Law News

Court Rules in Lesbian Mother's Favor

Mike Mckee
The Recorder/Cal Law
April 20, 1999

An San Francisco East Bay lesbian's attempt to gain parental rights over her ex-partner's daughters failed Monday when an appeal court rejected her novel bid for a limited guardianship.

In a case that challenged state law regarding same-sex couples, the First District Court of Appeal followed current law in ruling unanimously that a non-biological, non-adoptive parent has no standing to assert custody or visitation rights over a natural mother's children.

The court also rejected Kathleen Crandall's claim to de facto parenthood based on her close relationship with Lisa Wagner's children during a five-year partnership.

"Although appellant exhibited the characteristics of a de facto parent during her relationship with respondent," Justice Daniel Hanlon wrote, "absent any legislative or case authority granting a nonparent visitation rights over the objection of the biological parent and in the absence of any showing of detriment to the child, we cannot grant those rights here."

Hanlon, who was joined by Justices Marcel Poch‚ and Timothy Reardon, said the issue would be more appropriately addressed by the state Legislature.

The ruling in Guardianship of Z.C.W. and K.G.W., A079097, is a blow to gay rights advocates who had billed the dispute as a civil rights case that gave the court an opportunity to give homosexual couples with children the same rights afforded heterosexual couples.

"It's very disappointing that in the area of the country where there are probably more lesbian and gay parents than anywhere else that the court would fail to recognize the reality of our families and provide our children with the same rights and protections that children of heterosexuals are able to take for granted," said Kathryn Kendell, legal director of the National Center for Lesbian Rights, which filed an amicus curiae brief in support of the petitioner. "For the court to say that the issue should be left to the Legislature is, with all due respect, cowardly."

The case, which has divided Bay Area lesbians into warring camps, stemmed from the 1990 breakup of Crandall and Wagner. Crandall had sought a continuing relationship with Wagner's two girls, the youngest of whom was born through artificial insemination while the couple was together and who was given Crandall's surname as her middle name.

Wagner had shielded her daughters from Crandall, whom she claimed had tried to usurp her own parental role. Crandall had responded by seeking a never-before-seen limited guardianship.

She lost at the trial level two years ago before pursuing the issue to the First District, which heard oral arguments on March 23.

Berkeley solo practitioner Carol Amyx, who represented the birth mother, said Monday that she was gratified that the lower court's judgment had been affirmed.

"It's a victory for parents -- and in particular for parents who are lesbians -- in renewing the decision that they are entitled to the same rights as other parents," she said. "It's a decision that affirms non-discrimination against lesbians -- that lesbians who are parents have the same rights as other parents."

Amyx had also sought sanctions against Crandall, contending that the suit was frivolous. But the court refused.

"The record demonstrates that appellant sought to gain visitation rights of the children using a novel approach through guardianship law," Hanlon wrote. "As appellant points out, that other states have adopted the approach urged by her demonstrates that her action is not frivolous."