EveryBody's Guide to the Law

obligations that come with being artificially inseminated, be it by a friend or an anonymous
donor (see chapter 1). However, problems arise when the non-biological, same-sex life partner
wishes to adopt the child. The courts are split on whether such a partner can adopt the child.
If you are planning on adopting your same-sex life partner’s child, you should do so only with
the guidance of an attorney well versed in this area.
Psychological studies show that there is no valid reason why gay, lesbian, and bisexual couples
who otherwise meet the same criteria as heterosexual couples cannot provide a child with
a warm, loving, nurturing environment and would raise healthy, well-adjusted children. In an
Illinois case, the children were removed from the custody of their bisexual mother after it
came out that she was in a relationship with another woman. The children were taken from
the mother’s custody following a lengthy hearing at which everyone agreed that the children
were doing very well in their mother’s custody. On appeal, the Illinois Appellate Court held
that the fact that a parent is homosexual or bisexual, is living with her same-sex partner, or
may face community disapproval or charges of immorality were not valid reasons to change
custody. The court utilized a “sexual-orientation neutral” standard in determining the bisexual
woman’s right to custody.
Suppose a lesbian couple decides to have a baby. One of the women is artificially inseminated
with an anonymous donor’s sperm and all is well for five years. The child is brought up
with both women acting as parents. However, after five years the two women have relationship
problems and decide that it would be best for them to split up. Can the non-biological “parent”
assert any rights to custody of or visitation with the child? This is a very complex issue.
Traditionally, many judges ruled that there is only one parent—the biological one—and
therefore the non-biological same-sex parent has no right to request custody or visitation. A
growing number of courts, however, have allowed visitation to a former same-sex partner can
be allowed where a de facto parent-child relationship existed between the child and the partner
who is not the biological parent of the child.
A de facto parent-child relationship exists when the person has participated in the child’s
life as a member of the family, resided with the child, and was in a parental role long enough
to have formed a bonded, dependent relationship with the child that is parental in nature.
Further, the person must have had the consent and encouragement of the legal (biological or
adoptive) parent, and performed a share of caretaking functions at least as great as the legal
parent. This rule applies only if the non-biological “parent” was not caring for the child primarily
because he or she was being paid or otherwise compensated for his or her child-care
services. Some courts permit visitation with the child after a relationship breaks up where, on
the factors just discussed, the person is a “psychological parent” to the child, that is, the person
has been in such a close, bonded relationship with the child that the child has grown to
think of the person as a parent, even though there is no biological connection between the
two.
In August 2005, the California Supreme Court held that the non-biological lesbian partner
Gays, Lesbians, Bisexuals, and Transgenders 245