Family law cases as law reform litigation: unrecognized parents and the story of Alison D. v. Virginia M.

• Author: Goldberg, Suzanne B.

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking--and disturbing--in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, we might be especially inclined to think that love should carry some weight in determining whether a parent-child relationship will be recognized. Yet even here, again, love is often not relevant to the analysis. While an adult might feel like a parent, be treated like a parent, and be "Mom" or "Dad" to the child, in many states that adult will not actually be a parent within the law, absent adoption or biological parentage. For families in those states, a non-legal parent may have no legal recourse if a couple separates and the "legal" parent bars him or her from seeing the child. As a matter of law, the non-legal parent and child in this situation are no closer than strangers.

Ironically, given the law's disinterest in love, the chief hope for the non-legal parent to regain contact with his or her child lies in showing the court the love that once defined the family and continues to define the parent-child relationship. Put another way, non-legal parents must persuade the court to see the family as it once was. if the court does not understand that the adults and children before it once functioned as a family, claims that the parent-child relationship should survive the parents' breakup have little chance of success.

The case of Alison D. v. Virginia M. (1) provides an important opportunity to examine this complex relationship between family life and family law. Although it was decided in the early 1990s, the case and surrounding advocacy present questions that remain in play today, and the decision represents one significant point on the spectrum of family recognition decisions that continue to shape the lives of many families. The case arose after Alison's former partner, Virginia, barred Alison from seeing the child whom the two women had been raising together. Despite many efforts by Alison's lawyers to tell the family's story during nearly three and a half years of litigation, New York's highest court held in 1991 that Alison, as a "biological stranger" to her son, (2) lacked standing to petition the court for visitation. (3) Simply put, the New York Court of Appeals found that Alison, despite being called "mommy" and having "nurtured a close and loving relationship with the child," (4) was not her son's parent in the eyes of the law.

To explore the law-life relationship, this Article presents the story of Alison D. on three levels. The first is the personal story of the parties to the case--or at least the little we can glean from court opinions and other published accounts; the remainder is under seal, as is traditional with family law cases in New York. (5) The second tells of lawyering for social change within the confines of family law and examines the strategies used to present Alison's family life within a legal framework that denied her the opportunity to tell her story. The third level takes the long view, looking both at the many legal changes in the nearly two decades since the case was decided and at the decision's continued force despite those changes. (6)

At each of these levels, the question was not whether Alison was a good parent but rather whether the courts would permit Alison to show that she was a parent at all. The account here thus takes as true the facts about the relationship between Alison and her son that were alleged by Alison and largely uncontested by Virginia, (7) and then focuses on the challenges presented as Alison sought to translate her life experience into legal protection.

This multi-tiered approach to the telling of Alison D. highlights, in turn, the core conceptual question for the enterprise of family law that runs through the layers of the story: How closely should family law correspond to the realities of families' lives? This Article aims not to answer that question directly but rather to show how the question shaped the parties' interactions and strategies, as well as the decision's impact on the development of family recognition law in New York and elsewhere.

More broadly, the discussion below demonstrates that cases like Alison's can and should fall into the category of "law reform" litigation. Most often, this label is attached not to family law cases but rather to high-profile federal constitutional challenges to government actions, such as the detention of enemy combatants or the placement of religious symbols in state parks and public buildings. On the surface, family law litigation may appear to have little in common with these kinds of cases, given its typical focus on fact-intensive evaluations of private relationships.

Yet Alison's case and others like it seek to transform the law, rather than just resolve individual conflicts, much like plaintiffs in sweeping constitutional cases. And Alison's lawyers' central task, the same as for lawyers handling the prototypical law reform case, was to persuade the court that the status quo was unacceptable and that legal change was required. Her advocacy strategy had to be tailored to present a story that was sufficiently compelling, both on the facts and on the law, to make her desired reforms seem both reasonable and necessary.

1. THE PRE-LITIGATION STORY, IN CONTEXT

   1977 was an exciting time for gay people in the United States. Just eight years after the Stonewall riots in New York City marked the start of the gay liberation movement, (8) lesbians and gay men were coming out in greater numbers than ever before, no longer concealing their sexual orientation in their workplaces, families, and communities. (9) In major urban areas, in particular, a busy world of activism and organization had taken off. Lambda Legal Defense and Education Fund (now Lambda Legal), the nation's largest legal organization focused on lesbian and gay rights, had been incorporated just four years earlier. (10) The longest-standing national lesbian and gay organization focused on grassroots organization and political activism, the National Gay Task Force (now the National Gay and Lesbian Task Force), was also in its infancy, founded, like Lambda, in 1973. (11)

   While these and similar organizations were focused on creating a new political world for lesbians and gay men, a small but growing number of lesbian couples were also taking steps that had been largely unthinkable just a decade earlier. With the help of friends, sperm banks, and doctors, these couples began planning for and having children together. (12) Although these couples were not nearly as networked or strategic as the political and legal groups, their initiatives to create new family forms were no less socially and politically transformative.

   1. The Alison/Virginia Family Relationship

      Alison D. and Virginia M. were among these couples. They met in the fall of 1977 and began a relationship. (13) By the following spring, they shared a home and a life together in Putnam County, New York, an area about eighty miles north of New York City. (14) Two years later, in 1980, they started planning in earnest to have children. Like most prospective parents, they talked extensively with each other about how they would approach parenthood. But, given that having children was not the norm for lesbian couples at that time, they also talked with relatives, friends, and a therapist to think through what it would mean to have a two-morn household.

      Although today there are websites aplenty and a small cadre of well-trained lawyers to assist lesbian couples contemplating parenting, (15) consulting with a lawyer was not the obvious thing to do at the time that Alison and Virginia began planning their family. What little law existed regarding lesbian parents did not even begin to address how lesbian couples might provide legal protection for their families. In some jurisdictions today, prospective parents like Alison and Virginia can plan to secure the non-biological (or non-adoptive) parent's relationship with the child through "second-parent adoption," which is akin to step-parent adoption. (16) But in the late 1970s and early 1980s, when lesbian couples were first beginning to have children via physician-assisted insemination, the idea that two women could present themselves to a court, as a couple, and seek legal recognition as their child's mothers was not yet a realistic possibility, either for parents or advocates. (17) Indeed, most states barely had laws in place regulating the legal status of children born to married couples with sperm from an unknown donor, let alone legal frameworks for determining the parental rights of lesbian couples raising children together. (18)

      Instead, at that time, virtually all of the limited, scattered case law regarding the status of lesbian mothers arose in the context of post-divorce custody and visitation disputes between the lesbian mother and her former husband. (19) Why so few cases? As Rhonda Rivera, an early scholar of lesbian and gay rights, observed in a landmark 1979 article, lesbian mothers and gay fathers feared losing friends, family, jobs, and, most importantly, their children, if their sexual orientation became known. (20) For many courts, the fact that a mother was a lesbian was itself considered contrary to her child's best interests, regardless of her parenting abilities or relationship with the child. (21) Even if a lesbian mother was permitted to retain custody of her children, restrictive court orders often barred her from associating with other lesbians, including...