You’ve heard the story before (and before that). A lesbian couple splits up. The biological mother tries to deny custody to the non-biological mother. They go to court. (In the case of Janet Jenkins and Lisa Miller, they did so for years, with disastrous results when the bio mom flouted court orders and went into hiding with the child.)
The case of Kim Smith and Maggie Quale has a small twist, however. Quale, the biological mother, is now in a relationship with Shawn Wallace, whom she and Smith used as their known donor when the women were still a couple. Quale and Wallace now want full custody of the resulting twins, reports the Mercury News. Although Smith did not adopt the children, both she and Quale are listed as parents on their birth certificate. I’m not a lawyer, but my understanding is that under California law, that should be enough to secure her rights. [Nancy Polikoff, who is a lawyer, says it’s not the birth certificate that matters, but rather the non-bio mom’s conduct.] (That’s yet another reason, however, that non-bio moms should do a second-parent adoption just in case, if their state allows it.)
The only good thing about this case, if there is one, is that Quale, who says she is bisexual, has not renounced her orientation or enlisted any right-wing help, as in so many of the previous cases. Her lawyer says Smith’s lawsuit “has put them in the painful position of asserting their rights while still appearing to support the growing effort to protect the rights of gay parents.”
Hmm. Methinks that supporting the rights of gay parents includes supporting the parenthood of non-bio parents. I’m not sure I buy her reasoning. At least she’s not being virulently anti-gay about it, though. Compared with most of these cases, that’s a small gain. For Smith, however, I fear it is not enough.
Reading the linked article, I see that Quale and the donor, Wallace, have set up a website, facebook page, etc. in order to promote their incredibly disingenuous side of the story. They rely heavily on the lack of legal rights that Smith has, while never really answering the question about why they don’t want her involved in the babies’ care.
The real obstacle here is the courts’ inability to recognize 3 legal parents rather than 2. In a sane world, they’d all have rights, and be able to get along in order to do what’s best for the kids.
Quale’s website is worth the read if only because it shows just how twisted and circular her self-serving logic is. On her account, she’s a powerless victim of that big bad NCLR. Unbelievable.
I wonder why she doesn’t want her involved in the babies’ care, also. I wonder if there was some abuse or something going on, and maybe there is some legal reason why it can’t be brought out. If you read between the lines of Quale’s website, I think there is something there we do not know.
You’re very right Karen–there may indeed be more going on here than we know. I think the case is complicated by the fact that (if the Mercury News is right) Smith is on the children’s birth certificate. My understanding is that that carries weight within the state, though not necessarily outside it. If there is some issue of abuse, then by all means Smith should be denied custody and visitation on that ground–but not on the grounds that the child now has a second biological parent who stepped in. That would set a very bad precedent for other same-sex couples who use a known donor. (And contrary to Quale’s argument on her site, that’s not a political statement, that’s a personal one that affects non-bio parents very directly.)
Regardless of the rights and wrongs here, though, I think one of the morals of the story is that same-sex couples need to get all parenting and donor agreements in writing.
Seems to me that Kim’s attorney Deb Wald hit the nail right on the head when stating that it’s the first time she’s ever seen a bio mom try to sub in the known donor for the ex-lesbian partner. What more does anyone need to understand how desperate Quale is? We’ve all seen the renounced homo card, the move away’s, the kidnappings, etc.. I’m confident this trial will prove some major intentions that Smith and Quale shared in establishing their family and that’s all the court should be concerned about. Plus, the donor was paid. Hello??? And to Karen above, that site is pathetic and desperate and leaves me wondering if there was any abusive goings on who’s to say it wasn’t coming from the bio mom herself? I hardly doubt Smith would risk it all and be as brave as she has to file a law suit if that were really her story. This case could set a dangerous precedence for ALL alternative families in California. Think about that before any of us here start questioning the already known fact that they had problems – that’s why they broke up and no different that 1/2 of straight couples in California where married, hetero couples can rest easy knowing their not going to risk losing their children when leaving a damaged marriage or partnership.
The ex-partner Kim broke off their relationship and petitioned for full custody of the twins the next day. Quale had to fight to keep her twins. Also, there was an agreement with the biological father that he was to be part of the twins life beforehand.
Dear Yang,
No, your are wrong with your statements. Kim did not file for full custody, she filed for 50/50 custody. “Petitioned” is a word that keeps coming up with Quale’s hyper exploitative web site postings. Why does this word keep coming up? Also, the “agreement” you’re sure that happened? I’m sorry, that is ridiculous. This lesbian couple was married, on Smith’s domestic partnership benefits, Quale wrote articles in the Advocate regarding issues – even around paternity (great read – I’d highly suggest it for you) while her and Smith were PLANNING their family out. They also lived together, and the babies names carry Smith’s too and on their birth certificates and the paid sperm donor only saw the children like 4 or 5 times and then moved to another state? Hmmm, I’m sorry, there does not appear to be an agreement, least of all any arrangement for donor to be an active father in that clear history of obvious intentions between the lesbian parents. Well, that is up until now, since the now “bi-sexual” Quale has moved him into her home. Horrifying. Despicable. All the information i just wrote I was able to gather from Smith’s attorney in the news article. Where are you getting your information? Hopefully not from that dreadful facebook site or website. It is absolutely imperative for anyone who cares about gay and lesbian rights to support Smith in her legal attempt at holding onto the children that her and Quale CLEARLY planned for – despite and aside from them not being registered with the state as DP’s or a legal adoption taking place. Quale has created a legal and personal fiasco here and her sites are just begging for notoriety. I wonder if she has any idea to the legal implications she has now shoved onto all other alternative type families in California and/or the country. Biology and Religion v. disenfranchised non-bio lesbian mom. Gee, i know which one I’m siding with and lets all hope the judge does too!
According to Quale’s own words, there was no agreement to involvement of the sperm donor.
When the two were seeking a sperm donor and throughout their pregnancy, Quale, the bio-mom, wrote a series of articles for “The Advocate” (www.advocate.com) about co-parenting in a lesbian relationship. A few quotes from Quale herself tell the real story: “Fortunately, our generation has decades of research confirming that kids of queer parents reach adulthood no more messed up than those with straight parents.” In the article, Quale jokes about how the sperm donor will get a “surprise” call from his son on his 18th birthday.
Another: (Regarding Quale’s firstborn child from a previous relationship) “I know that even the slightest differences between siblings can potentially drive wedges between them. Our children will already have to deal with the fact that Calvin will have a present biological father, whereas the new baby won’t.”
However, the most compelling quote of all from an article in The Advocate called “Daddy Drama”…(Regarding sperm donors) “These guys aren’t applying to become dads; they’re simply being paid for a service, a biological process, that for them ceases when they walk out of the clinic doors. They have no legal, financial, or personal role in the process. Kim and I will be the parents of our new child, not any of the donors. So why subject ourselves to the agony of choosing the right donor when there is no such thing?”
Please continue your coverage of this story and encourage all of your readers and friends to contact the NCLR to support Kim Smith’s case for 50% custody of the baby boys she committed to love and care for:
Ms. Amy Todd-Gher (atoddgher@nclrights.org)
Ms. Kate Kendell (kkendell@nclrights.org)
National Center for Lesbian Rights
870 Market Street Suite 370
San Francisco CA 94102
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I am a non-bio mom who loves my daughter dearly. I was there for her birth but ignorant of my rights of what should have been added to the birth certificate. I just believed and trusted in my partners words, I’ll never take her away from you regardless what happens.’
You can call me a lot of things but I believed in her words and have paid a dear price for the loss of my only daughter. I keep praying that her heart will change, but I know the mother of our daughter doesn’t understand how devastating it is to lose your first set of parents. I know that all to well since my mother was married three times. Meaning, three sets of new step fathers I had to get along with because my mother demanded it.
My father didn’t participate in my life after my mother got custody and it I find it rather ironic that I want to participate in my daughters life but can be limited by a restraining order or some outrageous claim just because her mother doesn’t want to deal with the fact we split.
I wasn’t the one left but I did the honorable thing and paid my ex half of what our house was worth so they could live in a nice house. I visited every weekend until she found someone new and that was the end of my visitation with my daughter. Unfortunately, my ex didn’t have the courage to tell me she was dating someone, my daughter told me and she was only 5. Ever since that day, I have be denied to be in her life.
I wonder if my ex ever thinks of how our daughter feels about telling me the truth and what happened when she did? I worry about these things. My ex doesn’t understand what goes through the mind of a child when their parents split, because hers never did. I know it all to well and am tormented every day and every year that passes by that I am not in her life.