How to Bring Your Kids Up Queer: Family Law Realism, Then and Now

• Date: 01 September 2021
• Author: Kris Franklin & Noa Ben-Asher

311

How to Bring Your Kids Up Queer:

Family Law Realism, Then and Now

KRIS FRANKLIN* AND NOA BEN-ASHER**

Introduction

Paula Ettelbrick fought for us.1

As a pragmatic and radical litigator,2 Ettelbrick spent years trying to

use a frequently uncomprehending and often outright hostile court system

1. “Us” having an overlapping array of potential constituencies. LGBTQ+ community

certainly. But also, probably, all those of any identity who are committed to liberatory change.

2. We note the irony here that some of these adjectives may at rst blush appear contradictory,

and that any of them could potentially be deployed as modiers for the others. Real people are

complex, and we believe Paula Ettelbrick’s work exemplies all these descriptions and many

more.

* Kris Franklin is Professor of Law and Director of Academic Initiatives at New York Law

School. She worked under Paula Ettelbrick’s supervision as an intern at Lambda Legal Defense

and Education Fund and now teaches and researches in family law, LGBTQ+ rights, judicial

rhetoric, and legal pedagogy.

** Noa Ben-Asher is the James D. Hopkins Professor of Law at the Elisabeth Haub School

of Law at Pace University. They were a student of Paula Ettelbrick at N.Y.U. School of Law, and

now teach and study family law, legal theory, torts, and gender, law and sexuality.

Published in Family Law Quarterly, Volume 55, Number 3, 2021–2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

312 Family Law Quarterly, Volume 55, Number 3, 2021–2022

to protect LGBTQ+ Americans.3 While her work took her into the many

areas of law that touched queer lives, a special focus and passion of her

advocacy was reserved for queer families.

Paula also tried to warn us.

In the absence of legal recognition for the families we construct, queer

lives are rendered not just invisible but virtually nonexistent; we become

legal strangers to our loved ones in ways that violently obliterate our lived

realities.4

Ettelbrick wanted the law to recognize queer lives as they were actually

experienced. In Alison D. v. Virginia M., Ettelbrick (unsuccessfully) urged

New York courts to respect the parenting relationship formed between a

mother and the child she had been raising with her former female partner.5

In seeking visitation for the petitioner, who was not a biological or adoptive

parent, Ettelbrick urged the courts to see and acknowledge the reality of

3. Ettelbrick spent more than 25 years in public life as a visionary LGBTQ+ advocate,

working with a variety of organizations including Lambda Legal Defense and Education Fund,

lamBda legal, https://www.lambdalegal.org/ (last visited Oct. 26, 2021); the National Center for

Lesbian Rights, nat’l ctR. FoR lesBian Rights, https://www.nclrights.org/ (last visited Oct. 26,

2021); the International Gay and Lesbian Human Rights Commission, now known as OutRight

Action International, oUtRight action int’l, https://outrightinternational.org/ (last visited Oct.

26, 2021); the National Gay and Lesbian Task Force, nat’l lgBtQ task FoRce, https://www.

thetaskforce.org/ (last visited Oct. 26, 2021); and the Empire State Pride Agenda, which disbanded

after 2015, see Jesse McKinley, Empire State Pride Agenda to Disband, Citing Fulllment of

Its Mission, N.Y. times (Dec. 12, 2015), https://www.nytimes.com/2015/12/13/nyregion/

empire-state-pride-agenda-to-disband-citing-fulllment-of-its-mission.html. See National Gay

and Lesbian Task Force Mourns the Passing of LGBT Rights Leader Paula L. Ettelbrick, nat’l

lgBtQ task FoRce, https://www.thetaskforce.org/national-gay-and-lesbian-task-force-mourns-

the-passing-of-lgbt-rights-leader-paula-l-ettelbrick/ (last visited Nov. 13, 2021); David W. Dunlap,

Paula L. Ettelbrick, Legal Expert in Gay Rights Movement, Dies at 56, N.Y. times (Oct. 8, 2011),

https://www.nytimes.com/2011/10/09/nyregion/paula-l-ettelbrick-legal-expert-in-gay-rights-

movement-dies-at-56.html.

4. “Legal strangers” in the sense of having not dened and legally acknowledged familial

connection. The lack of cognizable familial status can devastatingly deprive nonlegal parents

from having any opportunity to raise or even see the children they thought of as theirs. See, e.g.,

In re Z.J.H., 471 N.W.2d 202, 206–09 (Wis. 1991) (concluding that an intended lesbian mother

who was not legally permitted to co-adopt with her former partner was not a “parent” within the

meaning of state statutes), overruled in part by In re H.S.H.-K., 533 N.W.2d 419 (Wis. 1995).

5. 572 N.E.2d 27 (N.Y. 1991), overruled by Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488

(N.Y. 2016). “Unsuccessful” to the extent that Alison’s visitation was denied by the court fairly

handily, absent exploration of its own precedents that might have led to a different outcome,

id. at 30, but with a strong dissent raising those very precedents written by Judge Judith Kaye.

Id. at 30–33 (Kaye, J., dissenting) (among other compelling points, analyzing the relevance

of the court’s previous decision to grant family status to unmarried male partners to maintain

rent-controlled housing after one partner died). For further discussion of Kaye’s dissent and the

ultimate success of both Ettelbrick’s and Kaye’s reasoning, see supra p. 239, Andrew Schepard,

Judith S. Kaye: A Chief Judge for Families and Children.

Published in Family Law Quarterly, Volume 55, Number 3, 2021–2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.