CO-PARENT RIGHTS, from p.54
remained in contact with the twins, filed custody petitions. Frank tried to quash the custody lawsuit, but a trial court found that both Joseph and Renee had standing to seek custody and ordered visitation rights for them while the case was proceeding. As Frank was appealing that ruling, the Brooke S.B. decision came down, and the state’s Appellate Division affirmed the trial court’s decision about Joseph’s standing to seek custody. After lengthy proceedings, the trial court awarded custody to Joseph, with visitation rights for Frank. Frank lost his appeal at the Appellate Division, and the New York Court of Appeals declined to review that decision. Frank is represented in his Supreme Court petition by Gene C. Schaerr of the Schaerr/ Jaffe law firm in Washington. Schaerr, a Federalist Society stalwart and a Mormon from Utah, was prominent in the marriage equality battle, representing the State of Utah in defending its ban on same-sex marriage in federal court. He also submitted an amicus brief in the Obergefell v. Hodges case on behalf of conservative legal scholars who argued that allowing samesex marriage would be harmful to the institution of marriage. In other words, Schaerr is an anti-LGBTQ legal activist, and his slanting of the facts in the petition he composed for Frank as compared to the detailed fact findings in the trial court’s decision is striking. Family law is primarily a matter of state law, but the Supreme Court occasionally gets involved when disputes raise constitutional issues. Since early in the 20th century, the Supreme Court has ruled that a child’s legal parent has constitutional rights, derived from the Due Process Clause, relating to custody and other issues. Frank’s petition argues that the New York Court of Appeals decision and those of other states that recognize the parental status of unmarried same-sex partners of biological parents in custody disputes improperly abridge the Due Process rights of those biological parents. Not all states have adopted the approach taken in Brooke S.B. by the New York courts, but this does not necessarily create the kind of patchwork regarding federal rights that the US Supreme Court might focus on. And the high court has not invariably ruled in favor of biological parents on the rare occasion when it has agreed to consider custody disputes. For example, in one notable case, it upheld a California law creating an irrebuttable presumption that a man who was married to a birth mother is the father of the resulting child, even when it is obvious, and nobody disputes, that another man was in fact the biological father. The real father in that case was denied standing to seek custody of his child.
➤ CO-PARENT RIGHTS, continued on p.56 GayCityNews.nyc | June 27 - July 3, 2019
Gay City News issue for Stonewall 50/ WorldPride, June 27, 2019