How permanent is being a parent? Appeals courts in Illinois and Indiana confronted this question in cases that were both decided o
n February 16, arising in different contexts but each involving sexual minority parents.
In the Illinois case, the First District Appellate Court decided that a transsexual dad was not entitled to seek custody of the child born during his marriage, because, in the court’s view, the marriage was void from the outset and the father had no legal relationship with the child, who was conceived through donor insemination.
In the Indiana case, a lesbian who had adopted her partner’s children and was seeking to “undo” the adoption and escape any financial support obligation years after the women split up, was unsuccessful before the Court of Appeals of Indiana. That court ruled that once parental status was established, it could not be severed at the adoptive parent’s instigation.
The Illinois case, Simmons v. Simmons, is a heartbreaker. Born Bessie Cornelia Lewis in 1959, Sterling Simmons began experiencing discomfort with his sexual identity as a young boy, and was ultimately diagnosed with gender dysphoria and began testosterone therapy at 21. According to the opinion by Judge Leslie Elaine South, “he now has the outward appearance of a man, which includes facial and body hair, male pattern baldness, a deep voice, a hypertrophied clitoris and increased muscle and body mass.” Simmons had surgery to remove internal female sex organs, but not his breasts and has not had an artificial penis constructed. He still appears to have external female genitals. The surgery took place a few years after his marriage.
In 1985, Sterling and Jennifer obtained a marriage license in Chicago, presenting themselves as a man and a woman, and were married. In 1991, Jennifer became pregnant through donor insemination, their child was born in July 1992 and Sterling was listed as the father on the birth certificate.
The law generally treats a husband as the legal father of any children born to his wife. Two years after his child’s birth, Sterling himself obtained a new birth certificate as a “male.”
When the parents chose to divorce in 1998, Sterling wanted permanent and sole custody of the child. Jennifer responded that he was not entitled to custody at all because their “same-sex marriage” was invalid under Illinois law, and he was neither the biological nor an adoptive parent. The trial judge refused to grant a divorce, on the ground that the marriage was invalid from its inception, and Sterling had no standing to seek custody. However, recognizing that Sterling had been a de facto father to the child, the trial judge awarded him visitation rights.
Sterling appealed, but fared no better with the Appellate Court, which found that the trial judge’s finding that Sterling is a female “was not against the manifest weight of the evidence.” South rejected the argument that the marriage became retroactively valid when Sterling obtained his new birth certificate.
South’s conclusion was premised on the trial court’s finding that Sterling’s surgery was internal and that he still has external female sex organs, leaving open the possibility that had he undergone complete sex reassignment his claim might have been successful, distinguishing this ruling from more hostile recent appellate rulings in Florida, Kansas and Texas.
The Indiana decision, Mariga v. Flint, stresses the permanent nature of adoption, and provides a cautionary note for same-sex parents who want to undertake co-parent adoption. Lori Flint is the birth mother of two teenagers. She divorced their father in 1992, and was soon in a relationship with Julie Mariga, in which Mariga played an active role as the children’s co-parent. In 1996, Mariga adopted the children with the approval of Flint and her ex-husband as a “second parent” adoption. However, the relationship between the two women quickly deteriorated and they separated in November 1998, the children remaining with their birth mother.
Flint subsequently married a man, had a third child and moved to Georgia, making contact between Mariga and her adoptive children sporadic. When Flint’s second marriage failed and she returned to Indiana in 2003, she filed a petition seeking child support payments for the two older children from Mariga, who tried to have the matter dismissed. Instead, the trial judge ordered her to pay child support and maintain insurance for the children.
Mariga also filed a motion seeking to have the adoptions undone, arguing that Flint was really heterosexual and had misrepresented herself. She also argued that the court lacked jurisdiction to grant the adoptions in the first place, because she was not really a “stepparent,” the court having creatively reinterpreted the statute to cover second-parent adoptions.
The court of appeals rejected Mariga’s arguments, finding an adoption governs the relationship between the children and the adoptive parent, not between the parents.
“Julie argues that the children no longer wished to see her and that they were embarrassed when trying to explain that she is their mother’s former lesbian partner,” Judge John G. Baker wrote. “But she is their parent. She petitioned the Circuit Court to adopt them, and her petition was granted.”
The trial court ruling ordering that Mariga provide support to the children was upheld.