Bringing the Law into Line with Real Life: The Story of the Allison D. Case

Posted on January 6th, 2009 by Katherine Franke

Columbia Law School’s Sexuality and Gender Law Clinic Director and co-Director of the Gender and Sexuality Law Program, Suzanne Goldberg, has recently published a new essay discussing the significance of the Allison D. v. Virginia M. case – the first case to come before the New York State Court of Appeals raising the rights of lesbian co-parents. It challenges us to think about what we mean when we think of ‘law reform” litigation, and reveals the story behind this important, ground-breaking case:

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 parentchild 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. 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 1991that Alison, as a “biological stranger” to her son, lacked standing to petition the court for visitation. 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,” was not her son’s parent in the eyes of the law.

Download the entire article here.

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