front of her home. He filed this petition shortly
thereafter.
At the hearing, the parties agreed and stipulated that the mother
will have sole legal custody of the children and the father will
have full access to the children's educational, medical and health
care records and providers. The sole issue remaining, therefore,
is the father's visitation schedule with the children. The mother
contends that the father's visitation should be limited to the
times provided for in their agreement. The father contends that
it would be in the best interests of the children that there be
a set visitation schedule and asks that he be granted more frequent
visitation than the agreement allows.
The mother testified that the children view the father as their
father and that they love him. Nevertheless, the mother views the
father as the sperm donor, not as the parent of her children. The
mother testified that she chose the father as a known sperm donor
based on an understanding that the father's visitation rights would
be limited to what was set forth in their written agreement. Had
she known that he would seek increased visitation on a regular
basis, she would have chosen not to have her children with him.
The mother also testified that Anita BB. has provided financial
and emotional support for the children throughout their lives.
The mother and Anita BB. no longer have an intimate relationship,
but continue to cooperate and support each other in parenting the
children together.
The Court notes that neither the mother nor any of the other witnesses
testifying at the hearing expressed concerns regarding the adequacy
of the father's parenting skills or claimed that the children were
being adversely affected by the current visitation arrangement
or would be harmed by visiting their father on a more frequent
basis.
The 29-page report of Randy Cale, Ph.D., the court-ordered psychologist,
was entered into evidence as Court exhibit No. 1. Cale's report
was based upon interviews and psychological assessments of the
mother, the father, Randy HH. and Anita BB., interviews with the
children, and collateral telephone conversations with the children's
pediatrician and teachers. Cale found that the mother and Anita
BB. have served as the children's primary psychological parents
and have provided excellent care for them, despite having struggles
in their own relationship. He noted that the father and Randy HH.
have been involved on a consistent basis in the children's lives
and that the children value that relationship. Cale noted that
the father had not been involved in any decision-making process
with respect to the children. Nevertheless, he had no concerns
about the father's ability to care for and/or parent the children.
Cale opined that the parties' understanding as to the father's
role in the children's lives was not spelled out sufficiently,
resulting in misinterpretation and conflict. Cale did not believe
that at this point the parties could work together more cooperatively.
He opined that it would be appropriate if the father had consistent,
regular access to the children through a relatively traditional
timesharing arrangement.
Liam is entering grade school in the Fall and is enrolled by the
mother in numerous sport activities on Mondays, Tuesday and Saturdays.
The Court notes that the mother has enrolled him in some of these
activities in contradiction of the Court's temporary visitation
order. Liam and his sister are bright, energetic children, and
appear to be well adjusted. They have no reported physical or mental
concerns or disabilities. Liam has experienced difficulties with
making transitions from one activity to another. This difficulty
is being adequately addressed through structure and routine in
his day.
Conclusions of Law
The issue presented here what is the appropriate schedule of visitation
between the father and his children. Initially, while the Court
is cognizant of the parties' written agreement and understands
its underlying purpose (see, Respondent's exhibit C), the Court
is not bound by it. Rather, in determining the appropriate visitation
schedule, the focus here - as in all custody and visitation matters
- is the best interests of the children (see, Eschbach v. Eschbach.
56 NY2d 167).
In this case, the children are fortunate to have two dedicated
and concerned biological parents who love and care for them. The
evidence adequately establishes that the father is a fit parent,
who has been consistently involved with the children since their
birth. To the mother's credit, she realized that it was important
for the children to know their father and, through her actions,
encouraged their relationship. The children recognize the father
as their biological father and have developed a close and loving
relationship with him. The Court-appointed psychologist, who had
the opportunity to interview all of the adults and children in
this matter, recommended the father have visitation on a more traditional
visitation arrangement despite the children's nonconventional-family
situation. The Law Guardian, who interviewed the children, agreed
that this recommendation was in the children's best interest. The
Court concurs.
Clearly, under the facts presented here, the relationship between
the children and their father must be protected and encouraged,
not restricted. Accordingly, the Court finds that it is in the
best interests of the children that they have regular and frequent
visitation with the father and that a precise, consistent and regular
visitation schedule is established. This schedule, recited below,
takes into consideration the children's ages and maturity, the
father's willingness and ability to care for them, the recommendations
of the Court-appointed psychologist and the Law Guardian. Therefore,
it is
ORDERED that Pursuant to the parties' stipulation, respondent/mother
will have sole legal and physical custody of Liam and Faolain;
and it is
ORDERED that petitioner/father will have visitation with Liam
and Faolain on the following schedule, with such other and further
visitation as the parties may agree:
a. Alternate weekends from Saturday at 9:00 a.m. until Sunday
at 6:00 p.m. commencing the second Saturday after the date of this
order. If the Monday following petitioner/father's weekend visitation
is a holiday which the children have off from school, then visitation
will be extended until 5:00 p.m. on Monday.
b. Wednesday nights from after school until 7:00 p.m. If the children
are off from school on Wednesday, visitation will be from 4:00
p.m. until 7:00 p.m.
ORDERED that respondent/mother is not to schedule any non-urgent
appointments or activities for the children on Wednesdays or on
weekends, unless the parties agree. Petitioner/father will see
that, while in his custody, the children participate in all school
functions, regularly scheduled activities, competitions or performances
in which the children are involved; and it is
ORDERED that each parent will be entitled to have the children
with him/her for an extended peroid of two weeks during the children's
summer vacation. Each parent will notify the other, in writing,
on or before April 1st of each year specifying the weeks selected.
If the parents cannot agree, the respondent/mother's choice will
prevail in even-numbered years and plaintiff/father's choice will
prevail in odd-numbered years. The children will have free access
to the telephone so that they may speak with the other parent during
vacations; and it is
ORDERED that the parties will alternate Thanksgiving Day, Christmas
Eve and Christmas Day. The Thanksgiving Day holiday will be from
10:00 a.m. to 8:00 p.m. The Christmas Eve holiday will be on December
24th from after school until 8:00 p.m. or, if there is no school,
from 10:00 a.m. to 8:00 p.m. The Christmas Day holiday will be
on December 25th from 10:00 a.m. until 8:00 p.m. Petitioner/father
will start this alternating cycle and will be entitled to Thanksgiving
Day in 2000; and it is
ORDERED that petitioner/father will have visitation with the children
on Father's day from 10:00 a.m. to 6:00 p.m. Respondent/mother
will have visitation with the children on Mother's Day from 10:00
a.m. to 6:00 p.m.; and it is
ORDERED that the party who does not have physical custody of the
children on their birthdays will be entitled to visit with the
children on those days for a two hour period, at a time that the
parties agree; and it is
ORDERED that the parties will alternate all week-long non-summer
school vacations with respondent/mother having physical custody
of the children during the first non-summer school vacation after
the date this order is signed. Non-summer school vacation visitation
will begin at 6:00 p.m. on Sunday and end at 9:00 a.m. on the following
Saturday, unless the parties agree otherwise: and it is
ORDERED that petitioner/father will provide transportation to
and from visitation. Pick-up and drop-off will be at the children's
school or at respondent/mother's residence as appropriate to the
schedule; and it is
ORDERED that the mother, the father, and the children will have
unrestricted daily telephone access to each other; and it is
ORDERED that, as the parties' have stipulated, petitioner/father
will have full access to the children's educational, medical and
health care records and providers; and it is
ORDERED that respondent/mother will keep petitioner/father informed
of all major decisions regarding the children's health, education,
and medical treatment, and it is
ORDERED that respondent/mother will keep petitioner/father apprized
of the children's school(s) and medical provider(s); and it is
ORDERED that the parties will advise each other and the Law Guardian
of their current address and any proposed changes in their place
of residence; and it is
ORDERED that the parties will encourage and facilitate visits
and do nothing to denigrate the other parent in the presence of
the children, nor permit any third party to do so.
This constitutes the decision and order of this Court.
n1. Fictitious names.
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