Two loving parents and a child make a family – regardless of the gender of the parents.
If two heterosexual parents, whether married or not, separate, either parent can seek custody. However, if two same-sex parents separate, the non-biological parent does not have custody under Georgia law.
This is where three lawyers come in to resolve this discrepancy: Denise VanLanduyt, Chris Hobson and Sarah Hobson.
“All of these things happened before marriage equality,” VanLanduyt said. “Because there was no equality in the law, there was no way for the non-biological parent to establish parental rights. The non-biological parent who was portrayed as a parent has no rights.”
Her client, Maribel Faubert-Rocha, said she was not the only one facing a case of this kind and would not be the last.
“We decided to start a family together and the laws should protect both the parents and the child,” she said. “At the end of the day, this is just a mother trying to get the rights to her son.”
We are a family?
“We find many same-sex couples in this situation,” said VanLanduyt. “These two women met in 2008, seven long years before this landmark civil rights decision. They cannot marry, but they want to start a family.”
VanLanduyt's client and her then-girlfriend had artificial insemination and had a son. Faubert-Rocha is the non-biological mother.
“Their relationship deteriorated and they separated. As part of the separation, they entered into an agreement, a contract, which we call a parenting agreement,” VanLanduyt said. “It's the same agreement that divorced mothers or fathers make.”
Then the biological mother decided to back out of the contract and refused to allow Faubert-Rocha access to her son. VanLanduyt filed a custody petition, which the judge dismissed on the grounds that there was nothing they could do.
“I wonder how she's going to do that then? If you're raising this child and the child knows her as the mother, how can we get her recognized as the other legal parent?” VanLanduyt said.
VanLanduyt's case is based on the 14th Amendment to the U.S. Constitution, which states that the government cannot intervene without cause and dictate to a parent how to raise their child.
“The question is whether you can share your parental rights, which are constitutionally protected, through a contract [for the biological parent]with a person of your choosing? And if you do that, do you have to continue down that path?” VanLanduyt said.
Chris and Sarah Hobson represent Linda Hayden-Lanier, who is seeking custody of her children. (Photo courtesy)
The Hobsons' client, Linda Hayden-Lanier, is in a similar situation. She and her partner separated and agreed on a shared schedule in which both could spend time with their two children. Shortly after the agreement was reached, Hayden-Lanier's partner informed her – as agreed – that she planned to move across the country with the children in 50 days.
Chris said they immediately filed for second-parent adoption, a different route than VanLanduyt took. He said the judge wanted the biological mother to decide whether or not to consent to the second-parent adoption. During that time, a permanent order was entered requiring the children to remain in Georgia while the adoption petition was pending.
Hayden-Lanier's partner decided against stepchild adoption.
“Strategically, we rejected the second parent and filed a new custody application to refute the argument of [VanLanduyt’s] case. That case was pending and had not been heard in the Supreme Court at that time,” Chris said. “The mother filed an emergency motion to vacate the standing order… We filed an emergency motion for contempt of the standing order.”
Because of the two emergency motions, the Cobb County judge granted both parties equal visitation rights, Chris said.
An unknown schedule
VanLanduyt's case began in Bartow County, which transferred it to the state Supreme Court. Oral arguments in the case were held on March 20.
“The question or decision before the Supreme Court is: Can you do that? Can you go to court and ask that parental rights be recognized by agreement?” she said. “They're just answering the legal question of whether or not you can actually do that. If they answer, 'Yes, you can transfer some of your parental rights by agreement,' then the case has to go back to Bartow County for a hearing.”
At that hearing, the Bartow County court would determine whether there was “a clear, final and unequivocal intent” between the biological mother and Faubert-Rocha to start a family.
“My assessment is that they have until the end of this year. The difficult part is that another 12 months will go by without a decision and the child will have to spend another 12 months without any stability or security in his life,” VanLanduyt said.
The Hobsons' custody battle is also in legal limbo as the judge wants to wait for the Supreme Court's decision.
“The Supreme Court could dismiss Denise's case and say there are no grounds for it, but it could give instructions to the higher courts on how best to handle it; or it could say my client has rights because she signed a custody agreement,” Chris said.
Ultimately, Hayden-Lanier and Faubert-Rocha want to be recognized as mothers of their children, Sarah said.
“We are trying to explore ways to legally grant the non-biological, same-sex parent visitation and custody rights,” she said.
Faubert-Rocha advises other parents who find themselves in a similar situation to obtain as much legal information as possible.
“I didn't think it would come to this, and I don't think any parent enters into a relationship expecting something like this to happen,” she said.