Legal briefs

Iowa Supreme Court Rebukes Busybodies

The Iowa Supreme Court issued a unanimous ruling on June 17, rejecting efforts by a diverse group of Iowa plaintiffs to challenge a 2003 decree issued by a state judge dissolving the Vermont civil union of Kimberly Jean Brown and Jennifer Sue Perez. The ruling stated that citizens are not entitled to challenge legal rulings in which they have no tangible stake simply because they disagree with them, a rebuke to the tactic increasingly used by conservative litigation groups to interfere in sensitive, “culture war” issues, such as the recent Terri Schiavo case.

The couple sought a divorce decree to finalize the division of their assets and debts in late 2003; the dissolution of their 2002 civil union was part of that action. The decree set off a media sensation and a group that consisted of a congressman, six state legislators, a minister and a church filed a petition naming the state judge as defendant with the state Supreme Court, claiming that the divorce was invalid since Iowa does not allow same-sex marriages. Before the Supreme Court could hear the case, the judge, Jeffrey A. Neary, reformulated his decree to be a civil union dissolution, not a divorce.

The Supreme Court asked the plaintiffs if that settled their concern, but they were no happier with the state acknowledging a civil union than a marriage, and the case proceeded. Gay legal advocates, including Lambda Legal and the American Civil Liberties Union, filed a friend of the court brief opposing the petitioners.

Chief Justice Louis A. Lavorato wrote for the unanimous court, finding that the plaintiffs had no standing in the matter, so had no right to sue.

“Many people have strong opinions about marriage, as they do about divorce, child custody, zoning and many other issues, but if everyone were allowed to petition for [review by the Supreme Court] simply because of ideological objections or strongly held philosophical beliefs that an order should not have been entered, then there would be no limits to the petitions brought,” Lavorato concluded.

Gay Parent Wins In Maryland, West Virginia

Appellate courts in two states have issued important rulings in favor of gay parents, reversing adverse decisions by lower courts.

In Maryland, the Court of Special Appeals, an intermediate appellate court, ruled on June 13 that a gay man with primary custody of his son was entitled to challenge a restriction barring his same-sex partner from living with him.

In West Virginia, the Supreme Court of Appeals, the state’s highest court, ruled on June 17 that a lesbian co-parent was entitled as a “psychological parent” to seek custody of the child she was raising with her partner, who had died as a result of an auto accident, and then awarded her custody without further hearings.

The Maryland case presented a special complication, because the custody restriction had been ordered by a Virginia court. After his divorce from Annica Detthow, Karl Hedberg was awarded primary custody of their son Alex, on the proviso that the father and his four-year-old son not share a home with Blaise Delahoussaye, the boy’s godfather who entered into a relationship with Hedberg after his divorce. Subsequently, Hedberg and his son moved to a Maryland suburb of Washington, but even though Delahoussaye visited on weekends, Hedberg continued to observe the Virginia order.

After the U.S. Supreme Court issued its ruling in Lawrence v. Texas in 2003, declaring sodomy laws unconstitutional, Hedberg challenged the restriction in his new home state. The trial court, however, relying on the Constitution’s full faith and credit clause, upheld the Virginia order’s validity, finding that no changed circumstances had been identified to re-open the matter.

On appeal, Hedberg argued that any Virginia ruling made prior to Lawrence was colored by that state’s felony sodomy law, still in effect then, and that perpetuating that bias was not in Alex’s interest. Writing for the appeals court, Judge James A. Kenney, III, finding that the Virginia order was not “final,” ruled that the issue could be revisited and that Hedberg could credibly allege that Alex’s interests were adversely affected by the threat that his father could lose primary custody. The case was sent back to a Maryland district court to weight that argument.

In West Virginia, both lesbian co-parents of two-year-old Z.B.S., identified only as Tina and Chris, were injured in the auto accident. Tina was still in the hospital when Chris died, and Chris’s father, Paul, the child’s grandfather, petitioned for guardianship and ultimately custody of the child. Tina and Chris had used a sperm donor, Clifford, who helped Tina assert her parental rights, joining with her, as the child’s only surviving biological parent, in petitioning the court to grant her custody.

Tina was successful in the Family Court, but the Circuit Court disagreed, finding that under West Virginia statutes, Tina was not a “legal parent” and had no right to seek custody, even though the Family Court had found that she was the “psychological parent” of Z.B.S.

A three-judge panel of the Supreme Court of Appeals was divided. Justice Robin Jean Davis, writing for the majority of the panel, found that Tina could seek custody under a provision governing “exceptional cases” where somebody without legal parental status can intervene in a custody case, but rejecting Tina’s alternative argument that under the circumstances a “psychological parent” should be treated as a “legal parent.”

Justice Elliott E. Maynard dissented, but did not explain his grounds, though he presumably he agreed with the Circuit Court that this case would not qualify as an “exceptional case.”

Davis pointed out that the Legislature had not taken the trouble to define what it meant by an “exceptional case,” but concluded that provision should be used “only when intervention is likely to serve the best interests of the subject children.”

After reviewing the Family Court’s factual findings, Davis concluded that Tina’s characterization of herself as a psychological parent was appropriate, but said that was not enough to clinch a custody decision. However, she ruled there was no need to remand the case for further fact-finding, because “the best interests of the subject child demand” that Z.B.S. be restored to Tina’s custody.

“The tragic events that have led to the circumstances in which Z.B.S. currently finds himself have resulted in litigation over his permanent custodial placement only because too many people love this little boy,” wrote Davis. “Oh, that all of the children whose fates we must decide would be so fortunate as to be too loved.”

The award of custody to Tina “would promote Z.B.S.’s best interests by allowing continuity of care by the person whom he currently regards as his parent and would thus provide stability and certainty in his life.”

The American Civil Liberties Union, Lambda Legal and National Center for Lesbian Rights all filed briefs with the West Virginia Supreme Court, which specifically thanked them for their participation. Lambda Legal and the National Center for Lesbian Rights also collaborated on the Maryland case.

California Judges Need “HIV 101” Seminar

Two different California appeals courts reached contrasting results on June 7 and 8 in cases involving trial court orders that defendants convicted of “lewd conduct” with children be required to submit to HIV testing.

In one case, Antonio Fuentes, who had groped and French-kissed an 11-year-old girl, was required to submit to HIV testing by the appeals court. In the other, the appeals court reversed an HIV-testing order that the trial court had imposed on Joseph Myers, who pled “no contest” to groping his 10-year-old daughter.

Both cases are governed by a well-intentioned but somewhat irrational California statute, intended to provide useful information to victims of sex crimes by authorizing courts to order HIV testing of persons convicted of specified sex crimes. Since such orders come only after conviction, any victim concerned with HIV infection would presumably already have sought testing. The early treatment value of the convict testing provision is therefore dubious at best. .

In addition, the California statute states that there must be finding “that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” Both trial judges seem to have overlooked the probable cause requirement, did not make any such specific finding, but nonetheless ordered testing. That has become the routine course for California trial judges.

In the Myers case, where the defendant’s daughter was not undressed and the groping occurred through clothing, there was clearly no risk of HIV transmission that would justify the testing, and the prosecution conceded as much when Myers appealed the testing order, so the appellate court logically invalidated the testing order.

But in the Fuentes case, the court fell into a loose interpretation of the statute that will result in unnecessary testing. Fuentes penetrated the girl with his fingers, and kissed her. The appeals court focused in on the kissing, and Judge Michael Nott wrote for the appellate panel, “Contrary to appellant’s assertion, there was evidence of the transfer of bodily fluids… This evidence was sufficient to support a finding of transfer of bodily fluid and to support an order for AIDS testing.”

Nott fails to cite any authority that the bodily fluid transferred in this case would present any appreciable risk of transmitting HIV. It is worth noting that the only bodily fluids specified by name in the statute are blood and semen.

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