Boston Globe

Wednesday, October 27, 1999

'Other mother' case may redefine parental rights

Trenton Bureau

The twin 5-year-olds come to visit "Meema" every other Sunday. They have their own room, and their own ever mounting pile of toys in the Union County house.

Like many modern American children, the twins are shuttled regularly from house to house as part of a court-ordered visitation schedule. What makes their circumstances unusual is Meema is the former lesbian partner of their mom.

Meema was in the delivery room to cradle them seconds after birth. She was listed as the "other mother" on the children's pediatrician and day care registration forms. She wasn't "Mommy" in the twins' eyes, but she was close.

The children are now at the center of a landmark legal case in the state's highest court. At issue is whether Meema, identified in court papers only as V.C., and others like her can remain parents in a legal sense, with custody or visitation rights.

The state Supreme Court was asked Tuesday to reconsider the traditional definition of parenthood, and to provide new legal rights to people who bond with a child but who aren't the biological parent.

The case, viewed by gay rights groups as a legal watershed, also has implications for any estranged couple where there is one biological and one non-biological parent, including unmarried heterosexual couples and even some stepparents. While many such couples presumably have wrestled with similar issues, the first such case to reach the Supreme Court coincidentally involves a gay couple.

But at its emotional center, the case is about two children's relationship with a live-in adult, and whether that connection should be continued after a breakup.

"This case is about a 5-year-old boy and girl and their right to maintain their relationship with their psychological parent," said Robin Wernik, an attorney for V.C.

The ACLU and several gay rights groups have joined the case as friends of the court on the side of V.C. They have appealed a trial court decision that severed V.C.'s visitation and custody rights, and an appellate court ruling that restored the visits but upheld the natural mother's sole custody.

In oral arguments Tuesday, Wernik urged the court to stretch state law that now says only those who adopt, sire, or give birth to a child can be considered parents. A long history of liberal common law decisions in New Jersey allowing relatives of children to remain involved in their lives over the objections of biological parents supports their case, she argued.

But a lawyer for V.C.'s former partner, who is identified only as M.J.B. in court documents, argued that the state has no authority to mandate visitation or custody when such an alternative relationship has fractured, unless the child would suffer long-term consequences.

Alfred Luciani, the attorney, said while the twins might miss V.C. they would not be seriously harmed. They bonded with V.C. only to the extent that anyone living in the home with them for the first years of their lives might bond, like a nanny or grandparent. The case should have been dismissed before any trial, Luciani said.

"Of course there would be a sense of loss. That doesn't mean the rights of the parent should be interfered with," he said.

In response, Wernik argued that the children would suffer cruel and unusual punishment if the court allowed M.J.B. to sever visitation. She cited trial court testimony of experts for both parties who said the children had bonded with V.C. The expert for M.J.B., however, said they would recover from any short-term loss.

The two women began dating in 1993, and lived together in Maplewood. M.J.B. already was researching artificial insemination at the time, her lawyer argued in his brief, but the women planned much of the fertilization procedure together.

After the births in 1994, the women purchased a home together in Union County to accommodate their bigger family. They celebrated their love in a commitment ceremony. They named each other as beneficiaries in their wills, and M.J.B. told her partner she could imagine no better co-parents, according to court records.

But the relationship soured almost two years after the births. V.C. said it was her partner who wanted out. M.J.B. moved to Atlantic County. V.C. remained in Union County. Each are now involved with new partners.

But every other Sunday, M.J.B. drives the twins to V.C.'s home for eight hours of visitation. At the end of the day, V.C. drives them back to the shore.

In brief remarks to the press after the oral arguments, V.C. said it's tough enough seeing "my children" only once every other weekend. If the court terminated that right, she said, she would be crushed.

"Imagine the feeling of being told you can never see your children again," she said.

The seven justices gave little indication how they might decide the case. Justice Gary Stein questioned Luciani's view that the court can't interfere in the case, simply because current state law doesn't recognize V.C. as a parent.

"Just because the Legislature hasn't addressed it doesn't mean the problems don't come to the court," Stein said.

Many states have wrestled with the issue, but a lawyer for the ACLU, Leslie Cooper, said the organization is looking for New Jersey to take a lead role. The high court several years ago was one of the first to grant special rights to homosexual partners to adopt children.

Other state Supreme Courts have been wary of stretching the definition of parenthood to accommodate changing lifestyles, fearing natural parents might see their own rights eroded. In California, the high court ruled: "Expanding the definition of a parent could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents, or other close friends of the family."

© Copyright 1999 Globe Newspaper Company.