Lesbian Seeks to Deny Child Relationship with Father

Bill Would Support Such Action

SAN FRANCISCO, May 24, 2011—The real impetus behind AB 1349 seems to be a case that the National Center for Lesbian Rights has tried to keep quiet since it was settled over a year ago. According to the Santa Cruz Sentinel, Maggie Quale and Kim Smith, lesbians in a committed relationship decided to have a child through the services of a sperm donor. Maggie gave birth to twin boys. Things turned sour for the couple but positive for the children when Maggie broke up with her partner and became romantically involved with the father of her children, creating the prospect for family to be united.

CA Governor
Redefines Fatherhood

If the case had run its course, it could have created a legal precedent that would have caused a real stumbling block in the effort of those trying to redefine motherhood, fatherhood, marriage, and family. If the biological mother and father had won in this case, "we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors," said Deborah Wald, a family law attorney who worked with the National Center for Lesbian Rights, which defended the interest of non-biological mother over that of the real father.

AB 1349, would provide preferential treatment to a person who had a longer relationship with the child that the biological father and provide to have his claim of fatherhood set aside. Perhaps it will eventually lead to a woman being declared a “father”, if she had been trying to fill that role in the life of the child.

Both women, Maggie and Kim Smith are listed as parents on the children's birth certificate, and “the children carry the hyphenated last name Smith-Quale even though the pair split up five months after the birth,” reported the Sentinel. In this case, Maggie and Kim were not registered domestic partners and Kim had never formally adopted the children. The attorney Deborah Wald said, “It's the first case I'm aware of where a lesbian couple in a committed relationship has brought a child into the world, then after breaking up, the biological mother has tried to sub in the biological father."

Maggie’s lawyer, Darlene Kemp, claimed Kim Smith's attorney and the National Center for Lesbian Rights were are trying to turn the case into a gay-rights crusade when this was just a simple case regarding the rights of biological parents.

However, in a strange turn of events, in March 2010, the National Center for Lesbian Rights announced that the case had been settled to avoid a trial but the terms were not fully disclosed. Smith’s attorney said that her client would be continue to be recognized as the legal parents but called the settlement "a fragile peace."

At the same time, the mother’s attorney, Darlene Kemp, was quoted as saying, "Maggie definitely hasn't changed her opinion about whether Kim has any legal standing, but there were personal reasons why she elected to enter into a settlement. I strongly feel that had the biological parents elected to litigate the case that they would have been successful at trial since California law is very clear that there is no presumed parent issue when you have both biological parents asserting their rights to their children." AB 1349 will change that.

The Santa Cruz Sentinel reported, “It is not clear whether Wallace was granted any paternity rights in the settlement. Lawyers for Quale and Smith declined to discuss that portion of the agreement, citing confidentiality rules surrounding family law cases. A lawyer who represented Wallace in mediation leading up to the agreement could not immediately.”



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