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Victory for lesbian mother after Michigan court refused to hear custody case

PinkNews Staff Writer February 23, 2009

A family court cannot refuse to hear a child custody case because it involves children whose parents are lesbians, the Michigan State Court of Appeals has ruled.

Lambda Legal and the American Civil Liberties Union of Michigan represented Diane Giancaspro, a lesbian mother, in the appeal.

In August 2007 she filed papers asking a Michigan trial court to determine custody of the three children she and her ex-partner, Lisa Ann Congleton, adopted together in Illinois before moving as a family to Michigan.

When the couple’s relationship ended, Ms Congleton moved to dismiss Ms Giancaspro’s custody case, arguing that their adoption was invalid under the Michigan Child Custody Act and citing Michigan’s anti-gay constitutional amendment.

Michigan has explicit policies banning same-sex couples from adopting.

In September a trial court granted Ms Congleton’s motion, holding both parties’ parental rights unenforceable in Michigan.

This cast doubt on whether the children were effectively orphans in Michigan and whether both parents would be able to do such essential things as authorise medical treatment at a public hospital, enrol them in school, or recover a lost child from a local police department.

In March last year Lambda Legal and the ACLU of Michigan filed a brief with the Michigan Court of Appeals asking the court to reverse the trial court’s ruling, arguing that it violated the Full Faith and Credit Clause of the US Constitution.

It protects the validity of judicial decree, such as adoptions, across state lines.

“This is a victory for children in Michigan,” said Kary L. Moss, ACLU of Michigan Executive Director.

“We are thrilled that the appeals court has reversed the trial court’s decision.

“Concluding that children of gay parents have no protections in Michigan’s courts was not only wrong, but extremely dangerous.

“Today gay parents and their children can rest easier knowing that they again have access to Michigan courts.”

This is the second appeals court in the US to address whether an anti-gay constitutional amendment concerning marriage has any impact on the parenting or custodial rights of gay men and lesbians.

In June 2008, Lambda Legal won a similar case when a lesbian mother argued that Ohio’s constitutional amendment rendered the agreement she had obtained years earlier to share custody of her son with her former partner unenforceable.

As in this case, the court brushed aside her argument about the constitutional amendment to reaffirm longstanding legal principles prohibiting attacks on child custody orders years after their entry.

California, Maryland, Massachusetts, Nevada, New Jersey, and New York have policies prohibiting sexual orientation discrimination in the adoption process.

An individual’s sexual orientation is not a basis for exclusion in Connecticut, Colorado, Illinois, Indiana, Pennsylvania, Vermont, and Washington DC.

Other states have bans on gay couples or any unmarried couples adopting.

It is estimated that gay and lesbian parents are raising 4% of all adopted children in the United States, approximately 65,500 children.

Three percent are being raised by single lesbians and gay men and 1% by same-sex couples.

The US Census in 2000 estimates indicate that 6% of children in non-kin care, with caretakers other than extended family members, are being raised by gay, lesbian, and bisexual foster parents, a total of 14,134 of the nearly 500,000 children living in foster care.

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