What About the Kids?

With all their careful deliberation about creating a family together, Elisa and Emily never negotiated its potential demise. Then the court got involved.

"Deadbeat parents are not exclusive to heterosexuals," Emily Brooke says. Unfortunately, she speaks from experience. Emily's longtime partner, Elisa Bendz, returned from work one October evening five years ago, said "I'm leaving," and did. With her she took her biological son, whose primary caretaker up to that point had been Emily; she took away her financial support as the family breadwinner; and she took a parent and a sibling away from their other two children.

The children were all conceived using the same anonymous sperm donor. They share the same hyphenated last name on their birth certificates. As infants they were breast-fed by both mothers. The couple agreed that Emily would stay home with the children, and her partner would support the family financially. It was an arrangement that couples make all the time. In their case they were bound by love and shared responsibility, not the law.

In these heady times, when gay people around the country are demanding their due legal "rights and responsibilities" as married people, it may be considered a naysayer's game to look to the possible dissolution of these loving pacts. But it is essential to do so. Because one of the critical reasons for legal recognition of same-sex marriage is the protection offered under the law to the children created in these unions--both within the framework of the marriage, and should the marriage end.

Six million to 14 million children could benefit if marriage rights were available to gay and lesbian people. That's the number of children in the United States, according to the American Civil Liberties Union, who live in homes with at least one gay parent.

"The importance of legal recognition cannot be overstated," says Corri Planck, director of policy and public affairs at the Family Pride Coalition. "People say, 'If there weren't children involved, I wouldn't have a problem with gay marriage.' But because children are involved is all the more reason to be in favor of equal marriage rights for gay and lesbian couples."

Some of the rights afforded these children if their families were legally recognized include: the right to child support if the relationship between their parents should be terminated; the right to remain in the custody of both parents or to have visitation with the non-custodial parent; the right to have both parents present at parent/teacher conferences and doctor's appointments; and the right to survivor benefits should their non-biological parent die. Second-parent adoption, available in many states but not all, does not encompass all these protections. Neither does civil union, the legal benefits of which would vary state by state.

When I met Emily and Elisa in 1995, they were as happy and as committed to one another as any couple I knew. They had made a beautiful home together in San Francisco's Noe Valley. Their devotion to each other and their relationship was evident--and indelible, in the form of tattoos of each other's names with the inscription por vida, "for life."

They had been together for several years when they decided to have children. This was not a decision made lightly or spontaneously. They were both in their mid-30s and felt emotionally and financially ready to parent. As the office manager and client service provider at a lesbian-owned and -operated sperm bank, Emily was fluent in fertility. She and Elisa had long conversations about possible male co-parents, whether to use a known donor or an anonymous one, and who would carry the children. Both women were healthy and longed to experience pregnancy, so they decided to both try to conceive and have the babies within a few months of each other.

Elisa became pregnant first; Emily achieved pregnancy six months later. Elisa delivered a full-term, healthy baby boy named Chance. When Chance was 10 days old, Emily had a sonogram that revealed she was carrying twins. She gave birth to a boy, Ry, and a girl, Kaia, at 29 weeks. They were born dangerously small, at 2-1/2 pounds each, and spent months in the neonatal ICU. The mothers were present for one another's births, and cut the umbilical cords. Each breast-fed and pumped breast milk for all three infants. Despite the stressors--two postpartum moms, three infants, two premature--the mothers coped amazingly well, with love and humor.

I went to stay with them for six weeks at that point as a friend and nanny, since Elisa had to return to work and Emily was at the hospital a good deal of the time. We soon learned that Ry had Down Syndrome and would need open-heart surgery as soon as possible. It was another enormous challenge, but they rallied as a couple and as new parents. As further evidence of their commitment as a family, they met with a lawyer about second-parent adoption.

When the twins were a little over a year old, the family bought a house and moved from their small San Francisco apartment to Placerville, a country town in the Sierra foothills. They chose the area with the future in mind--a big yard for the kids, exceptional services for children with special needs, a sense of small-town safety. They had friends with young children in the area. Elisa commuted to her job in the city; when at home, she was increasingly exhausted and harried. As was Emily, whose days were nonstop relay races of need-meeting for three kids of different ages, abilities, food tastes, sleep schedules and temperaments. The couple fought, of course; it was stressful, but they sought out marriage counseling and seemed happy.

Elisa came home from work one day in the fall of 1999 and told Emily she was leaving. She took Chance and moved out that same day. At first there was visitation; Elisa paid the mortgage for a few months, but that was the extent of her financial support. With all their careful deliberation about creating a family together, they never negotiated its potential demise. It didn't occur to them, at least not to Emily. If it had, well, Elisa had assured her she would always take care of her, especially since, with the future demands of Ry's health unknown, it was doubtful Emily would return to work once the kids were school age. Elisa wasn't legally compelled to provide alimony or child support; all Emily had was her word.

Emily went on state assistance. She was told at the time she applied for aid and consulted with child support services that she had no legal recourse against Elisa. And she didn't want to sue her--as shattered as she felt, this was still her family. She hoped Elisa would continue to be involved with the twins and help support them. Most of all, she didn't want to jeopardize her relationship with Chance.

In 2002, the child-support services agency of El Dorado County decided--over the objection of the state attorney general's office--to take Elisa to court for child support. This was the first case of its kind in California; there have been only a handful of similar cases throughout the country. That it came not from the Bay Area but from a rural, conservative part of the state was all the more noteworthy. The agency presented a case that these women were a family, that they had intentionally created these children together, and that Elisa was legally bound to support them as a father would. The agency cited cases in which non-married biological parents and even longtime stepparents were found to have legal obligations to their children.

Although Emily had no control over the agency's decision to sue, Elisa cut off contact with her and the twins. Emily had gone from having the support of another parent and being the mother of three with a six-figure income to being a single mom of twins--one with a developmental disability who has had many surgeries and requires a feeding tube--and living in Section 8 housing, on assistance at poverty level. Now she was denied any further visitation with Chance. Elisa went as far as to move, change her phone number, and return, unopened, presents Emily sent him. (Elisa couldn't be reached for this article. Her lawyer had no comment.)

In court Elisa minimized the nature of their relationship and denied sharing parenting duties. I was at that hearing. Until that point, I'd thought, "I can't judge her decision to leave; I only know Emily's side of the story; we all have our breaking points..." But to hear her lie on the stand about her relationship with and her role in creating these children in order to avoid supporting them--particularly when she's in the financial position to do so--was appalling. Here was someone who had decried the homophobia of laws that didn't recognize families headed by same-sex parents, but was exploiting these same laws to her financial benefit--and to the financial detriment of the taxpayers who had been called on to provide the estimated $100,000 thus far worth of medical care, monetary aid and housing subsidies that any "deadbeat dad" in the United States would have been held accountable for.

In a move that surprised even the optimists among us, the El Dorado County Superior Court ruled in the county's favor and found that a parent/child relationship existed between Elisa and the twins. The court ordered her to pay child support, one of the first decisions of its kind in a same-sex relationship.

"These children would not exist today but for the joint decision to create them," the judge, Gregory Dwyer, wrote in his decision. Supporting them "should be [Bendz's] responsibility and not the responsibility of the taxpayer."

Immediately upon the financial ruling, Elisa's lawyer filed a writ with the appellate court, where this case has now lingered for more than a year. Emily will be represented by the attorney general's office that didn't want this case brought to trial in the first place.

(Originally appeared in the Fairfield County Weekly)