Many Lesbians Caught In Bitter Battles Over Children

The message on Georgia Prescott's answering machine includes two names: hers and a child's.

"I always keep that there," Prescott says, even though she has not seen the youngster for years. "I want her to know that she always has a home here. The other reason is to remind me that I still have a daughter, and no one can take that away from me."

The child, conceived through artificial insemination, was born to Prescott's lesbian partner during the couple's 10-year relationship. For five years the three were a family.

Yet in the eyes of California law, Prescott is a stranger to the girl, related by neither blood nor adoption, a person who was never even married to the child's biological mother.

When her ex-partner ended contact between Prescott and the girl after the couple broke up, there wasn't a thing Prescott could do about it. A Superior Court and state appeals court rejected her bid for parental rights. The state Supreme Court refused to review the case.

Such cases are the messy flip side of the past decade's boom in gay parenting.

Gay legal groups that typically devoted their energies to helping once-married homosexuals keep their children in the face of anti-gay challenges by heterosexual ex-spouses now face a different scenario: lesbians fighting lesbians over children born or adopted during relationships gone sour.

"In the past six months we probably hear about one of these cases a week, which causes me no end of distress," said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.

She describes the cases, which usually involve women rather than men, as "numbingly similar."

Couple meet, fall in love and - thanks to artificial insemination - decide to start a family. The baby will frequently carry the name of the nonbiological mother, and both women will be involved in parenting.

Couple break up and share the child's custody for a while. Then the biological mother, often after forming a new relationship, starts limiting or stopping her former partner's visits with the child. The ex-partner finds that however long the child may have called her "mom," she is a nobody to the law.

The courts' rigidness in defining parenthood comes at a cost to gay families, advocates argue, because homosexuals are locked outside the law's conventions. They cannot marry, cannot both be biological parents and, depending on where they live, may not be able to adopt.

Prescott's "daughter lost a parent in a really horrible way," said Santa Rosa, Calif., attorney Caren Callahan, who represented Prescott. "The court is creating a fiction to not deal with the reality of our families. And we need to address that issue."

These cases are painful to advocates in other ways as well. They see gays who formed families without the blessing of society or the law subsequently invoke the law's traditional view of families to fend off a former lover's parental claims.

"It is classic hypocrisy," Kendell asserts, "for a lesbian or gay couple to march down the street waving banners in favor of legal recognition for their relationship while they're blissfully happy and then, on the event of a breakup, for one of the partners to claim that no relationship worthy of legal protection or recognition ever existed."

Berkeley, Calif., attorney Carol Amyx, who has represented the biological mother in several lesbian-parenting disputes, sees no such nuances, only the law.

"The word `parent' refers to someone who has given birth to or fathered a child" or legally adopted, Amyx says. "And people who aren't one of those things aren't parents as a matter of reality and law."

Lesbian mothers, she adds, have as much right as straight mothers to raise their offspring as they see fit.

So far, California courts have agreed with her.

In a 1991 ruling in one of Amyx's cases - known as Nancy S. - a state appeals court rejected arguments that a Northern California lesbian should be given legal standing to seek custody or visitation because she was the de facto parent of two children born to her former partner during their relationship.

While the court termed the woman's situation "tragic," it refused to expand the definition of parent to include her.

To do so, the appeals panel wrote, "could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents or other close friends of the family."

The solution, the court suggested, was adoption by the nonbiological mother.

That is far from a sure thing, however. Judges in the Los Angeles and San Francisco Bay areas have in recent years allowed gays to adopt a partner's biological child as a co-parent and also permitted both members of a gay couple to adopt the same child.

But elsewhere in the state prospects of obtaining second-parent adoptions, as they are called, are far chancier. And Gov. Pete Wilson's administration has proposed regulations requiring agencies to recommend against adoptions by the unmarried.